School District No. 5 v. Lord , 44 Me. 374 ( 1857 )

Rice, J.

Replevin to recover possession of the records of the district alleged to have been unlawfully taken and detained by the defendant. To maintain replevin there must have been a right of possession in the plaintiffs at the time of taking or detention. That right may follow either the general or special ownership of property. That the general property in the records in dispute was, and is, in the plaintiffs, is not controverted; but it is asserted by the defendant that he is clerk of the district, and in that capacity has a special property in the records, and the right to their custody and possession; and further, if he should be adjudged not to be the legal clerk of the district, then he contends that the right of possession is in one Shaw, whom the plaintiffs affirm to be the legal clerk; and therefore, in either case the action cannot be maintained.

The clerk is the officer and servant of the district. As between the district and a stranger, the possession of the records by the clerk is the possession of the district, and replevin may be maintained in the name of the corporation. First Parish in Sudbury v. Stearns, 21 Pick. R., 148. If the question of right to possession should arise between the district and their legally elected and qualified clerk, the result would be different. The action is therefore rightfully brought, and may be maintained, if the defendant was not the legal clerk of the district.

By s. 3d, art. 1, ch. 193, laws of 1850, it is provided that any town at its annual meeting for the choice of town officers, may vote to choose, and in such case shall choose an agent for each school district in such town.

By s. 10, art. 2, every school district, at its annual meeting, shall choose by ballot a school agent, unless such agent shall be chosen by the town, as provided in article first, section third.

Section 5, in article 2, provides that school district meetings, on tho written application of any three or more legal voters in such districts, respectively, stating the reasons and objects of the proposed meetings, may be called by the selectmen of the town containing such district; or by the school district agent or agents, if any have been appointed.

Section six points out the manner in which the selectmen or district agent, as the case may be, shall give notice, “ on receiving any such application.”

Article 6, s. 1, provides that the duties and powers of .school agents shall be as follows :

First. In the month of March or April, annually, to call district meetings for the choice of agents, and for other business, by causing notice to be given as provided in tho fifth and sixth sections of article second of this act.

The plaintiffs contend that this last section authorizes agents to call meetings of the district in the months of March or April, on his own motion, and without the written application of three or more of the legal voters of the district. The whole statute must be construed together, and if practicable, force given to all its provisions. The agent is directed to call meetings in March or April, by giving notice as provided in the fifth and sixth sections of article second of this act.

Section fifth, already cited, authorizes the calling of meetings on tho written application of three or more legal voters, by tho selectmen or school agent, and section sixth prescribes tho manner in which notice shall be given on the receipt of such written application, by the selectmen or agent.

By this reference we think it is manifest that the legislature intended that the agent should be governed by the provisions contained in the fifth section, as well as those contained in the sixth, when he assumes to act; otherwise the reference to the fifth section is wholly unmeaning.

The statute provides two modes in which the meetings of school districts may be legally called, and as it stood before the passage of the act of 1856, ch. 225, did not give one mode precedence over the other. The result is, that where both modes were resorted to by different parties in the same district, to accomplish the same objects, the meeting which was first legally held had the precedence. Since the passage of the act of 1856, no such opportunity for conflicting meetings has existed.

It is contended by the plaintiffs, that the act of 1856, ch. 225, was intended to be explanatory of the provisions of the act of 1850, ch. 193, which we have already cited, and should control its construction. Such doctrine is inadmissible. Legislatures enact laws — courts expound them.

Those meetings of the district which have been called by the school agent, on his own motion, without the written application of three or more legal voters of the district, were not called in conformity with the requirements of the statute, and the acts of officers chosen at such meetings would be binding only as the acts of officers de facto.

The defendant does not show a legal election. The application to the selectmen to call the meeting at which he was elected, appears to have been in due form, but it was premature, bearing date two days before the town meeting was held, in March, at which it would have been determined whether the town would elect school agents, or permit the several school districts to exercise that right, and apparently before the selectmen were chosen who assumed to act upon that application. Any action upon that application was, under such circumstances, inoperative and void. According to the agreement of the parties, the action must stand for trial.

Tenney, C. J., Appleton, Cutting, May and Davis, J. J., concurred in the result.