140 Ky. 531 | Ky. Ct. App. | 1910
Opinion op the Court by
Affirming.
There being a dead-lock in the board of education of the city of Covington, owing to which the board refused to constitute itself into'a quorum for business, six of the twelve member's brought a suit for mandamus against the other six, seeking 'to compel them to meet with the complainants so as to proceed with the official business before the board. Appellants, who are attorneys at law, were employed by the first-named six to bring the action. The result of that suit was the issuance of the writ as prayed for. The board -then organized and went ahead with its work. This suit was brought in the Kenton quarterly court by these appellants against the hoard of education, upon a demand for $200, counsel fees in'the first-named suit. The summons was served upon the president of the board, who was one of the six plaintiffs in the first-named action. He failed to bring the matter to the hoard’s attention, and there being no defense interposed, judgment went against the board by default. Learning of the matter later the hoard appointed two of its members a committee to investigate the claim “and to employ an attorney if necessary, and report back to the hoard.” The committee employed counsel, who upon investigation learned the foregoing facts, and advised that the hoard of education was not liable on the claim. But before «there would be another regular meeting of the board the time would elapse within which it could prosecute an appeal from the judgment rendered in the quarterly court. The committee directed an immediate appeal, which was taken. In the circuit court the plain
The board of education is a body corporate. It is an agency of government. Its capacity to contract is circumscribed. It can contract only in behalf of the common school interests of the city in any event. It was not competent for it to have contracted to pay the counsel fees incurred by its individual members in a matter wholly among themselves. If the case had been a contest between two of the litigants as to which was entitled to the office of member of the board, it would in a sense have involved a matter affecting the schools of the city. So does* the action in question. But it affects the school interests only as an incident. The action was personal as to its parties. Any citizen and patron of the school might as well have maintained it. But the test of the liability of the board of education on the contract is not whether the public body was benefitted by it. It is never allowed that the State, or any of its constituent arms of government, though expressly permitted to make
Judgment affirmed.