136 Ky. 628 | Ky. Ct. App. | 1910
Opinion op the Court by
Reversing.
The purpose of this litigation is. to determine whether the appellant Ellen Terry or the appellee
On July 1, 1908, Samuel Combs and Elisha Gross, who claimed to be acting as trustees of the district, entered into a contract with Ellen Terry, by which they employed her to teach the school. Under this contract she commenced the school on July 6th, and continued to teach until September 21st, on which date she was restrained from further teaching by an order obtained by Nellie Cornett in this action, brought by her on September 19th. In her petition she averred that on July 1st, as well as on the 7th of the same month, the trustees were Henry Spencer, Granville Spencer and Samuel Combs, and that on the 7th two of the trustees, Henry Spencer and Gran-ville Spencer, entered into a contract with her to teach the school for the school year. She further averred that Elisha Gross, one of the persons who as trustee made the contract with Ellen Terry on July 1st, was not on that date a trustee, and, therefore, the contract made with Ellen Terry by Elisha Gross and Samuel Combs was a nullity, and did not entitle her to teach the school, or to receive any of the school fund. She asked that she be adjudged the legally employed teacher for the year, and entitled to the whole of the school fund. Ellen Terry in her answer, after averring that Gross and Combs were Irustees, and setting up her contract with them, denied that Granville Spencer, one of the persons who made the contract with Nellie Cornett on July 7th, was a trustee. She made her answer a counterclaim, and asked that she be adjudged the legally employed teacher of the school for the year, and entitled to the whole of the school fund. The question
The superintendent of schools of Breathitt county in his evidence said that Granville Spencer was appointed on June 28, 1907, to serve from July 1, 1907, until the 1st day of July, 1908, that on June 29, 1908, he appointed Elisha Gross as trustee in place of Granville Spencer, to take his office on July 1st, and hold until July 1, 1909, and that on the day of his appointment he qualified by taking the oath of office; that he recognized Sam Combs, Henry Spencer, and Elisha Gross as the trustees of the school on July 1, 1908. The evidence further shows that both Henry Spencer and Granville Spencer were present when the contract was made with Ellen Terry on July 1st, and knew that Elisha Gross, who had been appointed trustee to succeed Granville Spencer, was acting as such trustee when the contract was made with her, and that she commenced her school on July 6, 1908. Upon hearing the case the court sustained the injunction, and adjudged that Nellie Cornett was entitled to $183.62 of the school money set apart for that school in 1908, and Ellen Terry was entitled to $155.17. In short, the school fund was divided between the contestants in proportion to the time each taught.
It being conceded that Granville Spencer was the duly appointed and acting trustee on June 29th, as well as June 30th, and that his term did not expire until the beginning of July 1, 1908, the argument is made in behalf of appellee that the appointment
In support of the proposition that an appointment made to fill a vacancy before the vacancy actually exists is void counsel for appellee calls our attention to McGlone v. Zornes, 107 S. W. 329, 32 Ky. Law Rep. 965. In that ease the only point decided was that an appointment to presently fill a vacancy when there was no vacancy' was a nullity. Of course, if an office is not vacant, no person can be appointed to fill it. But that is not the case we are dealing with. And to the case of Sheperd v. Gambill, 75 S. W. 223, 25 Ky. Law Rep. 333. There the question to he determined was whether Lewis Turner or Sam Spicer was trustee on July 1, 1902, when the contract with Gambill was made. It appears that the' term of Lewis Turner as trustee expired on June 30, 1902, and the superintendent of schools, whose term expired on January 5, 1902, appointed Turner on January 2, 1902, to fill the vacancy in his office, which would occur on July 1, 1902, as there had been no election
We can well understand that there might be good reasons presented against the practice of making an appointment to fill a vacancy that would occur at a distant date, and have no doubt that it would be very objectionable to allow an official to make an appointment to take effect in the future when the vacancy to fill which the appointment was made would occur in the term of a succeeding official. To uphold the validity of such an appointment would oftentimes enable an official to take from his successor a part of the rightful powers and emoluments of his office, and surround him with offensive appointees not in harmony with his methods or in sympathy with his purposes. Upon grounds of public policy an official charged with the responsibility of administering the affairs of his office should have the right, in the absence of a statute to the contrary, to select persons to fill vacancies occurring during his term that the law authorized him to make appointments for.
It follows from these views that the appointment of Gross, was legal, and consequently the contract made with Ellen Terry by the two trustees gave her the authority to teach the school for the term and the right to receive the public money.
