State Ex Rel. Deacon M. Jones v. KuHn
| Decision Date | 11 September 1923 |
| Docket Number | No. 4983.,4983. |
| Citation | 94 W.Va. 415 |
| Court | West Virginia Supreme Court |
| Parties | State ex rel. Deacon M. Jones v. Florence M. KuHn. |
Determine Meaning and Effect of Decree.
If any doubt arises as to the meaning and effect of a decree, the bill and other pleadings may be inspected in order to solve it. (p. 420).
form Public Duty, Stated.
Mandamus will not issue to compel the performance of a public duty by a public officer unless it is clearly shown that the relator has an indisputable right to enforce the performance demanded, and there is a corresponding duty on the part of the public officer to perform it. (p. 422).
Enjoined.
Mandamus will not issue where the effect thereof will compel the performance of an act which has been enjoined by a court of competent jurisdiction which has first obtained jurisdiction of the parties and subject matter, (p. 422).
School Apparatus Refused Where Injunction Pending Against Payment Thereof.
Where mandamus is sought to compel respondent, as county superintendent of free schools and ex officio county financial secretary, to countersign a draft or order for school apparatus, issued by a board of education, as provided in section 13, chapter 45, Code, 1918, and it is shown by the return and exhibits therewith that an injunction granted by a court of competent jurisdiction is in full force and effect at the instance of a tax payer in a suit to enjoin payment for the apparatus so purchased by the board, on the ground of illegality and fraud, and that relator and his principal (the assignor of the school draft in question) were parties to the suit and set up the issuance of the school draft in payment of the purchase; and that the financial secretary at the time of the issuance of the draft, and during his term of office, did not give his consent in writing or otherwise to the purchase of the apparatus in payment of which the draft was issued; and that the payee of the draft had instituted mandamus proceedings in another court to compel him to countersign it, which was resisted by him and is yet pending, having been stayed by an order of the court which states that the matter in controversy can be adjudicated in the injunction suit; a clear and indisputable legal right has not been shown to require respondent to countersign the draft, and the peremptory writ will be refused, (p. 422).
Action by the State on the relation of Deacon M. Jones against Florence M. Kuhn, to compel respondent, as County Superintendent of Free Schools of Kanawha county and exofficio county financial secretary, to countersign a warrant issued to'petitioner by the board of educatin.
Writ refused.
W. C. Reddy and M. F. Stiles, for petitioner. B. K. Littlepage, Frank C. Burdett and D. L. Salisbury, for respondent.
Relator, by his petition, seeks a peremptory writ of mandamus to compel respondent, Florence M. Kuhn, county superintendent of free schools of Kanawha county, and ex-officio county financial secretary, to countersign a warrant issued on the 7th day of April, 1917, by the board of education of Cabin Creek district of said county, on the sheriff of that county, for the sum of $1875.00, made payable to the order of R, 0. Evans and endorsed by him. Said school order is designated as Series C No. 671. The petition avers that the school order was for the purpose of paying R. 0. Evans for fifty copies of a practical agricultural series at $37.50 each for the use of the schools of that district, purchased by the board after mature consideration and judgment and upon the recommendation of the then county superintendent of free schools, as required by law; that the articles for which the school order was issued were duly received by the board but that the then county superintendent of free schools failed and refused to endorse the order during the entire term of his office; that his term of office expired on the first day of July, 1923, when respondent was inducted into office as his successor; and that she has likewise refused to countersign the said school order. It is averred that she has no just cause or reason for not countersigning the warrant and that unless the same is signed by her relator cannot receive payment of the draft and has no other remedy.
The return to the alternative writ avers that the legality of the school order is the subject of a chancery proceeding pending in the circuit court of Kanawha county in which an injunction has been awarded and is now in full force which in effect prohibits the collection or payment of the school draft in question, which suit was instituted by P. L. Brannen on the 24th day of May, 1917, in which George W. Jenkins, Jr., the former county superintendent of free schools, was impleaded; that relator was a party to said chancery suit and filed an answer therein. The pleadings and record of the injunction suit are exhibited with the return together with a certificate of the clerk of the circuit court that the cause is yet pending. The return also avers that on May 25, 1918, R. O. Evans, the payee of the school order in controversy, instituted, in the common pleas court of Kanawha county a proceeding in mandamus against George W. Jenkins, Jr., the then county financial secretary, for the purpose of requiring him to countersign and approve the said school draft; that Jenkins resisted the issuance of the mandamus; that by agreement and consent of counsel therein the mandamus proceeding was transferred to the circuit court where, upon the filing of the return of Jenkins (the financial secretary), and the inspection of the petition and return, the court, on the 15th day of September, 1922, found that the matters therein aris- ing could be properly adjudicated in said chancery cause of Brannen against the board of education of Cabin Creek district and others, therein pending, and by order duly entered as of that date, stayed further proceedings until the parties thereto could litigate the matters involved therein, in the said chancery cause; and that said mandamus proceeding is yet pending, awaiting the adjudication of all matters involved in the injunction suit instituted by Brannen. The orders entered by the court in the mandamus proceeding are exhibited with the return.
The return denies that the alleged purchase of the agricultural charts for which the order in controversy was issued, was recommended or approved by Jenkins, the then county superintendent, in writing, as required by section 13 of chapter 45 of the school law in force at that time, but on the contrary that the board, before the alleged purchase, was specifically notified by Jenkins that it could not purchase any apparatus without first having his approval in writing, and the return exhibits a copy of a letter from Jenkins to that effect, supported by Jenkins' affidavit. The affidavit of Jenkins is to the effect that on January 4, 1917, he wrote a letter to each member of the board and the president thereof and to the secretary, Hudnall, directing their attention to section 13 of chapter 45 of the then school law relating to the purchase of school apparatus and insisted that the provisions of that section regarding the written approval of the county superintendent should be fully complied with; that one of the members replied to the letter and advised him that if any such purchases should be made he would...
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