194 Mo. App. 194 | Mo. Ct. App. | 1916
This action was originally against H. I. Ruth and the other defendants above’ named (except Effie M. Ruth). After the appeal was taken he died and the action was revived against the executrix, said Effie M. Ruth, his widow. The original defendants constituted the board of directors of School District Number thirty-seven of Poplar Bluff, as it is alleged in the petition upon which plaintiff seeks to recover of them the value of certain material sold by it to insolvent contractors with said district. The liability is based on the theory that since they failed to
Poplar Bluff being a city of the third class the school district of which defendants were directors is what is known as a “city school district.” (Section 10775, R. S 1909) and consequently a body corporate. [Section 10864, R. S. 1909.]
It is clear that since materialmen and laborers have no lien for their material furnished or work done for one contracting .with a school district, or other similar corporation, the section of the statute which we have just quoted was intended to be a protection to the classes which would otherwise be protected by our mechanics’ lien law. [Jackson County ex rel. v. Freeborn Engineering & Construction Co., 174 Mo. App. 28, 35, 160 S. W. 274.] But the question we must decide is whether or not there is any liability on the part of the directors of a school district to a materialman who has furnished supplies to a contractor, relying upon the belief that a bond has been taken as required by said section, the directors having made no effort to have such bond given.
The St. Louis Court of Appeals in the case of Hydraulic Press Brick Co. v. School District of Kirkwood, 79 Mo. App. 665, held directors were not individually liable for failure to take a bond as required by the then existing statute, which is virtually the same as it now stands except that when it provided that the “school district” should require a bond of the contractor. It was there observed that the statute did not point out “the directors of school districts as the persons or collection of persons who shall require the contractor to give the bond,” and upon that phase of the law the decision turned and is distinguishable from the case at bar. The Kansas City Court of Appeals refers to this feature of the statute in State ex rel. Curfman Bros. v. Miller, 123 Mo. App. 730, 733, 101 S. W. 616. In 1909 (Laws 1909, page 382; R. S. 1909, section 1247) the section was changed to read as now, except by the amendment of 1911 the board is to fix the amount of the bond. So far as we are advised the question before us has not been squarely decided by any appellate court in this State.
It seems that in Michigan a law somewhat similar to ours is in the statutes. In the case of Owen v. Hill, 67 Mich. 43, 34 N. W. 649, there appears an opinion in which it is stated that fixing the amount of the bond and determining the solvency of the sureties involve' in a limited measure the exercise of judicial functions, but it is said these functions are not so connected with the ministerial duty of requiring the bonds as to be
The opinion in Rhea County v. Sneed, 105 Tenn. 581, 56 S. W. 1063, holds that a county commissioner is liable for failure to take bond, but no quotation is made from the statute, so we cannot compare it with ours.
In Minnesota the failure to require bond is by statute made an offense for which recovery is therein provided. [Wilcox Lumber Co. v. School District, 106 Minn. 208, 118 N. W. 794.]
The syllabus to the case of Minnier v. Godbold, 116 La.-,40 So. 604, 5 L. R. A. (N. S.) 463, is as follows: “A public officer who is a member of a corporate body upon which a duty rests cannot be held liable for the neglect of duty of that body. If there be a refusal to exercise the power of such body, it is the refusal of the body, and not of the individuals composing it. The official action of its different members is merged into the official action of the board itself as an entirety.”' The Hydraulic Press Brick Co. case, supra, is cited with approval and it will be observed that the same proposition is involved in the two cases.
The statute under consideration unquestionably and absolutely imposes on school directors the duty of requiring a bond. The change in the law after the decision of the St. Louis and Kansas City Courts of Appeal was likely prompted hy the holdings of those
Making an application of the statute under con-, sideration to the facts involved we must hold that it is the imperative duty of all officials or agents of school districts to require the bond. It is conceded, by reason of the demurrer and for the purposes of our decision, this was not done, and that these defendants were derelict in that regard. We must also assume that if the bond had been required only solvent sureties would have
The judgment is reversed and the cause remanded.