Gibson v. Mabry , 145 Ala. 112 ( 1905 )

SIMPSON, J.

This was a. bill filed by G. A. Gibson, J. E. Buclcalew, and J. B. Geiger, who allege that they are the district trustees for school district No. 43, in Marshall county, Ala., and are also resident citizens of said school district, taxpayers therein, and patrons of the public schools in said district, having children therein within the school age, against Jay Miabrey, as county superintendent of education and as chief executive officer of the county hoard of education of said county, and Cicero P. Bales, J. M. McCainey, Virgil Dickson, and F. E. Oliver, the individual numbers composing said board, and Walter Amos. Idle .redistricting board, provided for by Acts 1903, p. 290, § 2, divided said county into school districts, and in the district in question located one schoolhouse. The district trustees, provided for by section 6 (page 291) of said act, not bring satisfied with the arrangement of having only one school in said district, entered into, a contract with a teacher to teach a school at another place in said district, which contract was disapproved by the county board, provided for by section 10 (page 292) of said act. Subsequently the county board .entered into a contract with the defendant Walter Amos to teach at the place fixed by said redistricting board for the schoolhouse in said district.

The bill seeks to enjoin the county superintendent of education from paying any of the funds belonging to the public school fund of said district to said Walter Amos, or any other person, unless said person has been employed by them to teach a public school, and such contract has been approved by said county board; also prays the court to “decree that said county board of education has no right to prohibit the employment of more than one teacher in said school district, or to prohibit the employment of a teacher o.r teachers to teach more than one public school in said district, and that they be required and commanded to approve said employment of a teacher by complainants, as district trustee.?, where their approval has been withheld only on the ground that the ¡school was not contracted to be1 taught at the place designated by the said redistrictiñg board provided for by said section 2 of said act”; also that they he enjoined in the future from employing any such teachers, and from dirteting their payment; also that the county superintendent he enjoined.

The contention of the appellant is that the new law is only an amendment of the old, and (although there was no such officer under the old law as district trastee, and although the township trustees, under the old law, did not have the power to decide the number of schools to be held in a township, hut had to call a meeting of the parents and guardians to attend to that matter, and although, under the old law, the action of said township trustees, in case the parents and guardians failed to act, was subject to an appeal to the county superintendent, code 1896, §§ 3560, 3565) that the district trusties have a right to establish another school in a school district, make & contract with a teacher, and demand that he he paid out of the school funds. /The act of 1903 is clearly a restatement of the entire law on the subject of the redistricting of the public schools, and in regard to the management and control of the same, and was intended to set up a new system, so that whatever power any school officer may have on these subjects must be derived from this act.' The duties of the district trustees are specifically enumerated in sections 7, 8, 0, ancl 10 (pages 291, 292) of said act, and there is no intimation of any power in them to determine Iioav many schools ¡shall be in tire district, and they are authorized to employ teachers, only “subject to the approval of the county hoard.” So that, even after the location, of the school has been fixed, any contract made by them Avith a teacher is merely tentative until it is approved by the county hoard. Where, then, dors rest the power to regulate these matters? Sections 2, 3, 4. and 5 (page 290) provide for the “redistricting hoards” and their duties, and although it .seems' to have been customary for them, to fix the. place for the schools, yet there is no. specific direction for them to locate schools. This, however, is immaterial, as the county board could adopt the location suggested by them or adopt another, as they deem best. Section 11 (page 292) of the act provides that the county board of education “shall ha.ve entire control of the public schools within their respective counties, unless otherwise provided by law. They shall make rules and regulations for the government of the schools, see that the teachers perform their duties, and exercise such powers, consistent with the law, as, in their judgment, will best subserve the cause of education.”

It is very clear tliat the matter of the location of schools in the several districts does not come within the powers conferred on the district trustees; but under the comprehensive powers given to the county board tins power belongs to that board. It is clear, also, that the county board is a deliberative bodv charged with the duty of determining whether the employment by the district trustees of a teacher is such a-*, in the furtherance of the educational interests of the district, should be approved. Consequently their reasons for approving or' disapproving cannot, be inquired into.

The statute makes it the duty of the district trustees to employ teachers, subject to the approval of the county board; but it is tlieir duty to employ the teacher to teach at the place fixed by the county board. It is true that trustees may become obdurate, and, by failure to work in harmony, defeat the object of the law to have a school taught in each district. Yet in the matter of the selection of teach (us the intention of the law-makers in the passage of this act appears to be that it shall require the concurrence of both the district trustees and the county board to the selection and employment of a teacher. It is true that the powers granted to the county board by section 11 are very comprehensive, yet, as the previous section makes it the duty of the district trustees to employ the teachers, we hold that the general powers given to the county hoard do not deprive the district trustees of the right to employ the teacher subject to the approval of the county hoard, nor authorize the county hoard to employ one. It results that the seventh cause of demurrer to the hill should have been overruled, and the first, second, and third canses were properly overruled. The fourth cause should have been overruled, and the fifth and sixth causes were properly sustained, and the eighth should have been overruled. The chancellor erred in sustaining the motion to dismiss the bill.

The decree of the court'in so far as it sustained the demurrer to the bill is affirmed but in so far as it sustained the motion to dismiss the bill the decree is reversed and a decree will be here rendered overruling the motion to dismiss the bill.

Affirmed in part, and reversed in part, and rendered.

McClellan, O. J., and Tvson and Anderson, J.T., concur. —