Town of Coffee Springs v. Glover , 10 Ala. App. 475 ( 1914 )

WALKER, P. J.

By the judgment appealed from the appellant municipality, the town of Coffee Springs, was charged with liability on a contract, entered into by its mayor and councilmen, with the appellee for the employment of the latter as a teacher of a school of the school district which the town constituted. — Code, § 1356. The contract was made at a time when the powers of the municipality were governed by the provisions of the general municipal law, which is set out in volume 1 of the Code. By that law full powers of management and control of the public schools in a town, including the employment of teachers and the fixing of their salaries, are vested in a board of education, the mode of selecting which is different in the case of a town having a population of more than 1000 from that which is prescribed when the town has 1000 population or less. —Code, §§ 1353, 1355. The result of a failure of a municipality to have a board of education, as contemplated by the law, is shown by section 1701 of the Code, which is as follows:

“In all municipalities where there is a board of education, the board shall have full charge and control of such separate school district, and shall have and exercise all tlie powers and authority conferred by law upon township trustees. In municipalities where there is no such board of education, the powers and duties of trustees shall devolve upon and be performed by the mayor and board of aldermen, or other governing body, of said municipality, and all funds due such separate school district shall be paid to the board of education of such separate school district, or to the mayor, board of aider-men, or other governing body of such municipality, where there is no such board of education, by the county superintendent of education, as required by law.”

We understand that an effect of this provision is that the mayor and councilmen of the appellant municipality are not vested with authority to exercise any of the powers in relation to the public schools of the town which primarily are conferred on a board of education, unless at the time such authority is undertaken to be exercised by them the municipality is one in which there is no board of education as provided for by statute. In other words, the existence of such authority in the governing body of the municipality is made dependent upon its not having a board of education. The power does not exist in the absence of the statutory prerequisite of its existence. A contract Avhich is outside the pale of the corporate authority confers no right, and neither the making of the ultra vires contract nor the receiving of benefits under it estops the corporation from setting-up its invalidity.- — Cleveland School Furniture Co. v. City of Greenville, 146 Ala. 559, 41 South. 862.

In the trial which resulted in the judgment which is appealed from there no evidence tending to prove that the appellant did not have a board of education, as provided for by statute. A result of the absence of such evidence was that it Avas not made to appear that the contract upon which the plaintiff had to rely for a recovery was one upon which the defendant could be charged with liability. The plaintiff having failed to introduce evidence which was essential to his right to recover, the general affirmative charge in its favor, which was requested by the defendant, should have been given. The judgment is reversed for the error committed by the refusal of the court to give that charge.

The plaintiff not having shown that the contract upon which he relied was made by officers authorized to bind the defendant by such an obligation, it is not necessary to inquire whether or not, if it had been shown that those officers possessed the requisite authority, the contract, as made by them would have failed to bind the defendant, because it was not executed in the particular mode which is prescribed by statute. — Code, § 1183.

Reversed and remanded.