Plains Common Consol. School Dist. No. 1 v. Hayhurst, 5066.

• Decision Date: 05 December 1938
• Docket Number: No. 5066.,5066.
• Citation: 122 S.W.2d 322
• Parties: PLAINS COMMON CONSOL. SCHOOL DIST. NO. 1 OF YOAKUM COUNTY v. HAYHURST.
• Court: Texas Court of Appeals

122 S.W.2d 322

PLAINS COMMON CONSOL. SCHOOL DIST. NO. 1 OF YOAKUM COUNTY v. HAYHURST.

No. 5066.

Court of Civil Appeals of Texas. Amarillo.

December 5, 1938.

Appeal from District Court, Yoakum County; Louis B. Reed, Judge.

Suit by the Plains Common Consolidated School District No. 1 of Yoakum County, Texas, against Warner Hayhurst and others for an injunction to restrain the defendants from interfering with the operation of the schools of the school district, wherein Warner Hayhurst filed cross-action. From a judgment dissolving a restraining order previously issued, denying the plaintiff temporary relief, and granting a temporary injunction in favor of the defendant, the plaintiff appeals.

Reversed and remanded, with instructions.

Lawrence L. Barber, of Seagraves, Crenshaw & Dupree and Jas. H. Milam, all of Lubbock, J. E. Garland, of Lamesa, and R. P. Moreland, of Plains, for appellant.

W. A. Griffis, Jr., of Seagraves, and Bradley & Wilson, of Lubbock, for appellee.

FOLLEY, Justice.

On September 12, 1938, the appellant, Plains Common Consolidated School District No. 1 of Yoakum County, Texas, acting through a majority of its trustees, filed suit in the district court of Yoakum County against Warner Hayhurst and the remainder of the trustees of such school district. The appellant alleged that Warner Hayhurst had theretofore been employed as superintendent of schools for such district, but that he was no longer in such employment; that the appellant had employed H. W. Taylor as superintendent for the school years 1938-1939 and 1939-1940; that Taylor had taken over the duties as superintendent and had proceeded to open the regular fall term of such school on September 12, 1938; and that on such date Warner Hayhurst and the other defendants created a disturbance in and about said school and were interfering with the orderly conduct of such school. The appellants prayed for an injunction restraining the defendants from interfering with the operation of the school.

The trial court entered a temporary order restraining the defendants from interfering with the operation of the school and set the cause down for hearing for September 21, 1938 to determine whether a temporary injunction should issue pending the trial on its merits.

Warner Hayhurst, the appellee herein, filed his answer and cross-action, making H. W. Taylor a cross-defendant in his cross-action, and alleged that he was upon April 5, 1938 duly elected by the majority of the qualified trustees of the district as superintendent for the school years 1938-1939 and 1939-1940; that on April 6, 1938 a majority of the duly qualified trustees entered into a written contract with him for such employment; that such contract had been approved by the county school superintendent of Yoakum County; that H. W. Taylor, the acting superintendent, did not have a valid contract; that the appellee presented himself at the school house on September 12, 1938 to perform the duties of superintendent, but that a majority of the board of trustees refused to permit him to so act; that such conduct on the part of the trustees constituted a breach of his contract; that he was duly qualified to act as superintendent; that the school district did not have sufficient funds to pay his salary and that of Taylor; that the trustees were issuing vouchers and paying Taylor a salary as superintendent; that such payments constituted a misappropriation of the funds of said school district, and, unless restrained from so doing, said trustees would issue other warrants to Taylor; that he, therefore, would not be able to collect his salary as superintendent and had no adequate remedy at law; and asked for a temporary injunction restraining the school board from paying out any further sums to Taylor, and that upon final hearing said injunction be made permanent and his rights as superintendent be recognized.

On September 17, 1938, after two hearings on the matter, the trial court entered an order dissolving the restraining order theretofore issued, denied the appellant school district any temporary relief, and granted on behalf of appellee a temporary writ of injunction restraining the school board from issuing any further vouchers to Taylor pending a hearing on the merits. From such judgment granting the temporary injunction the appellant school district has brought this appeal attacking the authority of the court to grant the temporary injunction under the record as presented.

It is conceded by the parties that the Plains Common Consolidated School District No. 1 is a consolidated common school district with seven trustees. A portion of such trustees are elected upon the first Saturday in April of each year. The appellee, Hayhurst, in April, 1938, was superintendent of such school and had been such superintendent since 1936. The contract under which he was then acting was to expire June 30, 1938. Before the April election in 1938 the board of trustees was composed of J. V. O'Neal, E. D. Webb, Mrs. Mollie Smith, Mrs. H. D. Heath, Jr., A. M. Howard, Roy Fitzgerald and A. N. Addison. Of this board O'Neal was president and Mrs. Heath was secretary. In the election for school trustees on Saturday, April 2, 1938, K. W. Whisenant was a candidate for trustee. Whisenant was not a member of the school board at that time. At the close of the election he was reported to have been elected in the place then held by J. V. O'Neal. No other changes were effected in the personnel of the school board, although Mrs. Mollie Smith was reported to have been re-elected.

On Tuesday night, April 5th, following the election on Saturday preceding, a meeting of the school board was held. At such time the results of the Saturday election had neither been canvassed nor declared, and no certificate of election had been issued to Whisenant. Notwithstanding such fact, Whisenant, in company with the appellee, Hayhurst, appeared before the county judge of Yoakum county, took an oath of office as trustee and attended the school board meeting. At such meeting J. V. O'Neal, who was then president of the school board, suggested that, since it had been reported that Whisenant had been elected in his place, he would step aside and allow Whisenant to act as trustee. The school board voted to seat Whisenant and proceeded to elect Mrs. Smith its president, and E. D. Webb its secretary. After such action O'Neal allowed Whisenant to take his seat but remained in the assembly room without any voice in the proceedings. Thereupon a motion was made to elect the appellee as superintendent to succeed himself. The motion was put to a vote and three of the old trustees voted for the motion and three against the motion. Whisenant voted for the election of appellee and such motion was declared carried in favor of Hayhurst's selection as superintendent for the next two years. The next day, April 6, 1938, a written contract was entered into between Hayhurst on the one hand and Whisenant, Howard, Fitzgerald and Addison on the other, as the purported majority of the trustees of the school district. Such instrument, which provided that it should become operative on September 1, 1938, unless otherwise agreed upon, was approved by the county school superintendent of Yoakum County on the day it was executed. Thereafter, on April 11, 1938, the Commissioners Court of Yoakum County met and canvassed the returns of the trustee election and declared Whisenant and Mrs. Smith duly elected. On this same date a commission of election was issued to Whisenant which was signed by J. V. O'Neal in his official capacity as president of the school board, and by Mrs. H. D. Heath, Jr., secretary, although at the meeting on April 6th, Mrs. Smith had been elected president and E. D. Webb secretary of the school board. After receiving this commission Whisenant took another oath of office as trustee, which, according to his testimony, was about May 15, 1938.

On June 7, 1938, a contract was made by a majority of the trustees of such school district employing H. W. Taylor as its superintendent for the school years of 1938-1939 and 1939-1940, such contract to become operative, unless otherwise agreed upon, on July 1, 1938. The contract with Taylor was signed by Mrs. Smith, Mrs. Heath, E. D. Webb and K. W. Whisenant, as members of the school board, the latter member having obligingly signed both contracts in question. At the time the contract was made with Taylor there is no contention made that the four trustees who signed it were not duly qualified as such trustees. The contract with Taylor was not approved by the county superintendent. His excuse for not approving it was that he had theretofore approved the contract of Hayhurst for the same position.

About July 11, 1938, the school board, by a majority vote, notified the appellee that his contract had expired on June 30, 1938, that he was no longer superintendent, and requested him to turn over to the secretary of the school board all property and books in his possession. The appellee appealed from such action to the county superintendent of Yoakum County, who held a hearing on August 17, 1938. At such hearing it developed, and the superintendent found, that the notice upon which the appeal was predicated referred to Hayhurst's old contract made in February, 1936, and had no reference to the purported contract of the date of April 6, 1938. Arthur Cotton, the county superintendent, testified in the hearing before the trial court that upon his learning at the hearing before him that the notice did not refer to the instrument of April 6th, but referred to the old 1936 contract of the appellee, he dimissed the hearing and "threw the litigants in the case out of court." However, regardless of such action in declaring the hearing dismissed, he entered an order, apparently without the knowledge of the trustees of appellant, which not only found that the notice from which the appeal was made referred to the old contract...