Mingo v. Trustees Colored School Dist. A. of Garrard County. J. E. ROBINSON AND W. J. WILLIAMS, FOR APPELLANT. By their demurrers the appellees admit the truth of the allegations of the petition that the trustees of colored common school district A. made, in writing, a contract with appellant to teach the public school for the present year, that he was qualified to teach and offered to teach but was prevented by the trustees from doing so. We contend that the contract thus made in writing, signed by two of the trustees, binds the school district, and that the plaintiff's cause of action is against the school district and not the trustees individually. AUTHORITIES CITED. Sec. 4437, Kentucky Statutes; Johnson v. Trustees of Common School District No. 13, 18 R., 887; Stephenson v. School Directors, 87 Ill., 255; Am. & Eng. Ency. of Law (1st ed.) vol. 21, p. 754, note 2, p. 757, note 7, p. 758, note 1; (30 Mo. App., 113.) WM. HERNDON, R. H. TOMLINSON AND G. B. SWINEBROAD, FOR APPELLEES. The court did not err in sustaining a demurrer to plaintiff's petition and dismissing his action, because: 1. If he had any cause of action it was against the trustees individually, and not against the school district. 2. The allegations of his petition do not show that the writing signed by two of the trustees was such a writing as is required by the statute and does not bind the trustees nor the school district, there being no agreement in said writing as to the compensation that plaintiff was to receive. Hill & Burgin v. Harris, 4 Bush, 450; sec. 4445, Kentucky Statutes; Houngan v. Phillips, 7 R., 150; Civil Code, sec. 27; Ferguson v. True, &c., 3 Bush, 255; Tracy & Lloyd v. Hornbuckle, &c., 8 Bush, 336; Allen v. Russell, &c., 73 R., 116. OPINION OF THE COURT BY JUDGE PAYNTER-AFFIRMING. A demurrer to the petition as amended was sustained, and, the plaintiff (appellant) failing to plead further, the court dismissed the petition. It was substantially averred in the petition by the appellant that he and the trustees of colored common-school district No. A, on July 6, 1901, tered into a written contract by which he was employed to en Mingo v. Trustees Colored School Dist. A. of Garrard County. act as principal of the colored common school for the period of eight months, at the agreed compensation of 60 per cent. of the public money due the district; that at the time fixed for commencing the school appellant presented himself and offered to carry out his contract to conduct the school for the period stated that he held a first-class certificate and was qualified to discharge the duty which he contracted to perform that no charges were ever made against him; that, at the time fixed for commencing the school, the trustees of the district refused to allow him to conduct the school, but installed another principal thereof. It is urged: (1) That the school district is not liable for any damages that the appellant may have sustained for the alleged violation of the contract; that the trustees individually are responsible. (2) That the contract which is the basis of the suit is not enforceable under the common-school law; hence no action can be maintained thereon. We will consider the questions in the order stated. Section 4437, Kentucky Statutes, provides that trustees of common-school districts and their successors shall be a body politic and corporate, with perpetual succession, by the name of the trustees, for their school districts, and as such may sue and be sued. In such contracts as they are authorized to make they represent the district in its corporate capacity. When they employ a teacher they do not act as individuals, but for the district. If they violate their contract, the school district is responsible therefor. This court so held in Johnson v. Trustees 18 R., SSS (38 S. W., 861). The other question is a more serious one. Section 4445, Kentucky Statutes, reads as follows: "The trustees in their corporate capacity, at a meeting called for that purpose, shall employ a qualified teacher, agree with him as to com Mingo v. Trustees Colored School Dist. A. of Garrard County. pensation, and for good cause, of which he be first notified in writing, remove him, subject to the approval of the county superintendent. The contract between the teacher and trustees shall not be entered into before the first of July of the calendar year in which the school is to begin. . It shall expressly prescribe that its terms are subject to all the provisions of the common school laws, and shall be in writing, signed by the teacher and at least two of the trustees." The appellant made part of his petition the alleged written contract with the trustees. It reads as follows: "At a meeting called by the trustees of colored school district No. A, in Lancaster, Kentucky, for the purpose of electing teachers to conduct the school in the school year ending June 30, 1902, we, the trustees of said district, do hereby appoint and name J. H. Mingo principal, Miss Bernice Perkins and Miss W. B. Lackey assistants. They, being qualified teachers, will teach the school . . months for the public money. which will be apportioned among them according to an agreement yet to be made by them and the teachers." The statute requires that the trustee shall agree with the teacher as to compensation, and further provides that the contract shall be in writing, signed by the teacher and at least two of the trustees, and that "it shall expressly prescribe that its terms are subject to all the provisions of the common school laws.". It is evident that the Legislature intended that the district should only be bound when the contract is in writing; and, furthermore, that it should expressly provide that it is subject to the common-school laws. It will be observed from the language employed in the writing that the compensation which appellant was to receive was not agreed upon. It is true that it recites that the school was to be taught for the public money due the district, but that the amount which the appellant was to receive was to be Elliott, &c. v. Burke, &c. fixed by him, the other teachers in the school, and the trustees. There was a failure to agree upon appellant's compensation; that was left for future agreement. For this reason, we are of the opinion that there was no written contract in contemplation of the law, and no cause of action exists. The judgment is affirmed. CASE 63-ACTION BY ELLIOTT, &C. AGAINST BURKE, &C. FOR AN IN- Elliott, &c. v. Burke, &c. APPEAL FROM KENTON CIRCUIT COURT. JUDGMENT FOR BURKE, &C. AND ELLIOTT, &C. APPEAL. REVERSED. DE FACTO OFFICERS-VALIDITY OF ELECTION-ESTOPPEL TO QUESTION Held: 1. De facto officers in possession of an office and discharg- 2. A person, by consenting to or participating in a void election, 4. Where the statute requires a vote to be taken vive voce, an elec- 5. Where no valid election of members of the board of education of a cit the fourth class has been held at the time required by law, the members of the board in office at the time fixed for the election either continue in office until their successors are elected and qualified, or they have power to fill Elliott, &c. v. Burke, &c. the vacancies existing by reason of the failure to elect, and in either event persons appointed by the city council to fill the vacancies are not entitled to the offices. B. F. GRAZIANI, FOR APPELLANTS. The appellants constitute the de facto board of education of the city of Ludlow, a city of the fourth class, and did constitute said board all through the year, 1891, and as trustees, maintained a public school in said city, employing teachers, and was at the time of the bringing of this action. The 'appellees were candidates for trustees of said board, two from each of the four wards, and claimed to be elected, but were elected by ballot instead of vive voce, and undertook by this action to oust the de facto board, claiming in their petition that they were elected at the November election, 1901, by ballot, and that thereafter the city council elected them. The admitted facts are that the appellees were candidates, were elected by ballot, but finding that that election was void, or irregular, had the city council to elect them. The trial court upon hearing the case decided, basing its opinion upon the case of Cynthiana v. Board of Education, 21 R., 731, that the election was irregular, but not void, and declared in favor of the appellees. From that the appellants prayed an appeal, and the legal propositions now presented to this court is, First, was the election of appellees by ballot irregular or was it. void? We say it was void. Second, if only irregular the fact that appellees failed to qualify, then by section 3588, Kentucky Statutes, they were not entitled to the office because they failed to qualify. Third, Did the city council have any right to elect the members of the board of education? We say no. AUTHORITIES CITED. City of Cynthiana v. Board of Ed., 21 R., 731; Moss v. Riley, 43 S. W., R., 421; Kentucky Statutes, secs. 3588, 3485, 3606, and 3589; Chambers v. Adair, 23 R., 373; A. & E. Ency. of Law, vol. 5, pp. 96 and 106, vol. 19, same page, 394. FURBER & JACKSON, FOR APPELLEES. 1. The question involved in this appeal, is, whether or not the board of education was legally elected at the November election, 1901. The election as held was by secret ballot and admittedly a full, fair and complete expression of the will of the people. The questions raised are these: |