CHARLESTON.

#### O. Emerson Campe *v.*Board of Education of Louden District *et al.*

Submitted January 29, 1924.

Decided February 26, 1924.

1. Schools and School *Districts*— Teacher *Oould Not Compel Paymen't of Unauthorised Salary.*

A teacher who has contracted with the board of education for a salary in excess of an amount authorized by law cannot compel the board to pay him the stipulated salary, (p. 5380.

2. Former *Adjudication*— One *Relying on Defense of Res• Judi-cata Must Plead and Prove It.*

One relying upon a defense of *res adjudicata*must properly plead and prove it. (p. 538).

Error to Circuit Court, Kanawha County.

Action by O. Emerson Campe against the Board of Education of Loudon District and others. Judgment for plaintiff, and defendants bring error.

*Reversed and writ refused.*

*John T. Simms,*for plaintiffs in error.

*J. S. Lilly*and *J. M. Life,*for defendant in error.

.Litz, Judge:

On petition of 0. Emerson Campe,' the circuit court of "Kanawha county awarded a peremptory writ of mandamus ■against the respondent, Board of Education of Loudon Dis-■trictfi in Kanawha county, its members L. H. Rogers, L. G-. Mills and H. C. Zoggs, and secretary, L. H. Oakes, requiring "that they pay to the petitioner wages due and to become due "him for services as a public school teacher of said district .-at the rate of $237.50 per month during a term of eight months. To that judgment respondents obtained this writ ■of error.

'The alternative writ herein sets forth that on June 30th, 1923, the said board of education as then constituted entered *537into a contract’ with, petitioner whereby be was employed as principal of the public scbpol at Kanawha City in said district during the school year beginning July 1st, 1923, at a salary of $237.50 per month; that thereafter the present members of the board refused to recognize the contract, ■“which action on their part necessitated said 0. Emerson Campe to secure a writ of mandamus against said board of education in the Supreme Court, and that, notwithstanding said proceeding before said Supreme Court said board of education has failed to pay said 0. Emerson Campe the said sum of $237.50 for one month’s services, which he has rendered under said contract with said board, but on the contrary has sent him a check for only $175.00 as payment for said services, and that said 0. Emerson Campe refuses to accept said amount as payment in full for said services, as it is in no way a compliance with the terms of said contract ’ ’; that the board of education has sufficient funds under the levy of the present school year to pay petitioner the full contract price for services rendered and to be rendered under the contract.

The respondents in their return to the alternative writ resist payment to petitioner of a greater monthly salary than $175.00 on the ground that the board has no greater amount legally at its disposal for this purpose. In support of the return the respondents show by affidavits that in order to conduct a minimum term of eight months school required by Section 55, Chapter 45, Code, bn the scale of wages fixed by the old board with petitioner, would require the expenditure of at least $8,128.00 more than the board has legally .at its disposal for the purpose; and further that all of the available funds will be consumed in the employment of a district supervisor and the payment of teachers on the basis of $175.00 per month to petitioner.

Under Section 55, Chapter 45, Code, the board of education is required to- provide for a minimum school term of eight months and to fix the salaries of teachers on a uniform basis according to a schedule of qualifications. Respondents show that in applying the maximum levy for the conduct of an eight months term of schools, the principals were given an advantage over the primary teachers in the distribution of *538tbe surplus aboye tbe amount required to' pay minimum salaries by allowing tbe former $45.00 per month, and tbe latter $4.00 per month, increase.

Tbe petitioner, without successfully meeting tbe defense that tbe board cannot legally pay to him a greater salary than $175.00 per month, relies on tbe former proceeding in mandamus- mentioned in the alternative writ, as now estop-ping tbe board from setting up this defense. It will be observed that tbe alternative writ does not definitely plead tbe former proceeding, nor what it decided; but alleges as a part of petitioner’s case that there are legally at the board’s disposal sufficient funds to pay the salary stipulated in the contract. It is a rule of this court that *res adjudioata*must be properly pleaded as well as proven in order to affect pending litigation. Tbe party relying thereon must frame his pleadings so as to bring it within tbe issues. *Crumlish’s Admr.*v. *Shenandoah Val. R. Co.,*45 W. Va. 567; *Beall*v. *Walker,*26 W. Va. 741; *Lawson*v. *Conaway,*37 W. Va. 159. Not only does tbe alternative writ fail properly to plead estoppel against tbe board by an adjudication in a former suit, but tbe record in that case is neither introduced nor referred to in tbe pleadings as evidence in this case.

Section 12, Chapter 28-A, Code, forbids tbe board of education from entering into *any*contract, “express or implied, tbe performance of which, in whole *or in part,*would involve tbe expenditure of money in excess of funds legally” at its disposal; and further declares that such contract shall be void and! of no effect. This statute also authorizes suit by tbe board to recover back money paid by it on such illegal contract.

"We are therefore of opinion that the petitioner has not shown himself entitled to the relief sought.

The judgment of the lower court is therefore reversed and this Court, proceeding to enter such judgment as should have been entered below, refuses the peremptory writ, with costs to respondents.

*Reversed and writ refused.*