Pierce v. Sullivan

• Decision Date: 05 October 1920
• Citation: 224 S.W. 872,189 Ky. 193
• Parties: PIERCE v. SULLIVAN.
• Court: Kentucky Court of Appeals

224 S.W. 872

189 Ky. 193

PIERCE v. SULLIVAN.

Court of Appeals of Kentucky.

October 5, 1920

Appeal from Circuit Court, Russell County.

Action by A. E. Sullivan against John Pierce. Judgment for plaintiff, and defendant appeals. Affirmed.

J. H Stone, of Jamestown, for appellant.

Lilburn Phelps, of Jamestown, for appellee.

SETTLE J.

This action was brought by the appellee, A. E. Sullivan, under the provisions of Civil Code of Practice, §§ 480, 483, to recover of the appellant, John Pierce, the the office of chairman of the division board of trustees of educational division No. 1 of Russell county, to which he (appellee) claimed, as alleged in the petition, to have been duly elected, but of which, as further alleged, the appellant, at the instigation of the county school superintendent, had wrongfully taken possession and was attempting to deprive him. The answer of appellant denied appellee's right to the office and his (appellant's) usurpation of same, attacked the legality of the election under which appellee claims it, and alleged his own election thereto and consequent right to take possession thereof and enter upon the performance of its duties. After the filing of such other pleadings as were necessary to complete the issues, the introduction of evidence, and submission of the case, the circuit court declared appellee entitled to the office in question and to perform its duties, and ordered appellant to surrender to him the office and all records appertaining to same. From the judgment manifesting these rulings the latter has appealed.

Appellee's right to the office in controversy is asserted by virtue of an election of March 1, 1920, in which, it is claimed, a quorum and majority consisting of 9 of the 14 trustees of the subdistrict composing educational division No. 1 participated, and that 8 of the 9 trustees present and participating in the election voted for appellee as chairman of the division board of trustees of educational division No 1, the vote of the ninth trustee present being cast for one Conner, and that the majority of votes thus received by appellee secured his election and warranted the announcement of that fact, made by the chairman presiding at the election after the vote was taken. On the other hand, it is contended by appellant that the election of March 1st, under which appellee claims the office in controversy, was and is void, and that he is entitled to same by virtue of his election thereto at a subsequent meeting of more than a quorum of the trustees of the subdistricts of educational division No. 1, held March 17, 1920, at which he received a majority of the votes of such trustees.

Before entering upon a discussion of the grounds of appellant's objection to the validity of appellee's election, it will be necessary to ascertain the authority for such an election and the manner of holding it. The desired information may be found in the Common School Law as contained in Kentucky Statutes (Carroll's Ed. 1918) §§ 4426a2, 4426a4, 4434a1, and 4434a2. Section 4426a2 provides for the division, by the county superintendent of schools, county judge, and county attorney, of each county into educational divisions, and for the division of each of such educational divisions into subdistricts. Section 4426a4 provides for the election of a trustee from each of such subdistricts. Section 4434a1 prescribes the qualifications and term of office of the trustees to be elected from the sub-districts, the time and manner of electing them, and provides that after being elected they "shall serve until their successors are duly elected or appointed and qualified as herein provided." The general powers and duties of trustees of the subdistricts respecting the schools situated therein are specifically defined by section 4434a3 of the statute. Section 4434a2, which applies to the election under consideration in the instant case, is as follows:

"The county superintendent of schools shall meet the trustees so elected from the various school subdistricts each educational division at his office on the first Saturday in March following the date of their election, proper notice having been given in writing to each trustee as to the time and place of such meeting for the purpose of organizing the trustees so elected into a division board of school trustees by choosing one of said trustees to be chairman and one to be secretary of said division board.

The county superintendent of schools shall be a member of such division board of his county, but shall only vote upon any matter in case of a tie vote, and then he shall cast the deciding vote.

Any vacancy that may exist in the trusteeship of any school subdistrict shall be filled by appointment by the county board of education and to them petition may be made by voters of the subdistrict.

Should the office of chairman of a division board become vacant the county superintendent as soon as the election has been held to elect a subdistrict trustee, as above provided, shall call a meeting of said division board and shall then proceed to elect another chairman, and until a chairman is so elected such division board may choose one of its members as a temporary chairman." It is conceded by appellant that the election of March 1, 1920, at which appellee claims to have been elected to the office in question, took place on the first Saturday in March after the November election, 1919, at which trustees were elected from the subdistricts of educational division No. 1, and further conceded by him that the meeting of March 1, 1920, was called by the county superintendent of schools, after written notice to the trustees of the subdistricts of educational division No. 1 for the purpose of electing a chairman and secretary of the division board of trustees of that educational division; but he insists, nevertheless, that the election then held is void for the following reasons: (1) That the county superintendent of schools was not present and did not preside as chairman at or during the election; (2) that a quorum of the trustees of subdistricts in educational division No. 1 was not present; (3) that 5 of the persons claiming to be trustees of subdistricts in that division present and participating in the election, and whose...