Barrow v. School Dist. No. 8

162 P. 789 | Or. | 1917

Mr. Justice Burnett

delivered the opinion of the court.

The reading of the record throughout reveals much rancor between the parties concerned in this proceeding, to the extent, even, that the “lie direct,” instead of the “retort courteous,” appears in some instances. It is not necessary to pursue the controversy into all its details.

1, 2. The complaint being in the condition stated and the proposition adopted by the legal voters being admitted, as above set out, the defendant at the close of all the testimony moved the court to instruct the jury to render a verdict for the defendant. One reason advanced for this direction was that it is not averred in the complaint that the claim for the money alleged to be due on the contract set up in the complaint was ever presented to the board of directors for allowance or rejection.

The duties of district school boards are prescribed by Laws of 1913, page 299, in part as follows:

“To audit all claims against the district, and to authorize the clerk to draw orders for the amount. * * All demands, whether by contract or otherwise must be approved by the district school board when in session before an order can be drawn on the district clerk for them and no officer can draw an order on the treasurer unless he is authorized to do so by a vote of the board at a regular or special meeting. It shall be the duty of the board to examine all contracts for the employment of teachers and the construction of school houses, or for any other purpose, and see that the stipulations have been complied with before they authorize the payment of money thereon.”

In Stackpole v. School District No. 5, 9 Or. 508, it was held that a complaint was amenable to a general demurrer when it did not allege that before the commencement of an action thereon the same had been presented to the board of directors for their audit and that the same had been rejected. The doctrine of this case was distinguished in Sheridan v. City of Salem, 14 Or. 328 (12 Pac. 925), but only so far as to make it inapplicable to a claim for damages resulting from a tort of the municipality. It was approved there so far as it relates to a claim upon a contract: See, also: Philomath v. Ingle, 41 Or. 289 (68 Pac. 803); Richardson v. City of Salem, 51 Or. 125 (94 Pac. 34). The only language of the complaint which might indicate a presentation of the claim is this: “This defendant after a demand therefor now refuses to pay the same.” This is not an allegation of presentation for audit. It is not even stated of whom the demand was made. For this reason alone, the verdict ought to have been directed for the defendant, and this all the more because the general demurrer raised the same question.

3. Besides all this the plaintiffs are here demanding a money judgment when all they were entitled to in any event under the proposition adopted by the school meeting was an interest-bearing time warrant. "We are mindful that under Section 361, L. O. L., where judgment is given for the recovery of money" against a school district the same is satisfied by an order on the treasurer for the amount of the judgment in favor of the party for whom the same was given. The warrant there contemplated is the ordinary demand warrant and not the time warrant mentioned in the order passed by the school meeting. On the showing made the plaintiffs are not entitled to the ordinary money judgment.

The following excerpts respecting the duties of the directors are here set down, taken from Section 1 of the act of February 25,1913, subdivisions 5 and 6:

Subd. 5. “If authorized by a majority vote of the legal voters present at any legally called school meeting they shall purchase, lease or build school houses, buy or lease land for school purposes, furnish school houses with furniture, lights, and apparatus, and for such purposes may, when so authorized, levy not oftener than once a year, a tax not exceeding five per cent of the value of the taxable property of the district, or issue or sell negotiable bonds as hereinafter in this act provided. # * ’ ’

/Subd. 6. “When authorized by a majority vote of the legal voters present at any legally called school meeting, they may, in the name and on behalf of their district, contract a debt by borrowing money, or otherwise, not to exceed five per centum of the value of the taxable property of the district, for the purpose of building a school building or repair of school buildings, or for the purchase of land for school purposes, ancl issue negotiable interest-bearing warrants (and fix the time of payment of the same) of their district, evidencing such debt; * * Provided, that whenever a school district in this state shall make a loan, borrow money, or refund any existing debt created by a vote of the electors or by the directors in pursuance of any statute, the bona fide resident citizens of such district shall have the right to subscribe for such loan, and it shall be the duty of the board of directors to order an advertisement to be published, setting forth the amount of such loan, the number of years the same shall run, and the rate of interest, in a newspaper published in the district, or by posting notices in three public places, and each bona fide resident of such district shall have the right to subscribe once for said loan for the entire amount or any portion of the same not less than $50 at par value, and in placing the loan the directors shall issue the same, whether it be notes, warrants, or bonds of the school district, to the smallest subscriber or subscribers first, one note, warrant, or bond to each such subscriber, upon payment of the amount subscribed in lawful money of the United States, until the entire loan has been placed. * * ” Laws 1913, p. 299.

The authority conferred upon the directors by the school meeting was to issue negotiable interest-bearing warrants of the said district in the sum of six thousand dollars, to pay for the said property aboye described. The statute under which the district operated is part of the contract by operation of law and all the plaintiffs can acquire is a warrant of the form and terms prescribed by the school meeting. Under these circumstances, the verdict should have been directed for the defendant. The conclusion is that the judgment of the Circuit Court must be reversed with directions to enter judgment for defendant.

Beversed With Directions.

Mr. Chief Justice McBride, Mr. Justice Benson and Mr. Justice Harris concur.