Mississippi Supreme Court, 1934

Whitehurst v. Smith

Mississippi Supreme Court · Decided June 11, 1934 · <bold>Griffith, J.,</bold> delivered the opinion of the court.

155 So. 683; 170 Miss. 535; 1934 Miss. LEXIS 180 (Southern Reporter)

Counsel

J.F. Dean, of Senatobia, and Logan Barbee, of Hernando, for appellant. That a teacher has a valuable right which entitles him to mandamus, and that mandamus is the proper remedy in this cause is too well settled for argument. Brown v. Owen, 75 Miss. 324 ; Whitman v. Owen, 76 Miss. 783 ; Baria v. Alexander, 158 Miss. 557 , 130 So. 754 ; State v. Morgan, 141 Miss. 585 , 106 So. 820 ; Lander v. Talbert, 121 Miss. 592 , 83 So. 748; Strickland v. Copeland, 166 Miss. 244 . Nothing in the petition sustains this ground of demurrer. The mandamus is sought because the school district cannot be sued. Landers v. Talbert, 121 Miss. 592 , 83 So. 748. No discretion of the superintendent of education is involved. The law requires the county superintendent to make a contract with teachers holding proper license when duly and legally elected, and the election must be reported to the county superintendent in due time, and to pay the teacher. This is mandatory. State v. Alexander, 158 Miss. 557 . The case of Strickland v. Copeland, 166 Miss. 244 , settles this case. It might be suggested that appellant was guilty of laches, that while he had the unquestioned right to teach the school he should have either enjoined the other teacher from teaching the school, or filed this mandamus suit at once to force the county superintendent to contract with him. In the Copeland case it was not held to be laches, and why should a different rule apply in this case. The statute of limitations applies in mandamus as in other cases but in addition to this the authorities hold that an action of mandamus will not lie when proceedings are pending in court for the adjudication of the question involved. 19 A. E. Ency. Law, 756; 38 C.J. 832 and 833 and notes. But it may be said that the delay of action by appellant caused loss by the payment of the salary to another, but payment to another when illegal is no defense to an action of mandamus. 38 C.J. 717 and 718, and notes; Hebron Bank v. Lawrence County, 109 Miss. 397 , 69 So. 209. The salary here was unquestionably due appellant and the fact that the county superintendent of education arbitrarily and illegally refused to contract with him and pay him his salary, and illegally paid it to another, will not estop him from now claiming and collecting his salary. E.D. Dinkins, of Senatobia, for appellee. It was said in Lusk v. Seal, 129 Miss. 235 , that "the concession of fact or law in a decision by this court does not thereby decide the law point, for it is merely a concession which may or may not be upheld as the law in the case subsequently when the question is raised and presented for our determination." Larson v. First National Bank, 66 Neb. 595 , 92 N.W. 729. I respectfully suggest to the court that the question presented by this appeal should be held moot as, preliminary to requiring the issuance of pay certificates to Whitehurst, the appellant, the petition seeks to require the superintendent to enter into a contract with him to teach the school for the terms then past. Yates v. Beasley, 133 Miss. 301 , 97 So. 678 . It is a principle governing mandamus proceedings that if anything preliminary to the issuance of the writ remains to be done, that it will not be ordered. In this case the petition seeks to require the superintendent to enter into a contract with him to teach the school for the terms mentioned. This, of course, was impossible after the expiration of the terms and after the school had actually been taught by another. American Oil Co. v. Bishop et al., 163 Miss. 256 , 141 So. 271 ; Woods v. State, 142 So. 747 . In Ayres v. Board of Trustees, 134 Miss. 363 , 98 So. 847, this court held that agricultural high schools are agencies of the state and as such are not subject to suit. Nabors v. Smith, 135 Miss. 608 , 100 So. 177. A suit against a public officer is a suit against the state. 18 R.C.L. 115, sec. 27; 25 R.C.L. 413, sec. 50; L. N.R.R. Co. v. Burr, 44 L.R.A. (N.S.) 202; Hampton v. State Board of Education, 42 A.L.R. 1456, 105 So. 323 ; State v. Board of Liquidation, 67 So. 370. Officer may not be paid unless service is rendered. McAfee v. Russell, 29 Miss. 84 ; Swan v. Buck, 40 Miss. 268 ; Bowlin v. Franklin County, 152 Miss. 534 , 120 So. 453 .

Opinion of the Court

*538 Griffith, J.,

delivered the opinion of the court.

Appellant was elected as principal teacher of the Green-leaf Consolidated School by the legal trustees of said school for the year 1930-31 and again for the year 1931-32. The superintendent of education took the position that one of the trustees who participated in the election of appellant was not a legal member and appointed another person as a trustee, and the board of trustees as thus constituted elected another person to the position of principal. The superintendent contracted with the last-mentioned person and he filled the position and received the compensation therefor throughout both said years.

In Sowell v. Greer, 158 Miss. 315, 130 So. 482, this court held that the first board of trustees was the legal board. The consequence of this decision is that appellant was the duly elected principal of said school for the two years *539 mentioned. After the expiration of the two years and on February 1, 1933, appellant filed a petition for mandamus against the superintendent to compel her to issue to him pay certificates for the said two years. The superintendent demurred to the petition, and took the points by demurrer that appellant had no contract with the superintendent to teach the school, had not taught a single day of either of the terms aforesaid, had done none of the several other things required of a principal teacher before being entitled to a pay certificate, that therefore a pay certificate could not legally issue under the various applicable statutes, and that the superintendent could not be compelled by mandamus to do what, without the mandamus, she would violate the law to do. The demurrer was sustained and the petition dismissed.

It is an essential prerequisite to the issuance of a teacher’s pay certificate that the teacher in a consolidated school shall have a legal contract with the superintendent of education. Sections 6570, 6610', 6611, Code 1930. Section 6610 expressly provides that “it shall be unlawful to issue a certificate for services rendered before the contract is made and signed,” and note also the implied requirement that the superintendent’s certificate can be issued only for services rendered. A) teacher entitled to such a contract may compel it by mandamus if the action therefor is taken before the school term has expired. But appellant did not do this and did not teach. Certainly there cannot be compelled by mandamus the making of a contract for the doing of a thing which has become wholly impossible to perform by reason of the complete elapse, when the petition is filed, of the time within which performance is to be accomplished. It is true appellant alleges that the absence of a contract was by the sole fault of appellee, the superintendent, which fault he alleges was the product of arbitrary, willfully unlawful, and purely personal or political motives of the superintendent. Nevertheless, so far as the public funds are concerned, he had no completed contract; and if the ab *540 sence thereof was because of the willfully unlawful actions of the superintendent, acting in bad faith as alleged, and this allegation can be proved, the liability, if any, and as to which we do not decide, is one against the superintendent and her bond, or against the person who unlawfully usurped the place of principal teacher and received the pay therefor, or against both, not against the public and its funds, which can be made liable only in the manner expressly provided by law, and by entire compliance with those provisions.

Affirmed.

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