42 W. Va. 170 | W. Va. | 1896
On an appeal from a decree of the Circuit Court of Putnam county, pronounced on the 28th day of February, 1894, perpetually enjoining the Caxton Company from collecting and the school board from paying a debt for seven hundred and fifty dollors which the board contracted in the purchase of school charts. The bill of injunction is based on three distinct grounds:
1. That the members of the board of education, in making this pimchase in the year 1893, incurred the debt of seven hundred and fifty dollars to be paid one half out of the school money of the subsequent year; and that this was done in violation of section 45 of chapter 45 of the Code. The plain and commendable purpose of this provision of the statute is to make the available funds of each year pay the demands of that year, and protect the taxpayer from indebtedness beyond what each year’s means will pay. Davis v. Board, 38 W. Va. 382, 385 (18 S. E. 588). And a court of equity has jurisdiction of a suit by and on behalf of the resident taxpayers of a school district brought to set aside and hold for naught a contract made by the board of ed ueation, so far as the same creates and incurs a debt to be paid out of the school money of subsequent years, there being no other plain, adequate, and complete remedy. Shinn v. Board, 39 W. Va. 497 (20 S. E. 604). This could hardly have been the ground on which the circuit court based its decree, for the written contract for the purchase of the charts as amended and finally executed was entered into on the 15th day of
Ground No. 2 is that the school law (chapter 45 of the Code) does not confer upon the board of education the power to buy such things; that they do not come within the meaning of the term “appliances,” as used in the statute. The board of education of a school district is a corporation created by statute (section 7 of chapter 45) with functions of a public nature, expressly given, and no other; and it can exercise no power not expressly conferred or fairly arising from necessary implication; and in no other mode than that prescribed or authorized by the statute. Shinn v. Board, 89 W. Va. 498 (20 S. E. 604). It is a public corporation, created for public educational purposes (1 Thomp. Corp. § 25) laying throughout the United States annual levies of more than one hundred and sixty million dollars. All who deal with the board of education are charged with notice of the scope of their authority, and that they can bind their district only to the extent and by such contracts as are authorized by law. See School Tp. v. Barnes, 119 Ind. 213 (21 N. E. 747). And the members of the board, acting individually and separately, and not as a board convened for the transaction of business, can not make a contract that will bind them as a corporation. Pennsylvania L. R. Co. v. Board of Education, 20 W. Va. 360. The evidence shows that this contract of sale as first made was in plain violation of this important rule of law, but was after-wards called in, and the present'one was put in its place. Whether the law confers upon the board the power to make such purchase depends upon the scope and meaning of section 34 of chapter 45, read in connection with other sections and clauses bearing on the same subject. It reads as follows: “The board of education of every district shall provide by purchase, condemnation, leasing, building or
There is a distinct charge in the bill that the agent of the Caxton Company succeeded in palming off these charts on the board by false and fraudulent representations, and at a
The third and the last charge in the bill of injunction is that the Caxton Company, by and through its agents and salesmen, offered to the board of education and to the individual members thereof, money and other things of value, and used various other undue, illegal, and fraudulent inducements, with the view and for the express purpose of securing an order and contract for the purchase of the Caxton School Series illegally and for an exorbitant price, to the great detriment of the plaintiffs and all other taxpayers of the school district. Bribery is defined “as the voluntary giving or receiving of anything of value in corrupt payment for an official act done or to be done.” 2 Bish. New Cr. Law, § 85. See Dishon v. Smith, 10 Iowa, 221; State v. Ellis, 33 N. J. Law, 103. The payment or offer of a valuable consideration to a public officer to influence him in the discharge of a legal duty constitutes the offense. See 2 Am. & Eng. Enc. Law, 532; And. Law Dict. p. 136. See, on the subject, section 4 et seq. of chapter 147 of the Code, and section 13 of chapter 45; Com. v. Callaghan, 2 Va. Cas. 460. A promise to pay for loss of time is bribery. Simpson v.
This contract was void because made by only two of the board, one of whom had rendered himself incompetent to act by accepting pay from the party contracted with for attending the meeting at which the contract was made. Without his vote in favor of it, it would not have been made, hence so far from having the sanction of two of the board, the number required by the statute to constitute a quornm, it had under the law the sanction of but one, and therefore had only the semblance of a contract. Besides, it is a plain case of money demanded, given (and received) with intent to influence the commissioner in the discharge of the legal duty of attending the meeting and passing on the question of the acceptance of the proposed contract. I should be reluctant to believe that his signing the contract was also thus induced. The first is enough to require the contract to be held void, and that much is established by the concurrent testimony of both parties to the transaction.
But it is proper to add that there is nothing in this record tending in the slightest degree to bring home to the principal in this contract knowledge or sanction of this conduct on the part of their agent; but, notwithstanding their innocence, when they come into court, and insist upon its validity and enforcement, they are met with the maxim upon which the law of agency rests, “What one dofes through another, that he does himself,” so far as the illegality of the contract itself is involved. The doctrin e of ultra vires, in that attitude of the transaction, does not apply. See 1 Am. & Eng. Enc. Law (2d Ed.) 1180. Although the principal may have had nothing to do with this tampering of their agent with a member of the school board in order to influence him in the discharge of his official duty, may not have been privy to the transaction in any way, yet the company sent him out to sell and contract in their name and for their ben
In our view of the facts of this case and of the law applicable thereto, the decree complained of is right, and must be affirmed.