Underwood v. School Township 16

STONE, J. Section 6, article IV, of the act “ to render more efficient the system of free public schools in the State of Alabama,” (Pamph. Acts of 1855-6, p. 44,) reads as follows: “That the county superintendent must promptly pay over the money in his hands, according to the provisions of this act; and, failing to do so, he shall be liable to the penalties set forth in section 382 of the Code of Alabama, against treasurers who fail to pay over school funds.” Under this section, we are asked to sanction the application of a summary remedy against the superintendent and his sureties, on his bond. The word penalties is not comprehensive enough to embrace the measure of recovery, the form of proceeding for its enforcement, and persons not otherwise named* against whom to render the judgment. It certainly could not be successfully asserted, that a summary remedy, and that against sureties, is furnished by the words, “ he shall be liable to the penalties.” What we have said above is decisive of this proceeding. [2.] In a future suit it may become a material inquiry, whether a performance by the trustees, of all the duties enjoined by section 13, article II, of the act we are considering, is a condition precedent to their right to proceed against a county superintendent under section 6, article IV. There is nothing in the language of section 5, article IV, which makes the right of trustees to demand and receive moneys due to their township to depend on the performance of duties anterior to the date of their appointment.- Without announcing at this time what would be our decision, if trustees failed for a time to perform the duties enjoined upon them, and afterwards [33] did comply with the requirements of section 13, article II, it is obvious tbat, if trustees, from and after their election or appointment, discharge their duties, and at the time appointed, section 5 of article IV imposes no disabilities on them. Ye have laid down this rule, because cases may arise where there is a temporary vacancy in the office of trustee, or the acting trustees may be derelict in duty. Such vacancy or dereliction can oppose no obstacle to subsequent trustees, who discharge their duties. From the facts recited, we suppose this principle is applicable to the default here complained of. Judgment of the circuit court reversed, and the cause remanded.