38 W. Va. 707 | W. Va. | 1894
Action by Casto against the board of education of Ripley district, Jackson county, for failure to allow Casto to teach a school under a contract employing him to do so. The facts are that Casto and Sharnblin and .Boggess, two-of the school trustees, were present at a meeting of the board of education; that the board appointed a trustee iu place of Boggess, but the appointee did not qualify that day; that Sliambliu and Boggess agreed before leaving tlie place where the boat'd of education was in session, to employ Casto to teach a school; that Fisher the third trustee, was not present, and had no notice of such meeting; that Casto and Sharnblin and Boggess went from the place where the board of education met to Shamblin’s house, where on July 15, 1889, Sharnblin signed a written agreement employing Casto as teacher; and then the -three started to go to Fisher’s house, and on the way Boggess remarked that it was not necessary for him to go to Fisher’s, as “two trustees were enough to employ a teacher,” and did not go further; that Casto and Sharnblin went on to Fisher’s, and then Fisher and Casto signed the agreement; that, a few days before tlio’time for the commencement of the school,
Is the written agreement employing Casto to teach binding on the board of education ? Its validity is to be tested by section 13, c. 45, of the 1887 edition of the Code, and not by that section as amended and re-enacted by chapter 60, Acts 1891, found in the 1891 edition of the Code. The act of 1891 made alterations in section 13. IIow, if at all, such alterations would affect the cpicstion we have in hand, it is not proper to say, but I deem it proper to call attention to the fact of amendment of the section.
The statute provided, at the date involved in this case, that the trustees should appoint teachers by written appointment, to be submitted to the board of education, or its president when the board was not in session, for approval. After so giving power to the trustees to appoint, it contained this explicit clause: “But the trustees shall take no action or proceeding relating to the appointment or removal of teachers, or expulsion or suspension of a scholar from school, unless at a meeting of which all the trustees shall have had notice, and when at least two of their number shall be present and concur in such action or proceeding.”
It is plain that the important act of appointing teachers under this act must be It a public meeting of which
In this case there was surely no meeting, within the moaning of the statute, as construed by said decision. Where was the meeting? At the place where the board of education met? Of this Fisher had no notice. It was in no sense a meeting. Shamblin and Boggess happened there because the board was meeting. Two trustees must concur in the appointment. The two trustees present at that meeting, it is said, concurred in the appointment. They did not legally do so ; for while Shamblin, before leaving that place, did sign the agreement, Boggess did not. Why did ho not do so if he finally agreed to the appointment? The fact that he did not there sign, and the fact that, though he started to go to Eisher’s, he excused himself and did not go all the way, tend to show non-concurrence. The fact that he remarked that it was not necessary for him to go, as two trustees were enough to appoint, shows that he did not intend to be considered as acting in the appointment. At any rate, he did not sign the agreement, nor any written appointment. The statute, in term's, requires a written appointment; not an agreement to appoint, but an actual appointment, as a final act, evidenced by writing.
If, under an oral appointment, a teacher could recover for actual service in teaching, it thence does not follow that where he has not taught, so as to maintain a quantum mer-uit for service, he can enforce an oral appointment by re
Another point in the case is this : During the taking of evidence, after the plaintiff had given in evidence said agreement and the facts above stated and some others, the court asked the plaintiff’s counsel if he could produce evidence different from that which he had already given as to the manner of employing the plaintiff'; and, the counsel replying that he could not, the court said it was unnecessary to go further with the evidence on other points, as the court’s view was that the plaintiff had been illegally employed; and this is alleged to be error.
From the statement of the facts proven on the trial, we feel sure that the whole cáse of the plaintiff had been presented, so far at least, as it touched the manner of the appointment of plaintiff as a teacher; and the plaintiff took no exception, and made no objection, to this particular action of the court, but only to its finding upon the facts.
We think with the Circuit Judge that the invalidity of the appointment decides the case against the plaintiff. We are of opinion, therefore, that the finding and judgment of the Circuit Court for the defendant ought to be affirmed.