Bennett v. District Township

6 N.W. 36, 53 Iowa 687

• Court: Supreme Court of Iowa
• Decided: June 11, 1880
• Status: Published

Opinion

Adams, Ch. J.

1 SCHOOLS ■* suMúector: qualification of-The evidence is undisputed that one Michael O’Brien was elected subdirector of the subdistrict. No ques-was -raised by any -person on this point. The v v s. a. plaintiff’s theory, as we understand it, is that r J 7 7 O’Brien’s office was deemed vacant, and that Wood was qualified in his place. Section 1752 of the Code provides that “ Each subdirector shall, on or before the third Monday in March following his election, apj>ear before some officer qualified to administer oaths, and take an oath to support the constitution of the United States, and that of the State of Iowa, and that he will faithfully discharge the duties of his office; and in case of failure to qualify his office shall be deemed vacant.”

At the meeting held on the third Monday of March following O’Brien’s- election he failed to apjiear. The record made by the secretary is in these words: “Michael O’Brien was elected in subdistrict No. 2, but failed to qualify, not being present at the meeting, and Robert Wood, the present incumbent, was sworn in to continue in office as subdirector of sub-district No. 2, for the ensuing year, by Stephen Eaton.”

In addition to this the jury found specially that O’Brien did not qualify. The defendant questions the correctness of this record and finding. In our opinion the defendant’s position must be sustained.

It is true O’Brien was not present at the meeting on the third Monday of March, but the statute provides that he may appear on or before that day, before some officer qualified to administer oaths, and take the oath of office. The undisputed evidence is that on the Saturday previous to the third Monday of March O’Brien appeared before a person qualified to administer oaths and took the oath of office. He failed to appear at the meeting because he was prevented by sickness. The secretary seems to have conceived the idea that O’Brien could qualify only by being present at the meeting, and wc doubt not the finding of the jury was based upon that idea, but such idea is manifestly incorrect.

It might be thought that some written evidence of O’Brien’s qualification should have been filed by him with the secretary but we find no provision for such evidence. Ordinarily wo presume there would be no difficulty in determining whether a subdirector had qualified or not. There was no difficulty in. this case. O’Brien had taken the oath before a member of the board who was present at 'the meeting, and gave full information as to that fact.

2. —: —r; teacher. The plaintiff claims, however, that Wood was at least a subdirector defacto. But we see.nothing to justify such a theory. The evidence shows not only that O’Brien had been elected, and qualified at the time of the alleged contract, and that the plaintiff knew it, but that he had entered upon the discharge of the duties of his office. We cannot uphold the contract as made with an officer de facto, if O’Brien, the subdirector by right, was subdirector defacto, or if the circumstances known to the plaintiff were such as to preclude her, as a reasonable person, from believing that Wood was subdirector by right. McCahan v. Commissioners, 8 Kansas, 437; State v. Carroll, 38 Conn., 449; Burk v. Elliot, 4 Iredell, 355.

An instruction was given upon the theory that the contract might be sustained, although invalid in its inception, if subsequently approved by the board. But we find no evidence of such approval. The most we find is an approval by one Kelley as a subdirector.

In our opinion the verdict is without support in the evidence, and the judgment must be -n

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