Johnson v. Sanders

115 S.W. 772, 131 Ky. 537, 1909 Ky. LEXIS 54

Opinion

Opinion op the Court by

Judge Settle

Reversing.

By this action instituted against appellee in the court below, appellant sought to retain, as a teacher, possession of the sehoolhouse in, common school district 113, Pike county, and to teach the common school therein, which she . claimed to have been legally employed to do by a written contract made with the trustees of the district before beginning the school. It was alleged in the petition that although appellant had been in possession of the sehoolhouse and conducting -the school for a month under employment of the trustees, two of whom had signed tin? contract by which she had secured the right to teach it, the appellee wrongfully and forcibly attempted to obtain possession of the sehoolhouse- and to oust her therefrom and deprive her of the right to teach the school, under a claim of having himself been employed by two of the trustees to teach it. At the time of filing the petition appellant obtained a temporary restraining order to prevent appellee from interferring with her possession of the sehoolhouse and depriving her of th'e school. The appellee’s answer contained a traverse of such of the averments of the petition as set forth appellant’s- employment and right to teach the school and charged him with the use of force in trying to get possession of the sehoolhouse. and alleged : That the contract under which she claimed to have been employed to teach' the school was void; that one of the two- alleged' trustees of the district whose name appeared to the contract was .without authority to enter into the same and was at the time illegally acting as a trustee and disqualified under the law to be or act as such, because he was then and at the time of his appointment as trustee holding the office as postmaster in Pike county by appointment of the Postmaster General of the United States; and that the office of postmaster and that of trustee of the common school district in question are incompatible. It was also averred in the answer that, after the alleged employment of appellant to teach the district common school, Ml D. La Greer resigned as trustee, and his son, D. C. Greer, wa's appointed trustee in His place, and, further, that appellee had- been legally employed by two of the trustees of the district to teach the common school therein, the contract evidencing the same having been reduced to writing and signed by two of the trustees, L. C. Greer and J. M. Sanders, and that by virtue thereof he was entitled to teach the school and to have the possession of the schoo'lhouse for that purpose. The temporary restraining order was dismissed by the circuit court, and shortly thereafter, the case coming on to be heard on the merits, judgment was rendered by the court declaring appellee entitled to. teach the school in question and dismissing appellant’s question. Of that judgment, the latter complains. Hence this appeal.

The record' contains an agreed statement of the facts out of which the controversy arose, which are few and simple. Appellant was employed by the trustees to teach the school. Two' of the then acting trustees of the district, M. D. E. Greer and U. M. Johnson, signed the contract, but the third trustee, J. M. Sanders, did not do so: Appellant was put in possession of the schoolhouse and in charge of the school, which she began at the time fixed by her contract with the trustees, and taught for a month, and until interfered with by the appellee. There was no complaint of her manner of conducting the school, and it- is conceded that she held such a teacher’s certificate as entitled her to conduct it. The agreed facts further show that appellee attempted to get possession of the schoolhouse and claimed the right to deprive appellant of the school and conduct it himself, upon the ground that her employment as teacher was unauthorized and void, because of .the ineligibility of M. D. L. Greer, one of the trustees by whom she was employed, to hold the office of trustee, and because he (appellee) had been employed to teach the school by two of the trustees of the district, J. Ml. Sanders and L. C. Greer; the latter being the successor of M. D. L. Greer. It also appears from the agreed facts: That M. D. L. Greer was appointed a trustee by the county superintendent of the school district in January, 1907; that he accepted the office and qualified as- trustee by immediately taking the necessary oath and causing his name to be entered* as such upon the record book required by law to be kept by the superintendent for that purpose; that he at once assumed the duties of the office of trustee and continued to act in that capacity until his- resignation of the office July 11, 1908, which was a month after the employment of appellant as teach’ei and after she had taught the school that length of time. Furthermore, in November, 1907, M. D. L. Greer was- by the board of trustees elected its chairman and acted in that capacity from that time down to the date of his resignation; and during his holding of the office of trustee the board, composed of his two associates in office and himself, actively undertook and discharged the duties imposed upon them by law, and M. D. L. Greer’s acts in the capacity of trustee and as chairman of the board were approved and acquiesced in by the county superintendent, the other two trustees of the district, and the public generally, without any idea or even suspicion that his holding the office of postmaster at the same time disqualified him to act as a trustee of the common school district. Indeed, he was himself unaware at that time of his inability to hold both offices.

It must be admitted that the offices were incompatible, for the law mates them so, and the courts have held' that both can not be held at the same time by one person; but, notwithstanding that fact, M. D. L. Greer was during the entire time of his exercise of the duties of the office of school trustee a de facto officer. Manifestly, he was not a usurper,- for he did not intrude upon the office and without color of right assume to exercise its functions. On the contrary, he was appointed to it by the county superintendent of schools, a superior officer of the same government, who had the authority to fill the vacancy that then* existed in the office by appointment, though without power to appoint an ineligible person; but, having done so, by the long-continued performance by the appointee, of the duties of the office, with the approval of the superintendent, the other trustees, and the acquiescence of the public, he became a de facto trustee. In M-echem on Public Officers, section 321, it is said: “Contra-distinguished from the officer de facto, is the mere usurper, or intruder, who is one who has intruded upon the office and assumed to. exercise its functions without either the lawful title or the color of right to it. His acts therefore are entirely void. He may, however, as- is stated in the last section, grow into an officer de facto, if his assumption of the office is acquiesced in.” We are further told by the same learned author, in section 324: “Where the law has provided that the office may legally be filled, then the •acts of an incumbent may be valid, although not legally appointed, because the public, being bound to know the law, know that someboUy may or should fill the place and perform the duties; and1 possession would, as to them, be evidence of title. But where the law itself negatives the idea that there can he a legal incumbent, any one assuming to aet assumes what every one is hound to know is not a legal office, and his acts can not be effectual for any purpose.” Mechera on Public Officers, section 324; Eubank v. Commonwealth, 103 S. W. 368, 31 Ky. Law Rep. 746; Wilson v. Tye, 102 S. W. 856, 31 Ky. Law Rep. 491. Numerous other authorities, in addition to those cite'd, can be found which hold that while the act of an officer de facto whefie it is for his own benefit is void, because he shall not take advantage of his own want of title which he must be cognizant of, hut where it is for the benefit of strangers- or the public, who are presumed to he ignorant of such defect of title, it is good. Rodman v. Harcourt, 4 B. Mon. 224; Stokes v. Kirkpatrick, 1 Metc. —; Rice v. Commonwealth, 3 Bush 14; Chambers v. Adfair, 110 Ky. 942, 62 S. W. 1128, 23 Ky. Law Rep. 373.

Testing the acts of M. D. L. Greer, while assuming to perform- the duties of a- school trustee, by the doctrine announced by the authorities, supra-, we must conclude that he was a de facto trustee a.t the time of the .employment of appellant to teach the school in question, and as the written contract evidencing her employment was in due form and agreed to and signed by M. D. L. Greer and U. M. Johnson, the first a de facto and the second a de jure trustee, and the two constituted a majority of the hoard of trustees of the school district, it was binding upon the board of trustees and the district as well. Therefore appellant was entitled to the possession of the schoolhouse and to teach the school during the term covered by her employment.

Wherefore the judgment is reversed, and cause remanded, with direction to the lower court to set aside the judgment appealed from, and in lieu thereof enter another giving appellant possession of the* schoolhouse and adjudging her entitled to teach'the common school in district 113, Pike county, for and during the term for which she was employed under her contract with Greer and Johnson, and enjoining appellee from interfering with her right to do so-.