Pa. Lightning Rod Co. v. Bd. Of Educ. Of Cass Twp.

• Decision Date: 14 October 1882
• Citation: 20 W.Va. 360
• Court: West Virginia Supreme Court
• Parties: Pennsylvania Lightning Rod Co. v. Board of Educationof Cass Township.

20 W.Va. 360

Pennsylvania Lightning Rod Co.

v.Board of Education of Cass Township.

Supreme Court of Appeals of West Virginia.

Submitted June 12, 1882

Decided October 14, 1882.

165 770| l. Corporations created by statute must depend, both for their powers and the mode of exercising them, upon the true constrction of the statute creating them. (p. 365.)

2. The statute, quoad the corporation, Is an enabling act, not only in regard to the powers conferred, but also as to the mode prescribed for exercising those powers, and unless the mode so prescribed is observed by the corporate body its acts will not bind the corporation, (p. 366.)

3. The members of a corporation aggregate cannot separately and individually give their consent, or enter into a contract, in such a manner as to oblige themselves as a collective body or board, (p. 368.)

4. Under the provisions of chapter forty-five of the code of 1868, by which each board of education of the several townships of the counties of the State is created a corporation and its duties prescribed, the members of such board, acting individually and separately and not as a board convened for the transaction of business, cannot make a contract or promise that will obligate or bind them as a corporation, (p. 8(38.)

5. As such board can be expressly bound only by joint and corporate acts, so it is only from such acts, done either by the board as a body, or by its duly authorized agents, that any implication can be made binding it in law. (p. 369.)

Writ of error and supersedeas to a judgment of the circuit court of the county of Monongalia, rendered on the 20th day of March, 1878, in an action in said court then pending, wherein the Pennsylvania Lightning Rod Company was plaintiff, and the Board of Education of Cass township was defendant, allowed upon the petition of plaintiff.

Hon. A. B. Fleming, judge of the second judicial circuit, rendered the judgment complained of.

The facts of the case are fully stated in the opinion of the Court.

Berkshire ft Sturgiss for plaintiff in error cited 2 Abb. Dig. 27, 28, 82 36, Id. 125 § 21.

P. II. Keck for defendant in error cited the following: Aug. Corp. p. 106 § 4; Id. p. 177 § 8; Abb. Nat. Dig. p. 13 § 14; 11 Wheat. 392; Code ch. 45 § 5: Abb. Nat. Dig. p 27 §§ 124-128; Id. p. 27 § 97; 1 Whar. §§ 662, 663.

Snyder, Judge, announced the opinion of the Court: On the 7th day of October, 1872, the plaintiff brought an action of assumpsit in the circuit court of Monongalia county to recover from the defendant, the Board of Educatiou of Cass township, in said county, two hundred and one dollars and fifteen cents, the price of lightning rods furnished and erected by it on the various school houses in said township at the request of the defendant. To. this action the defendant pleaded non-assumpsit and issue was thereon j oined. The case was continued on the record until the March term, 1878, at which a trial was had before a jury and a verdict found for the defendant. The plaintiff moved the court to set aside the verdict upon the ground that it was contrary to the evidence, which motion the court overruled, and on the 27th day of March, 1878. entered judgment for costs against the plaintiff. During the trial the plaintiff took four several bills ot exceptions which were signed and made parts of the record. The first states, that, after the plaintiff had introduced evidence tending to prove a contract made by it, in 1871, with a majority of the members of the Board of Education of Cass township for the erection of lightning rods as in the declaration mentioned, but not at a meeting of said Board assembled for the transaction of business, but separately and apart from each other, the plaintiff moved the court to instruct the jury:

"That a majority of the said Board, at the time of the alleged contract, were competent to make the same."

The court refused so to instruct the jury, but gave the instruction with this addition thereto:

"If made as a Board convened for the transaction of business."

To so much of the instruction as contains the words added by the court, and to the giving of the instruction with said addition, the plaintiff excepted.

The second bill of exceptions shows, that the plaintiff, after introducing evidence tending to prove the same facts set out in the first, moved the court to instruct the jury:

" That the acts of a majority7 of a body politic (such as the Board of Education of Cass township was in 1871), are binding on the whole corporation when confined to its ordinary transactions and consistent with the original objects of its formation."

Which the court also refused to give, but gave the same with these words annexed thereto:

"But such acts must be those ot the Board convened for the transaction of business as a Board."

To the adding of said words, and to the giving of the instruction with'such addition, the plaintiff again excepted.

The third bill of exceptions states, that after the plaintiff had introduced evidence tending to prove, that it by its duly appointed agent, in July, 1871, contracted and agreed with all the members of the said Board, separately and apart from each other, except the secretary, and not in Board meeting, to furnish and erect, on eight public school houses in Cass township, the lightning rods, upon the terms set forth in the plain tiff's declaration, and that each of said members, except the secretary, agreed and consented when separate and apart as aforesaid that the plaintiff might so furnish and erect the said rods, and that it did accordingly furnish and erect the said rodts on said school houses according to said agreement twenty days or more prior to the 12th of August, 1871, and immediately afterwards delivered to the president of said Board a written guarantee as to the quality, &e., of said rods which it was required to do under its said contract with the members of said Board, and he received and accepted said guarantee on behalf of the Board without objection, but which acceptance wras not at a Board meeting nor in the presence of any other member of the Board; and then the defendant offered to read in evidence to the jury a copy of the proceedings of said Board at a special meeting held August 12, 1871, without proving that the plaintiff had ever been notified of the action of the Board at said meeting, to the reading of which the plaintiff objected, but the court overruled said objection and said proceedings were read and the plaintiff excepted. The proceedings thus read are as follows:

"At a special meeting of the Board of Education of Cass townsliip, Monongalia county, West Va., officers present James A. Miller, president; A. J. Maple and A. Evans, clerk A. S. Halfin, held at Stumptown, in Cass township, county and State aforesaid, on the 12th day of August, 1871, the following business was transacted:

" On motion, it was ordered, that the Pennsylvania Lightning Rod Company be notified to remove the rods from the school houses in ("ass townsliip, as they had put them on without consent of the Board. No business further being before the Board, they then adjourned.

"A. S. Halfin, Secretary.

"I certify that the above is a true copy of the proceedings of the Board of Education of Cass township at their meeting on the 12th day of August, 1882.

"D. Wildman, Secretary."

The fourth and last bill of exceptions, after giving a statement of the facts, which the evidence of the plaintiff tended to prove, substantially as that contained in the third exception, states that the defendant asked the court to instruct the jury:

"That before the jury can find for the plaintiff, they must find from the evidence that the defendant, as a Board of Education of Cass township, contracted to and with the plaintiff for the purchase and erection of the lightning rods in the declaration and hill of particulars mentioned, either by itself as such Board in session, or by an agent appointed by it in session to contract for the same, or that said Board, as such, afterwards ratified, assented to or accepted said rods and work."

To the giving of which instruction the plaintiff objected, but the court overruled the objection and gave said instruction to the jury and the plaintiff excepted.

In my view of the subject, the first, second and fourth bills of exceptions raise but a single legal question and may, therefore, be considered together. If the individuals, except the secretary, composing the Board of Education of Cass township, as constituted in the year 1871, as such individuals, acting separately and apart from each otber and not as a Board, could make a contract, binding upon the defendant, for furnishing and erecting lightning rods on the public school houses of said township, then the action of the court complained of by the plaintiff in each of said exceptions was erroneous, otherwise it was not.

In ancient times, it was held that corporations aggregate could do nothing except by deed under their common seal. But this principal must always have been understood with many qualifications; and seems inapplicable to acts and votes passed by such corporations at corporate meetings. It was probably, in its origin, applied at common law and limited to such solemn proceedings as were usually evidenced under seal, and to be done by those persons who had the custody of the common seal, and had authority to bind the corporation thereby, as permanent official agents. Be this as it may, the rule has been broken in upon in a vast variety of cases in modern times, and cannot now, as a general proposition, be supported. A corporation, like a natural person, can grant or convey land only by deed; yet there are many things...