Shepherd v. Gambill

• Decision Date: 16 June 1903
• Citation: 75 S.W. 223
• Parties: SHEPHERD et al. v. GAMBILL et al.
• Court: Kentucky Court of Appeals

75 S.W. 223

SHEPHERD et al. v. GAMBILL et al.

Court of Appeals of Kentucky.

June 16, 1903

Appeal from Circuit Court, Breathitt County.

"Not to be officially reported."

Suit by Charles Gambill and others against Green Shepherd and another. Judgment for plaintiffs. Defendant Shepherd appeals. Reversed.

J. J C. Bach, Jno. E. Patrick, and Kelley Kash, for appellant.

Pollard & Redwine and G. W. Fleenor, for appellees.

O'REAR J.

This litigation presents a deplorable state of affairs affecting the well-being of Common School District No. 13 in Breathitt county. The suit is brought by appellee Charles Gambill, who claims to have been employed by the trustees of the district to teach its school for the year ending June 30, 1903 against the appellant, Green Shepherd, who claimed to have been also employed by the trustees to teach the school for the same year. The superintendent of schools for the county was joined as a defendant, and an injunction sought and obtained against appellant Shepherd's continuing to teach the school, and against the superintendent's paying him any of the public fund appropriated to pay the teacher in that district. Appellee was employed by Asberry Spicer, who is conceded to be a trustee, and Lewis Turner, who claimed to be a trustee, while appellant was employed by Sam Callahan also conceded to be a trustee, and Sam Spicer, who likewise claimed to be a trustee. Thus the right of the case is attempted to be made to turn upon, as well as to decide which one of the two, Lewis Turner or Sam Spicer, was the legal incumbent of the office on July 1, 1902, when appellee's contract was made.

It is admitted that Lewis Turner had been elected trustee in 1898, for the three-year term ending June 30, 1902. The records of the superintendent's office appear to be in some confusion. The former superintendent, whose term expired January 5, 1902, attempted on January 2, 1902, to appoint Lewis Turner to fill the vacancy in his office which would occur on July 1, 1902, because the regular election had not been held in October previous, as required by statute. After the induction of the present superintendent into the office, Turner applied to him to have the oath of office administered. The superintendent, under a mistake as to the facts, administered the oath. On July 1st he learned that Turner's term really expired at midnight on June 30th, the day before, and thereupon appointed Sam Spicer to fill the vacancy in the office. Spicer did not qualify, however, till the next day. About 6 o'clock in the morning on July 1, 1902 (the first day of the school year under the statute when a valid contract can be made with a person as teacher), Asberry Spicer and Lewis Turner met at the schoolhouse, and sent word to Callahan to join them, to make a contract to employ the teacher for the year. Callahan failed to attend, and the other two and appellee signed the contract. A few days later Sam Spicer and Callahan, after having given notice to Asberry Spicer, the other trustee, met and employed appellant to teach the school. In the meantime, after the reputed employment of appellee, the schoolhouse was burned at night, said to be the work of an incendiary. It is claimed by appellee that his contract was binding upon the district because Lewis Turner's reappointment January 2, 1902, and his subsequent qualification, continued him in office for the full term after July 1, 1902, or in any event that he, under the statute, continued to hold his office "until his successor was elected or appointed, and qualified," and that, as he did not qualify until July 2d, Turner's incumbency of the office was legal, and his official acts binding upon the board of trustees and the public.

This suit was begun August 4, and the injunction procured from the circuit judge...