Poling v. Bd. Of Educ. Of Dist. Of Philippi

• Decision Date: 07 December 1901
• Citation: 50 W.Va. 374,40 S.E. 357
• Parties: POLING v. BOARD OF EDUCATION OF DISTRICT OF PHILIPPI.
• Court: West Virginia Supreme Court

40 S.E. 357

50 W.Va. 374

POLING

v.BOARD OF EDUCATION OF DISTRICT OF PHILIPPI.

Supreme Court of Appeals of West Virginia.

Dec. 7, 1901.

MANDAMUS TO BOARD OF EDUCATION.

1. Mandamus does not lie to enforce against a hoard of education the payment of a claim for supplies furnished for use in school houses, which has not been reduced to judgment against such board or merged in an order issued therefor.

2. Mandamus does lie to enforce the payment of an order issued by such board and for the satisfaction of a judgment recovered against it.

3. When a board of education refuses to allow or disallow a claim for such supplies, and refuses to consider it at all, mandamus lies to compel it to act upon the claim, but not to control it in so doing, or to compel an allowance of the claim or the issuance of an order therefor.

(Syllabus by the Court.)

Error to circuit court, Barbour county; John Homer Holt, Judge.

Petition of John W. Poling for a writ of mandamus to the board of education of the district of Philippi. From an order refusing the writ, petitioner brings error. Reversed.

J. Hop Woods, for plaintiff in error.

Sam V. Woods, for defendant in error.

FOFFENBARGER, J. This is a writ of error to a judgment of the circuit court of Barbour county, quashing an alias alternative writ of mandamus issued upon the petition of John W. Poling, agent, suing for the use and benefit of his principal, James Paul, for the purpose of enforcing against the board of education of the district of Philippi, in said county, the payment of $630, under and in pursuance of the following contract:

"This agreement, made this 7th day of October, 1899, by and between J. W. Poling, agent, party of the first part, and G. A. Lough, J. S. Thacker, and David Sturm, parties of the second part, members of the board of education of Philippi district, Barbour county, state of West Virginia: That the said parties have purchased, and do hereby purchase, of the said first party, the following named articles at the following prices, to wit:

                -----------------------------------------
                |No.|Names of Articles.    |Price.      |
                |---|----------------------|------------|
                |18 |Maps of West Virginia.|$12 50 each.|
                |---|----------------------|------------|
                |18 |Historical Charts.    |$22 50 each.|
                |---|----------------------|------------|
                |   |Total                 |$630 00     |
                -----------------------------------------
                

''The said articles to be fully equal to samples shown, and are to be shipped on or about the 20th day of October, 1899, to Philippi post office and address, or Philippi express office, or Philippi freight office, Barbour county, West Virginia, for the said second parties, for which the said second parties agree to pay to the said first party the sum of six hundred and thirty dollars. Witness our hands this seventh day of October, 1899.

"G. A. Lough, President.

"David Sturm,

"J. S. Thacker,

"Commissioners."

The original writ was served by delivering a copy thereof to the president of the board of education, and a motion to quash the return of service was sustained, and an alias mandamus nisi awarded. Service of the latter was made upon the secretary of said board, and then the court sustained a motion to quash said preliminary writ. The petition shows that said contract was made, and the maps and the charts were delivered to the president of said board; that said articles were such furniture and appliances for the school house as the law authorized the board to purchase; that, although petitioner had fully performed said contract, the board refused to pay said sum of $630, or any part thereof, and to issue to the petitioner or his principal an order therefor, or any part thereof, upon the sheriff of said county, or to make any order whatever in respect thereto; and that, when said contract was entered into, said board had assembled and was in session as a board, acting after due notice to all the members thereof. The prayer is that an alternative writ of mandamus may be awarded, directed to said board of education, to show cause, if any it can, why it should not be required to audit the said sum of $630, with interest thereon from said 7th day of October, 1899, provide for its payment by a special levy, if necessary, upon the taxable property within said district, and draw an order for the same upon the sheriff of said county in favor of the petitioner, together with the costs of the proceeding.

This proceeding is brought under section 37 of chapter 45 of the Code, which reads as follows: "All school houses, school house sites and other property belonging to any board of education and used for school purposes shall be exempt from execution or other process, and from lien on or distress for taxes or county levies; but when any order of the board upon the sheriff of the county, or judgment or decree for a sum of money against the said board has been presented to such sheriff without obtaining payment, payment thereof may be enforced by the circuit court by mandamus or an order for a specific levy on the property taxable in the district." The only case found, or cited, in which said section has been construed, is that of Canby v. Board, 19 W. Va. 93. That was an action of assumpsit, in which the declaration contained a special count setting up an order issued by the board of education for the amount sued for and also common counts in assumpsit. The court decided in that case that such an action cannot be sustained upon an order issued by a board of education, nor upon an original claim for which such order has been issued, and that the remedy of the person holding such order is by mandamus from the circuit court of the county. It was not there decided that mandamus will lie to enforce against a board of education the payment of a claim for which an order has not been issued. All that is said in the opinion, delivered by Judge Haymond, in respect to such claim, is that: "When there is no dispute between the board and the party who makes the claim for building, etc., then, of course, it is supposed by the law that a proper order will be made and delivered to the claimant.

But if in such case, or In any case where the party had a claim against the board, the board refused to give au order for its payment, it would be competent for the claimant to sue the board and obtain judgment therefor; but for the reasons above stated I do not see that a judgment, when obtained against the board, would place him in any better situation under the law than a proper order on the sheriff, such as was given in this case."

In respect to claims against a county court the following statutory provision is made: "No suits shall be brought against a county court for any demand for a specified sum of money founded on contract, except an order on the county treasury, until such demand has been presented to such court and been disallowed by them in whole or in part. But if the court neglect or refuse to act on such demand by the close of the first session after that at which it is so presented, or of the second session after it is filed with the clerk, pursuant to the preceding section, for presentation, it shall be deemed to have been fully presented and disallowed." No such provision seems to have been made in reference to claims against boards of education, and section 7 of chapter 45 of the Code provides that such board shall be a corporation, and as such may sue and be sued, plead and be impleaded. Under this general provision, any proper action for the enforcement of a claim against such corporation may be brought, and any proper...