39 W. Va. 497 | W. Va. | 1894
This is an injunction by and on behalf of the citizens and taxpayers of Ripley School District to restrain and enjoin the payment of three certain drafts for four hundred and twenty dollars each on the ground of illegality. On the 15th day of November, 1893, defendant Thomas E. Davis moved to dissolve the injunction, which motion the court overruled, refusing to dissolve same, from which order this appeal was allowed. Code, c. 135, s. 1, cl. 7. Stating the contract and orders as if they were valid, the' facts are as follows: On the 25th day of September, 1891, the Board of Education of Ripley District in Jackson County entered into a contract with one of the defendants, viz: the Educational Aid Association of Chicago, for the purchase of forty two sets of “Public School Study Made Practical,” to be delivered on board the cars, and shipped to J. F. Coast, Jackson C. II., Jackson county, W. Va., on the 15th day of October, 1891, in consideration of which the board of education agreed and bound itself to pay to the Educational Aid Association one thousand two hundred and sixty dollars, being thirty clol-> lars per set, to be paid in the following manner: Four hundred and twenty dollars clue 1st December, 1892; four hundred and twenty dollars due December 1,1893; and fo.ur hundred and twenty .dollars due December 1, 1894;—
“No. 44. Ripley District, W. Va., Sept. 25,1891. Sheriff of Jackson County: Pay to the order of Educational Aid Association, or bearer, four hundred & twenty dollars aud charge to the building fund of Ripley district. By order of the board of education. Due Dec. 1st, 1892. (Without interest.) J. E. Coast, President I. S. Little, Secretary. $420.00.”
“No. 45. Ripley District, W. Va., Sept. 25,1891. Sheriff of Jackson County : Pay to the order of Educational Aid Association, or bearer, four hundred & twenty dollars, and charge to the building fund of Ripley district. By order of the board of education. Due Dec. 1st, 1898. (Without interest.) J. E. Coast, President. I. S. Little, Secretary. $420.00.”
“No. 46. Ripley District, W. Va., Sept. 25,1891. Sheriff of Jackson County : Pay to the order of Educational Aid Association, or bearer, four hundred & twenty dollars, and charge to the building fund of Ripley district. By order of the board of education. Due Dec. 1st, 1894. (Without interest.) J. F. Coast, President. I. S. Little, Secretary. $420.00.”
They are not negotiable even apart from the fact that they lack the statutory requirement of being payable at a bank, etc. (section 7, c. 99, Code); for the intention in such case as a general rule is to authorize the payment, and furnish vouchers to the proper disbursing officers, aud> not to put negotiable instruments in circulation ; and they do not cut out equities as against the corporation, or in this case as against the resident taxpayers ; and further on the ground that there is no implied authority in such officers to
On the 14th day of November, 1891, F. M. Durbin of the city of Parkersburg for a valuable consideration sold and delivered the three orders to the appellant, Thomas E. Davis. They bear no indorsement. On the 18th day of January, 1893, the plaintiffs filed their bill and obtained from the judge in vacation on the 19th day of January, an order of injunction, as prayed for, restraining the late sheriff, James M. Poling, and the present sheriff, I. M. Adams, from paying said sum of one thousand two hundred and sixty dollars, or said orders or any part thereof.
The material grounds, upon which the plaintiffs base their right to the injunction in their original and amended bills, are as follows : (1) The order making and setting forth the contract of purchase was illegal, because Commissioner D. L. Sayreal, though present did not concur, and he was necessary to constitute a quorum. The proceedings do not show upon their face who called the meeting and directed notice to be given. That none in fact was given. That, therefore, the meeting was illegal, and its proceedings void. (2) The board had no authority under the law to use the building fund in the purchase of such things as those designated as “Public School Study Made Practical.” (8) It was a-debt directed tobe paid out of the school-money of subsequent years, and was therefore unlawfully incurred, in violation of the school-law (section 45, c. 45, Code).
The defendant, Thomas E. Davis, was made a party defendant on his own petition and answered, that he purchased the orders in controversy for a valuable consideration ; — that a levy was made for the payment of the order No. 44, duo December 1, 1892; — that plaintiffs before that time had notice of defendant’s purchase ; — that the levy was legal; — that each plaintiff had notice of the levy and had paid the assessment before the suit was brought, and they are therefore estopped as to the order No. 44, foy
Several questions of pleading and practice are raised in this record and discussed by defendants’ counsel, which call for some consideration. On the 10th day of March, defendant, Thomas E. Davis, hied his petition alleging, that the agent of the defendant, the said Educational Aid Association, had placed the three orders in the bill and proceedings mentioned, amounting to one thousand two hundred and sixty dollars, the payment of which had been enjoined, in the hands of E. M. Durbin, to he sold ; and that he had bought the same, and paid the cash therefor, and was now the owner; and that defendant, the Educational Aid Association, had no longer any interest whatever in these orders. Thereupon the court ordered that Davis be admitted a party defendant to the suit, with leave to plead, demur or answer. Davis appeared by attorney, waived process, and tendered in opeu court his written demurrer to the bill, which was ordered to be filed and set down for argument, and also filed his answer, and moved to dissolve the injunction. Plaintiffs excepted to this an
It i$ not necessary to consider defendant Davis’s demurrer to the original bill; for, when the prayer of his pe-' tition to be made a party defendant was allowed, the amendment of plaintiff’s bill by reason thereof became necessary, for up to that time it contained nothing to justify a decree against him, for it proceeded in its allegations on the supposition, that defendant, The Educational Aid Association, was still the owner and holder of the three school-drafts, aud was seeking to collect them from the late and present sheriff of Jackson county, out of the building fund of Ripley District. Defendant Davis had made an amendment necessary to some extent before there could in strict propriety be entered any order on his behalf or in his favor; and for the same reason the amended and supplemental bill being sworn to and filed by leave of the court, did not operate as a dissolution of the injunction or require a new order.
In our practice we are not careful to observe some of the distinctions between bills in naming them — as, for example, between a bill of amendment and supplemental bill — but we take them to be what they arc in fact, without regard to the name given them. See Sturm v. Fleming, 22 W. Va. 404; Laidley v. Morrifield, 7 Leigh 346. In this case a change of interest and ownership of the orders disclosed by defendant Davis’s petition did not make a supplemental bill proper, for it appeared that such change of interest had taken place before the institution of the suit. If I
A pleading can be filed in court, process thereon may be a'warded in court, and made returnable to court (see section 2, c. 124) if it does not run longer than ninety days; or it may be, and generally is, sent to rules, with award of process. The amended bill, after defendant’s appearance, answer, etc., may be presented to the court, with leave asked to file the same, and it will be granted on proper cause shown, and due notice to the other pnrty; or leave to file will be giveu without notice, subject to defendant’s right to have the same dismissed after his objection, if it is shown to have been improperly filed. Another reason for presenting it in court is it is an amended bill of injunction, which, among other things, prays that the prayer of the original bill of injunction may be granted, etc. It is sworn to, and plaintiff did not wish to run any risk of its operating as a dissolution of the injunction, or as grounds.for its dissolution, by filing it without leave at rules. Bee 1 Daniel, Ch’y Pr. (6th Am. Ed.) top page 424.
Defendant also objected because it was tendered after his motion to dissolve. In that there might have been some force if his motion to dissolve had not been made before he was properly a party defendant to the suit, as he only became so so as to have a standing in court as a defendant,
It is a cardinal principle in equity that all persons materially interested, either legally or beneficially, in the subject-matter of the suit, must be made parties. Rexroad v. McQuaine, 24 W. Va. 32. And when, as in this case, the court orders him to be made a party defendant, until and unless the original bill is amended so as to contain some allegations against him, or in regard to him, the court could render no decree against him ; and, if it did so, such decree would be a mere nullity. See McCoy v. Allen, 16 W. Va., 724. Here defendant Davis is not named in the original bill. There is no allegation anywhere in it, which bears upon him or in any manner refers to him; nor is any decree prayed for against him. It is a solecism to speak of his answering or demurring to a bill of injunction, in which he is not named, or moving to dissolve an injunction, in which he does not by any inference appear to have any interest or concern. See Moseley v. Cocke, 7 Leigh 226; Ford v. Doyle, 37 Cal. 346; Newman v. Mollohan, 10 W. Va. 503. And this depends upon the principle that all orders and decrees must be justified by the pleadings, aud that a plaintiff can no more recover without sufficient aver-ments in his bill than he can without proof of his aver-ments properly made. Pusey v. Gardner, 21 W. Va. 469; Bierne v. Ray, 37 W. Va. 571 (16 S. E. Rep. 804.)
This brings us to the demurrers. As we have already
Bearing in mind the frame of the bill, and the end to which it is adapted, and the consequent relief specially prayed for, will save us the discussion of several matters
It is also assigned as ground of error that the court, on the hearing of the motion to dissolve, permitted the plaintiffs to read, in support of their bill, two ex parte affidavits taken without notice. As generally used and understood, that constitutes the main distinction between a deposition and an affidavit. The one is evidence given under interrogatories, oral or written, taken down and certified by some officer duly qualified at a time and place of which the opposite party has notice; so that he may attend and cross-examine. And the giving of the evidence is compulsory on the witness. The affidavit is not compulsory on the witness, and therefore it might bo useless to give notice. Its distinctive characteristic is that it is voluntary and ex parte. Notice, however, is often required and given. The affidavit may be filed by order of the court, as was done in this case; and then the court may, and often does, for cause shown, permit the other party to cross-examine, and the testimony of the witness then
I do not see that the affidavit of James M. Poling, late sheriff', tends to contradict any record. It is to the effect that, when his settlements were made with the building fund of Ripley district — on the 15th day of October, 1891, for tine year 1890 ; on the 15th day of July, 1892, for the year 1891; and on the 15th day of July, 1893, for the year 1892 — if all the orders outstanding against the fund and then unpaid had been in, the respective balances against him would have been small, it being used as evidence tending to show that, after the settlements made, there were other unpaid orders to reduce the fund. However, in the view taken, it is not necessary to lay any stress upon either affidavit. The other affidavit describes the desk charts and large illustrated charts, and accompanying box and easel. The second amended bill files one set of these ^charts, etc., called in the contract of purchase “Public School Study Made Practical,” as an exhibit with the bill, and alleges that all the other sets are like the one filed; and .this amended bill had no other purpose, and the affidavit was intended to describe them as a matter of convenience, and also to show that they are not a part of the series of charts and text-books prescribed by section 58 of chapter 45 of the Code. Where the character of the chart and map is a
The main objection of counsel to these affidavits is that they were read on final hearing. In this I think they are mistaken and have misconceived the nature and effect of the order of the 'court; for it says that “defendant’s motion to dissolve the injunction is overruled and disallowed, and this case is continued,” and there has not yet been any other hearing than on defendant’s motion, nor any final decree. It is evident from the language used, that the circuit judge was careful to avoid the possibility that the fact of his having overruled the motion to. dissolve should be construed into any thing savoring of making it perpetual. That question was left open. The injunction still stands [see 2 High. Inj. (3d Ed.) § 1576] until further order, awaiting the final hearing.
At length we reach the merits. (1) Were these charts such things as the board was authorized by law to buy? (2) And, whether authorized or not, were the manner and the time of payment lawful ? Chapter 45 on “Education” comprising more than one hundred sections is our Code on the subject. See Code (Ed. 1891) p. 359, and chapter 26 p. 75, Acts 1893; and the same published, with notes of decisions (1894) by Virgil A. Lewis, Esq., State Superintendent of Eree Schools.
Section 45 of chapter 45 reads as follows : “It shall not be lawful for the board of education of any district or independent school district to contract for or expend in any year more than the aggregate amount of its quota of the general school fund, and the amount collected from the district or independent school district levies of that year, together with any balance remaining in the hands of the sheriff or collector at the end of the preceding year and such arrearages of taxes as may be due such district or independent school district. Hor shall such board hereafter incur any debt to be paid out of the school money of. any subsequent year.”
But it is said that this was not intended. It is only a method of paying by installments out of funds now in hand or in easy reach. That may be all right enough if the orders had in some way shown that the}7 ^ere to reach backward, and not forward, for the means of payment. But they do just the reverse. They could not have more explicitly indicated that they were payable out of the school money of subsequent years — No. 44, on the 1st day of December, 1892, out of the building fund of that year; No. 45, on December 1, 1893; No. 46,. on December 1, 1894 — all without interest, and after the levy of that year has become due and payable.
These orders as a mode of payment of a debt, which by law was not payable out of the school money of any subsequent year, were in plain violation of law; aud I do not deem it material to consider, whether putting this and that together, that one or more of the treasurers may owe, there can be made up enough in hand aud in easy reach to pay the debt incurred. When that is the case, let provision be made that it shall be paid out of that fund and out of no other ; otherwise, it will be sure to fasten itself upon the fund prohibited, as it did in this case according to defendants’ own showing.
Of the power to levy under certain special charters I need not speak. This general law (chapter 45) was intended to be of and -within itself a Code, covering the whole subject; somewhat like chapter 50. And as it contemplates that these important and permanent schools may now have by gift or in any wise, and may hereafter come to have by purchase, libraries-and philosophical and other apparatus, section 14 provides that the trustees shall visit the schools, aud among other things see that these are kept in good order. I have no doubt that some schools have already acquired in that way the beginning of quite useful libraries. This law say’s: “Lot them be taken ¡are of, and kept in good order.” But it is contended by plaintiffs’ counsel that as long as the state refrains from buying for the school children their school books, and furnishing them without cost, yTou cannot go broadcast under this fourteenth section in buying for each of these schools one thousand two hundred dollar sets of maps and charts, with easels, etc., to hold them, and books, etc., to explain them; that it will be time enough fofthis when the law plainly author
Both pláiu tiff's and defendant Davis allege that, after the purchase of these maps and charts had been made, the Boai'd of Education made, in the school year 1892, a levy for the payment of the order Ho.,44* for four hundred aud
We see no error in the decree complained of. The mo-, tion of the defendant to dissolve the injunction .was properly overruled, and the injunction permitted to stand until further order to be made at the final hearing.