62 W. Va. 433 | W. Va. | 1907
In an action of unlawful entry and detainer in the circuit court, the defendant, besides the general issue, by plea put in issue the corporate existence of the plaintiff. In a trial before a jury, after the plaintiff had introduced all its evidence, the circuit court sustained the defendant’s motion to exclude such evidence and directed a verdict for defendant, which the jury returned accordingly. The subseL quent motion of the plaintiff to set aside the verdict and award a new trial did not prevail, and judgment was rendered dismissing the plaintiff’s summons. It does not distinctly appear from the record upon what particular ground this action of the court was founded.
The property sued for was a lot of 1 1-2 acres with a school house thereon, conveyed to the Board of Education of Salt Lick District by W. E. Morrison and L. J. Berry October 14, 1897, to which the plaintiff succeeded by virtue of its incorporation as the Board of Education of Elat-
The defendant offered no evidence except in connection with the cross-examination of the plaintiff’s witnesses. The material parts of the record of the chancery cause of the Merchants National Bank against J. W. Morrison and others were put in evidence, consisting of the summons, extracts from the bill, the deeds from Morrison and Berry to Pierce and Stump and from Haymond to Morrison and Berry, abstracts from the commissioners’ reports and of the decrees of sale and confirmation pronounced therein, and the notice of sale by the commissioners appointed to make sale of the lands decreed to be sold. This record shows that the defendant William II. Berry, on November 23, 1903, became the purchaser of the residue of the 54 acres conveyed to W. S. Stum]) by the said Morrison and Berry, and was awarded a writ of possession. The-final decree of confirmation was entered December 4, 1903. Neither his deed nor the writ of possession was put in evidence; but the deputy sheriff who executed the writ testifies that when he put Berry in possession thereunder in June or July, 1904, the Board of Education of Elatwoods District was in possession of the property.
The defendant makes no other claim of title, or right to possession of the property sued for, except by virtue of the judicial proceedings referred to. This suit of the Merchants National Bank was a suit instituted Eebruary 11, 1898, to enforce the liens of sundry judgment creditors of the plain
Was the plaintiff competent to sue? This is the important and only other question fairly arising upon tha record. The plaintiff was created into a corporation by the name of the “ Board of Education of Flatwoods District” by an act of the legislature, chapter 134 acts 1901, entitled “An Act to to establish the Independent School District of Flatwoods,” which became effective ninety days from passage. It provided that, in the event of the majority of the votes cast at an election to be held on the fourth Tuesday in May following should be in favor thereof, “ the town of Shaver-ville and Flatwoods and territory adjacent” (described by metes and bounds) should, after the result of the election should be ascertained and declared, constitute the “Independent School District of Flatwoods;” that the board of education, consisting of three members elected by the qualified voters resident therein, should bo a corporation, and 'should be vested with the same rights, exercise the same powers, perform the same duties and be governed by the same laws as boards of education elsewhere in the county, except in so far as changed by the provisions of the act, with power to sue and be sued, plead and be impleaded, contract, purchase, hold and grant estate real and personal, etc.; that the election to be held to determine whether said independent district should be established should be superintended and the result thereof ascertained and declared by election officers appointed by the county court, the election laws of the state to control the election so far as applicable. The act in question was offered in evidence in its entirety, although, being public law, it is one of which the courts of the state would take judicial notice. Bank v. Willis, 7 W. Va. 31; Hart v. Railroad Co., 6 W. Va. 336;
It is not denied that this was a valid act of the legislature, or that, subject to the condition upon which it was to become effective, it created into an independent school district the-territory therein described. But it is claimed that, on account of alleged irregularities in the election, this public corporation never took life; that the conditions of its existence were never fulfilled; that it was incompetent to sue, or to assume and hold possession of the property sued for; and hence that as a matter of law possession can not be said to have been unlawfully taken or withheld from it. The record shows that on March 6, 1901, the county court by an order entered directed that the special election provided for by the act should be held at two school houses within the .proposed district, one in Salt Lick District near Gold Spring, at which those resident in Salt Lick District should be entitled to vote .on the question; the other on the Rhea farm in Flatwoods, at which those resident in Holly District should be entitled to vote. The order also appointed officers to conduct the election, with power to ascertain and declare the result. By a subsequent order of July 9, 1901, it appearing that the election had been held and the result thereof ascertained as provided by law and the former order of the court and that said independent district had been legally established, the county court declared said Independent School District of Flatwoods established as provided in said act. Following this election, a board of education was elected as prescribed by the act, who entered upon the discharge of its ■ duties, made levies, established schools and employed teachers and continued to exercise the functions of a corporation up to the time of the institution of this suit. The act of tlie legislature does not show what part or parts of either of the magisterial districts in said county were covered by the territory described. The proceedings of the county court would indicate that only the districts of Salt Lick and Holly were affected, inasmuch as polling places for voters were established only in those districts. Oral evidence on the trial, however, tends to show that the territory included covered also a part of Otter Dis
So far as the record shows the state has not, nor has any other person ever before, questioned the corporate existence and capacity of the plaintiff. • The defendant relies strongly upon the provisions of section 10, article 12 of the constitution, which provides that “no independent school district or organization shall hereafter be created, except with the consent of the school district or districts out of which the same is to be created, expressed by a majority of the voters voting on the question.” It is claimed that this provision was disregarded, not by the act of the legislature, but by the county court and election officers; that the election should have been held in each of the districts affected, at each of the voting places established for general elections; and that the election held at the two voting places within the boundaries of the independent district was not a compliance with the constitutional jn-ovision and the election laws of the State. In our opinion, the provision of the constitution referred to and the general law do contemplate that the election in the several districts affected should be held at all the voting precincts established for general elections. But it is evident that the county court directing the •election in question, and the election officers, did not so construe the law.
Did the irregularity in the election invalidate the same, and render the effort to complete the incorporation abortive? As an original proposition, in any proceeding directly attacking the same we might be forced to hold the incorporation void; but this is not such a proceeding. Here the incorporation was collaterally attacked by a third person, in a suit to defeat the recovery of possession of public property in possession and control of the plaintiff; and we are not bound by the same rule as in direct proceedings to annul or take away corporate rights. The record convinces us that there was a bona jide effort to comply with the law to effectuate the incorporation, and the people affected thereby seem to have acquiesced therein, having-elected a board of education, which has exercised all the functions pertaining to the corporatien, so as to create a
These authorities, and the conclusion we have reached with respect to the title of the defendant, require us to reverse the judgment of the circuit court and award the plaintiff a hew trial.
Reversed.