147 Ky. 720 | Ky. Ct. App. | 1912
Opinion of the Court by
Affirming.
The appellant corporation is a manufacturer of and dealer in musical instruments, doing business in Louisville.
In September, 1909, the Louisville School Board adopted a resolution appropriating $2,500 for the purchase of pianos for use in the public schools. The resolution making the appropriation provided for the appointment of a committee consisting of members of the board ..to visit various dealers in the city and secure propositions for pianos that the board proposed to buy. In accordance with this resolution, the committee visited the- store of the appellant company, and as a result thereof on February 23, 1910, it submitted to the School Board the following proposition:
“We very respectfully inform you of a recent visit to our ware rooms made by the committee appointed to purchase pianos for various schools. * * # As we understand it, .the resolution passed by the School Board calls for fifteen pianos, for which you are authorized to pay $2,500. In accordance with this, we beg to submit the following proposition: For the sum of $2,500 we agree to furnish the Louisville School Board with fifteen Montenegro-Biehm pianos, in either mahogany, oak or walnut cases, the same to contain ivory keys and tó be equipped with the Seaverns actions.- We agree to hold ourselves responsible for any defects in workmanship, materials or performance which may develop within the next fifteen years.; We further agree to keep them in tune for a period of one year free of charge. We also propose to furnish you, without extra cost, a suitable stool and scarf, or, in lieu of scarf, a rubber hood, with each instrument. - -
Thanking you for your consideration of the above, and trusting it may meet with the approval of both your-' selves and the- committee, we are,
Bespeetfully,
Montenegro-Biehm Music Co.”
For answer to this suit, the Board of Education presented a number of reasons why the relief prayed for should not be granted.
Upon a hearing of the case by the judge of the circuit court to whom the law and facts were submitted, the petition was dismissed, and this appeal prosecuted as a result thereof.
Section 2949 of the Kentucky Statutes, which is one of the sections relating to the powers and duties of the Louisville School Board, provides that the board shall have:
*723 “Power to govern themselves by such rules and regulations for school purposes as they deem proper, not to conflict with this act, nor the Constitution and laws of this State, nor of the United States; with power to contract and be contracted with, sue and be sued, to defend and be defended in all courts.” * * *
In section 2950 it is provided that the—
“Rules and by-laws shall be adopted by the board within thirty days after organization succeeding each election. They shall not be amended, suspended or repealed, except upon affirmative vote of not less than two-thirds of the members in office, upon yea and nay vote of the board, entered upon its records.”
In pursuance of the direction and authority to adopt rules and by-laws, the board previous to 1909 adopted an elaborate set of rules and by-laws for its government in the conduct and management of the schools, and these rules and by-laws' were in force from the time of their adoption until the board was legislated out of office on Janriary 1st, 1911. Among the rules so adopted was one providing that—
“No purchase of supplies or of materials of any kind shall be made from any one person, firm or corporation in any year to an amount in the aggregate of more than $500, except upon bids previously advertised for and accepted.”
It is conceded that there was no advertisement of the resolution authorizing the purchase of the pianos specified therein, and one of the chief grounds relied upon to defeat the right of the appellant company to obtain the ■relief sought is the failure of the School Board to observe the requirements of the by-laws in respect to advertising.
It is insisted by counsel for the School' Board that observance of this by-law was indispensible to the validity of a contract proposing to expend in the purchase of pianos more than $500 and that the appellant company was chargeable with notice of this by-law and had no contract right that it could enforce against the board. On the other hand, the argument of counsel for the appellant company is that this by-law should be treated as a mere directory parliamentary rule enacted by the board for the convenient transaction of its business that a majority of the board had the right at any time to disregard. That whether it be treated as directory or
Passing for the present the question of the right to proceed by mandamus, the respective contentions of counsel bring up for decision two questions that will be considered together: First, was the appellant company that was without notice of this by-law affected by its existence; and, second, was the by-law binding on the board and a compliance with its provisions necessary to constitute a valid and enforcible contract between the board and the appellant company.
The Louisville School Board was a public corporation created by statute for public purposes. In ascertaining its power and authority, we must look to the statute creating it and from which it derives all the rights enjoyed or exercised by it. The legislative act creating the board was general ,in its nature and left practically all. the details of its management of the schools' to be regulated by rules and by-laws to be adopted by the board. The act creating the board conferred upon it the' authority to enact by-laws and also prescribed how the by-laws and rules adopted might be amended, suspended or repealed, and we think it was the purpose of the Legislature in granting this authority to give to such rules and by-laws' as the board adopted the force and effect of statutory provisions. .Or, to state it differently, when the Legislature authorized the school board to adopt rules and by-laws for the government of the schools, it-was intended that these rules and by-laws should be as binding upon the board, until they were amended, or repealed,’in the manner'pointed out ■in the statute, as the statutory provisions- creating the board. The power conferred by the statute was more than a mere direction to enact parliamentary rules for the government of the board, because in the absence of statutory authority the board had the right to adopt such parliamentary rules for the convenient dispatch of its business as it might deem proper. This is a power that is inherent in ' every public and ’private body, and mere parliamentary rules are'of course not designed to be and- are not binding upon :any person or persons except tile members of the body that adopts them; and,
In Combs v. Bonnell, 109 S. W., 898, and Mefford v. Brown, 132 Ky., 201, this "'court recognized the binding force and effect upon public bodies.of by-laws adopted by them in pursuance .of' .legislative authority for the purpose-of-carrying-out the public duties imposed upon them by the statute, and held- in effect that .by-laws so adopted had the force and,.effect of statutory regulations.
Giving then to this by-law the effect of a statute; it is well settled that the appellant was charged with notice of its existence, whether it. had in fact notice or not. In Craycraft v. Selvage,-10 Bush, 696, it was said that persons; dealing with a municipal corporation are bound at their peril .to know, that .the contracts made by the officials of such- corporation áre made in the mode pointed out by the charter and ordinances,, and if they fail they must suffer the consequences. To. the same effect is Floyd County v. Oswego Bridge Co., 143 Ky., 693; City of Newport v. Schoolfield, 142 Ky., 287; Trustees of Bellevue v. Hohn, 82 Ky., 2.
• The remaining question’is, did the failure, to.observe this by-law invalidate the.-contract, or, in other words,
In view of the fact that the judgment of the lower court dismissing the petition of the appellant must be affirmed for the reasons stated, it is scarcely necessary that we should extend the opinion discussing the right to obtain the relief, sought by mandamus. But, in view of the fact that counsel for appellant insists that mandamus is an appropriate remedy in cases like this, we deem it proper for the purpose of again definitely settling the question of practice to consider the question. Section 477 of the Civil Code provides that:
“The writ of mandamus, as treated of in this chapter, is an order of court of competent and original jurisdiction, commanding an executive or ministerial officer to*727 perform an act, or omit to do an act, the performance or omission of which is enjoined by law; and is granted on the motion of the party aggrieved, or of the Commonwealth when the public interest is affected.”
The Code provision confines the exercise of this remedy to cases in which an executive or ministerial officer declines or omits to perform an act, the performance or omission of which is enjoined by law. It is a special remedy, although perhaps not an extraordinary one, provided for the purpose of furnishing a speedy method of obtaining relief against an officer who fails or refuses to perform some duty imposed upon him by law. It was not contemplated that in cases of this character disputed issues of fact should be settled, but that the rights of the parties should be determined by such issues of law as might be presented by the pleadings, or an agreed state of facts, or a state of facts about which there could be little dispute. As said in Lowe v. Phelps, 14 Bush, 642:
“It must, therefore, appear upon every application for a mandamus that it is the legal duty of the respondent to do that which it is sought to compel him to do, and that he has upon proper application refused to perform that duty.” To the same effect is Shine v. Kentucky Cent. R. Co., 85 Ky., 177; Norman v. Board of Managers, 93 Ky., 537; Dickens v. Cave Hill Cemetery Co., 93 Ky., 385; Cassidy v. Young, 92 Ky., 227; McDonald v. Jenkins, 93 Ky., 249.
It was not intended to aid a plaintiff in the enforcement of a mere contract right, or to take the place of the other remedies provided by law for the adjudication of disputed claims. Looking at the case from the. standpoint of appellant, it involves nothing more than an ordinary breach of contract. If, as contended, the appellant had a valid contract with the School Board, it also had had an adequate remedy at law to recover damages for its breach; and to permit the writ of mandamus to be used for the purpose of enforcing a mere contract right would be a wide departure from the settled practice in respect to the character of cases in which relief by mandamus may be obtained.
We do not think that the eases of Rodman v. Justice of Larue County, 3 Bush, 145; Elliott County v. Kitchen, 14 Bush, 289, or Anderson County v. Stone, 18 B. Mon., 847, support the contention of counsel for the appellant that a proceeding by mandamus is the proper remedy in
“The indebtedness being thus acknowledged, and the resulting duty to make a levy to pay it being, as hitherto adjudged by this court, merely ministerial, we have no doubt of the jurisdiction of the circuit court to compel the levy by mandamus. * * * The circuit court ought, therefore, to have ovérruled the demurrer and issued a mandamus, unless the appellees had by answer controverted the material allegations and shown cause sufficient for withholding the writ, which is. the appropriate and only adequate remedy in such á case.”
The Elliott County case was an effort by a bondholder to compel the county court to appoint a collector to collect a levy made for the purpose of paying off the bonds; and the court said:
“Appellee’s appropriate remedy is against the county court of claims, by mandamus, to. compel the court to levy and collect a tax, and pay the bonds as provided in the act authorizing their issue.”
We have not been referred to' any case decided by this court in conflict with the rule we have announced. If a valid contract had been made between the appellant company and the School Board, and the School Board in pursuance of the contract had accepted the pianos and
"Wherefore, the judgment of the lower court is affirmed.