Mollohan v. Cavender
In Mollohan v. Cavender, 75 W. Va. 36, 83 S.E. 78 (1914), a writ of mandamus was sought to compel the county superintendent to authorize payment to a lawyer who had been hired by an independent district board of education.
The Court observed that the only statute on the subject was one requiring the prosecuting attorney to represent the district boards of education. See W. Va. Code ch 39, 49, at 676 (1913) (Hogg 1914) (sec. 1602).
After surveying how other courts had decided the issue, the Mollohan Court held, in Syllabus point two:
But said section (W. Va. Code ch 39, 49, at 676 (1913) (Hogg 1914) (sec. 1602)) does not deprive such independent district boards of the implied power, to employ other counsel, or additional counsel to assist the prosecuting attorney, where, in their judgment and reasonable discretion the character of the business, or on account of the absence of the prosecuting attorney, or his incapacity, sickness, or other disability, or his refusal to act, there is necessity therefor.Because the prosecuting attorney had consistently declined to represent the independent district board of education, the Court concluded that the board was within its authority to hire counsel and granted the requested writ.
Thus, under Mollohan, a board's authority to hire counsel was limited to circumstances where private counsel was required due to "the absence of the prosecuting attorney, or his incapacity, sickness, or other disability, or his refusal to act." Syl. pt. 2, in part, Mollohan.
It is noteworthy, however, that the Court found that the boards possessed this limited authority notwithstanding the fact that there was no express statutory support therefore, and where the board's charter did not include a "special provision for an attorney to advise it, or represent it in litigation begun or defended by it." Mollohan, 75 W. Va. at 37, 83 S.E. at 79.