Grady v. Pruit

111 Ky. 100 | Ky. Ct. App. | 1901

Opinion of the court by

JUDGE WHITE

Affirming.

Appellant brought this action again'st appellees Pruit, Young, and Riggs, seeking to recover of them $604, being the balance due appellant for the construction of a school house in Calhoun, Ky., white common-school district No. 12. His petition sets out in full the contract under which the house was built, and alleges full performance on his part, and the payment by appellees of $2,173, and a balance due of $604. The petition seeks to hold appellees personally liable. The court below1 sustained a demurrer to the petition, and, after amendment, sustained a demurrer to the petition as amended. Appellant then tendered an amended petition, which is made part of the record, but the court refused to permit it to b'e filed. The last amendment which was tendered,, but refused, attempts to state a cause of action against the school district by alleging that the contract was made for the district, and the school house built for the district, which was receiving the benefit thereof by having the schools taught therein; and .also alleged that the district trustees, appellees, had made an ' order levying a tax of one dollar poll, and twenty-five cents on the $100 ad valorem for four years beginning in April, 1898, and had collected only one year; the revenue for the year not being stated, nor is the number of polls nor taxable property given. Upon the refusal of the court to permit the second amendment to be filed', the .appellant failed to plead further, and his petition was dismissed; hence this appeal.

The theory of the original and first amendment is that the contract is the personal obligation of appellees. ! The court below held otherwise. In this conclusion we, are of opinion there was no error. The contract at the outset reads: “Articles of agreement made and entered into this 9th day of July, 1898, by and-between. J. N. Grady, of Owensboro, county of Daviess, State of Kentucky, as party of the first part, and J. B. Young, A. D. Riggs, and J. D. Pruit, board of trustees of white school district No. 12, McLean county, and State of Kentucky, as the parties of the second part.” This contract is that of the school district, and not that of thle three trustees. By section 4437, it is provided that the trustees “shall be a body politic and corporate, with perpetual succession by the name of the trustees for their common school district.” This contract was made in the corporate name. Further than this, it appears from the contract itself, as well ns from the petition herein, that appellant knew he was to build the house for the school district, and not for appellees individually. There is no pretense that it was ever contemplated that appellees would bind themselves personally to pay for the school building for the district. This case materially differs from the case of Burbank v. Posey’s Adm’r, 7 Bush, 372, Trask v. Roberts, 1 B. Mon., 201, and authorities there cited, as there the only intimation of a corporate capacity was in the signature, signed by a person styling himself as an officer of some company. In the 1 B. Mon. case, 201, the note was the joint and several obligation, as expressed on its face, which could not be true if it was that of a corporate body. It is clear that there was no expectation or intention to bind appellees individually for the payment, and there was, therefore, no error in sustaining the demurrer. In the amendment refused by the court it is stated that the trustees levied, or, rather, attempted! to levy, a tax for four years, to be used in building the school house. There is no allegation of a vote being taken to authorize such levy, and, if such was done without the assent of the voters of the district at an election held, it was void, at least as to three years. The petition alleges that one year’s taxes had already been collected, and this exhausted all power of the trustees to levy a tax without a vote. Com. v. Railway 105 Ky., 206 (20 R., 1127) (48 S. W., 1092). Appellant therefore had no right to have mandamus to compel the trustees to attempt an illegal act, — to collect a .void tax levy. Likewise appellant had no right to remove, the house, or any part thereof, or a sale to pay his debt. If it was necessary, to pay appellant’s debt, to levy a tax for four years, the debt was greater than the revenues for1 one year, and was void, under section 157 of the Constitution, without th'e vote, which is not alleged to have been had. The contract, being void under section 157 of the Constitution, could not be enforced directly or indirectly; nor could the district voluntarily assume or ratify same, and so could not be compelled to pay same. This is an extreme hardship on appellant, but it is a constitutional provision thlat can not be disregarded. There is mo allegation that the district had funds on hand from the taxes collected the one year. The real facts appear by the petition that he was paid $2,173 that year, and it would be presumed against him that that was all they had, as the contract pro • vides the balance, $600, should be paid in six months. However much we desire to give appellant relief, we can mot do so, having due regard1 to the law. There appears no error in the judgment, and the same is affirmed.