98 Pa. 444 | Pa. | 1881
delivered the opinion of the court
The plaintiff in error, defendant below, complains, and we think justly, of the refusal of the court below to receive and submit to the jury the following offers of evidence: “ 1. To prove by Thomas O’Donnell, the witness on the .stand, and others, and by the records of the township elections, that Thomas T. O’Donnell, Thomas M. Maxwell, ITenry Roaclie, John M. Moran, Thomas M. O’Donnell and John ITart, were elected school directors of said school district, and by the minutes of said school board that Bryan McGinnis was duly appointed a school director of said district. To be followed by the evidence of Thomas O’Donnell and others, showing that said board, except as to Henry Roaehe, were the acting school directors of said district, from the date of their qualification to the 1st of June 1880.
“2. To prove by Thomas O’Donnell and other witnesses, and by the minutes of said board, that the old school board, composed of John Moran, Thomas M. O’Donnell, Thomas T. O’Donnell, Thomas Maxwell, Bryan McGinnis and John Hart, appointed in the place of J. IT. Leach, removed, employed the teacher for said school district, furnished the wood, repaired the school hoilse, and performed the other duties of school directors during the time that the board composed of Henry Roaclie, Thomas Burns, Patrick Roaehe' and others, claimed to be the acting school board.
For the purpose of this case we must take these offers as proved; this being so, we have established as facts: 1. That the persons named were the lawfully elected and constituted board of directors; 2. That they acted as such; and, 3. That the plaintiff was not only not employed by this board, but that she ' was notified not to attempt to teach under the authority of those other persons who assumed to be the board of directors.
In the face of such facts as these, it is too clear for argument, that the plaintiff had no case.
It is contended for the plaintiff that the Tüoache board was, at least, a de facto board, and, as to third persons, its acts would be good and not impeachable in a collateral case such as this This position would be sound, and the authorities cited to sup .port it would be in point, were it not that the hypothesis is, that there was at the same time, an acting de jure board ; but as there can be but one such board in a school district, there can be no legal presumption which will support the acts of another. If the assumption of the plaintiff be correct, then might there be any number of school boards, acting for a district whose contracts would, as to third persons, be good and binding, and their powers to involve the district in debt and confusion could only be determined by a judgment on a writ of quo warranto ; but it certainly requires no serious argument to prove the unsoundness of a doctrine such as this.
The position in fact is, that any half dozen men may, without warrant of law, assume the rights and duties of the legally constituted and acting board of directors, and make contracts by .which the district must be bound. This assumption, however, is so unreasonable that it cannot be’law. But’here are two de facto boards; the one has made a contract with the plaintiff,the other has notified her that it has repudiated that contract; that it is null and void for want of authority in those making it. How is a question of this kind to be determined without determining the legal right of the two boards ? And suppose, for instance, that each board had employed a different teacher to occupy the same school house. How then ? Could both contracts
The next question is, had Henry Roache, under the circumstances, the power to declare and fill vacancies ? We think he had no such power, and this principally for the reason that no vacancy had occurred at the time he undertook thus to act.
The board had been regularly adjourned from the 2d to the 15th of September, to meet at School House No. 1. At that time and place, none of the directors were present, except Henry Roache, who took it upon himself to adjourn the meeting until the succeeding Thursday evening, at which time, no other members of the board being present, and probably, for the very good reason that they had no notice of the time and place appointed for it, he again adjourned until the 23d inst. At this time, again finding himself the only one of the directors present, he declared' the seat of Thomas Maxwell vacant and appointed Lawrence L. Moran to till his place. Now the Act of May 8th 1854 thus provides : “ If any person, having taken on himself the duties of his office as director, shall neglect to attend any two regular meetings of the board in succession, unless detained by sickness or prevented by absence from the district, or to act in his official capacity when in attendance, the directors present shall have power to declare his seat in the board vacant, and to appoint another in his stead to serve until the next regular election.”
Now, admitting the power of a single director to adjourn meetings and to declare and supply vacancies upon proper occasions, yet, it is manifest, that neither he nor a majohty of the board, has any such power except under the conditions prer scribed by the act. It is only where a director has neglected to attend two successive regular, or as defined in Zulich v. Bowman, 6 Wr. 83, stated, meetings of the directors, that his seat can be declared vacant. It is true, that the Act of 1862 provides that if there are no standing regulations for periodical meetings, in that case “ every meeting held in succession, from the first meeting held for organization, by adjournment to a time and place certain, and so entered on the minutes,” shall be regarded as a regular meeting. But, unfortunately for the plaintiff’s case, it does not appear by the minutes that there was any adjournment of the meeting for organization, on the 2d of June, to the 2d of September. It follows, that as this meeting was not a regular meeting, within the meaning of the Act of 1862, neither, under the ruling in the case above cited, were the adjourned meetings of September 15th, 18th and 23d, regular meetings. As we are thus thrown back upon the Act of 1854,
On the hypothesis that the defendant’s offers are, or can be, proved, the plaintiff’s case cannot be sustained, and. in that event, the resolution of the 4th of May 1880, by which the plaintiff was employed, whether regular or irregular, is of no moment, but if these offers cannot be sustained, this resolution may be of importance, and must, therefore, be considered. After a good deal of hesitation we have come to the conclusion that, all other things being regular, the resolution would be.good and binding upon the district. The minutes show that at that meeting, four directors, Burns, McNulty and the two Poaches were pi’esent, and it further appears, by the same minutes, that the resolution passed unanimously; in other words, by the affirmative vote of every member present. This, according to the ruling in Tobin v. Morgan, 20 P. F. Smith 229, was a substantial compliance with the fourth section of the Act of April 11th 1862.
It is true that the meeting was called for a special purpose, aud that, regularly, no other business than that for which it was appointed ought to have been transacted, but as this irregularity could not, of itself, affect the power of the directors, the resolution would, nevertheless, be good.
The judgment is reversed, and a new venire ordered.
