Lander v. Tolbert ( 1920 )

Sykes, J.,

delivered the opinion of the court.

Appellee, C. R. Tolbert, filed a petition for mandamus in the circuit court of Hancock county against Sylvan J. Lander. The petition in substance alleges that duriug the month of May, 1919, the trustees of the separate school district embraced in the municipality of Bay St. Louis at a regular meeting by proper resolution elected the petitioner, Tolbert, superintendent of the public schools of that separate school district to serve for a period of one year, beginning the 1st day of June, 1919. The salary of the petitioner as superintendent was fixed by the trustees at one thousand, eight-hundred dollars per annum, payable in monthly installments of one hundred and fifty dollars at the expiration of each month of service during the year. The petitioner properly accepted the office of the superintendent and immediately entered upon his duties as such and fulfilled them, especially during the months of June and July. On July 9, 1919, the school trustees in regular session approved and allowed the petitioner’s salary for June, 1919, and issued a formal written order upon the defendant, who was the secretary and clerk of the municipality of Bay St. Louis, to draw and deliver to the petitioner the municipal pay warrant for the amount of one hundred and fifty dollars. The order was duly signed by the trustees and referred to the laws governing the election and character of the employment of the petitioner. . There was sufficient available money in the school fund to be applied to the payment of the warrant thus directed by the trustees to be issued by defendant. The defendant as secretary and clerk of the municipality, however, declined to comply with or to recognize this order of the trustees, and he still so declines. Practically the same proceedings were had and a written order issued by the trustees for the salary of petitioner for the month of July, and the clerk declined to issue the warrant in accordance with the order. The school trustees were notified .of the refusal of the municipal clerk to issue these two warrants, and on August 19th passed an order reciting the election of petitioner "as superintendent of the public schools of this district for the salary above mentioned payable monthly, that the petitioner had served and earned and was entitled to receive from the treasurer of the city the warrants for his salary for the months of June and July at one hundred and fifty dollars a month, and it was therefore ordered by the board of trustees that the secretary and clerk of the city be and he was thereby ordered and directed to issue the municipal warrants of the city for the two months services above enumerated. A certified copy of this order was transmitted to the defendant by petitioner, who in a letter again demanded the issuance of the two warrants for his salary for June and July. The clerk declined to issue these warrants, whereupon this petition for the writ of mandamus ivas filed by Tolbert, to which petition there was a demurrer interposed by the defendant. The grounds of the demurrer are as follows:

“(1) Because there is a plain, adequate and speedy-remedy in the ordinary course of law.

“ (2) Because said contract as alleged is void, the same being for a longer period than the scholastic year.

“(3) Because it is not alleged or shown that the plaintiff or petitioner presented or procured a pay certificate from the superintendent of education as provided by law.

“(4) Because it is not shown or alleged that the petitioner taught or that the school was in session during the period for which petitioner claims salary.

“(5) Because it is not alleged or shown that the months for which petitioner is claiming salary is within the scholastic year.

“(6) Because the defendant is without authority in law to issue warrants without the- presentation of a pay certificate from the superintendent of education or any order from the board of mayor and aldermen.

“(7) For other reasons to be submitted at the hearing.”

This demurrer was overruled, and the defendant declined to plead further, whereupon a final judgment was entered in favor of petitioner.

It is unnecessary to consider in detail the various grounds of the demurrer, as these grounds may he considered under three general heads.

First. Is the superintendent of public schools of a separate municipal school district under the absolute control and management of the trustees of this district? Second. If so, are the trustees empowered to have their orders obeyed with reference to the issuance of warrants for the salary of this superintendent by the municipal clerk or secretary without an order from the county superintendent of eduacation? Third. Was mandamus the proper remedy for petitioner in this case?

Taking these questions up in the above order, section 4525, Code of 1906, section 7345, Hemingway’s Code, prescribes the powers and duties of the trustees of separate school districts.- Under section J, these trustees are empowered to elect a superintendent if one be required, and a principal for each of the schools, and prescribe their powers and duties. Under this subsection, the trustees have the power to elect a superintendent of all of the schools within this separate school district, and also to elect a principal for each of the separate schools, and prescribe the powers and duties of both the superintendent and the principal. Under subsection K, they have the power to' elect the teachers, fix the salaries, terms of office, contract with them, “but they cannot contract with a principal or teacher the county superintendent, the superintendent of all the schools is not required to have a license. In other words, under this section the principal as- well as the teachers must have-a license to teach school, but no who does not hold a license from the county superintendent.” It will be noted here that, while the principal and teachers of the schools must have a license from such license is required of the superintendent. The hoard of trustees have the right to prescribe the duties to be performed by the superintendent. It is a matter of common knowledge that, in a number of separate municipal school districts composed of the larger cities and towns of the state, there are a number of separate schools, and that in each one of these schools there is a principal, while for all of the schools there is one superintendent. This superintendent is required to supervise and look after all of the affairs of these separate schools in his district, under the instructions of the board of trustees. In other words, the superintendent is the executive officer who actively looks after the management of the schools under instructions of the trustees. It was not required that he be a school teacher or have a license to teach. His qualities consist rather in his executive ability instead of in his book learning. The legislature recognized this fact when they provided that the principal and teachers must have a license to teach, but omitted this provision from the subsection referring to the superintendent of the schools. Without referring in detail to the various school laws of the state, from a careful examination of them it is manifest that there are certain differences in the control and management of the municipal separate schools and the rural schools; that the school trustees in the separate municipal school districts have greater powers than those in the rural schools; that the county superintendent of education has very little voice in the control and management of the schools in the separate school district; he has no supervision or control whatever over the superintendent of these schools. It is inescapable from an examination of these laws that the trustees have the absolute control and management of the superintendent elected by them and have the right to proscribe his duties, fix his term of office, the amount of his salary, and in what manner it shall be paid.

Second. There is nothing in the various school laws requiring the county superintendent of education to issue any order to the municipal clerk for the issuance of any warrants for the payment of any bills or accounts of a separate municipal school disetrict, except those relating to the salaries of the teachers and principal of a school. Under section 4525, Code of 1906, section 7345, Hemingway’s Code, these school trustees are given the control and management of the school jjroperty and are empowered to employ a janitor, also a librarian, to furnish blackboards and other necessary furniture for the use of the schools. Section 7348, Hemingway’s Code, chapter 186, Laws of 1916, expressly provides that these trustees are the custodians of the school property and shall have charge of the erection, repairing, and equipping of buildings, and are authorized to write orders to the clerk of the municipality or to the county superintendent to issue warrants or pay certificates on any available school funds of such school district. The only employees of a separate school district that are in anywise brought under the control of supervision of the county superintendent of education are teachers and principals. As to them tho county superintendent may issue his order upon the municipal clerk for the issuance of their warrants; but as to the superintendent, librarian, janitor, • or other employees of the district his warrant must be issued on the order of the trustees. In other words, the superintendent is not a teacher; he is not compelled to hold a teacher’s license; he is responsible alone to the trustees, and not to the county superintendent, for the performance of his duties. There is no reason, and the law does not so provide, that his salary shall not be paid upon written order of the school trustees. From the powers and duties of these trustees above referred to we think it clear that it was the duty of the municipal clerk to issue these warrants in accordance with the orders of the trustees.

Third. Mandamus was the proper remedy. The clerk is a mere ministerial officer whose duty it was in this case to obey the order of the trustees. Neither the board of aldermen nor the county superintendent of education had the power or authority to give this order. There was no plain and adequate remedy at law. A suit against the municipality was no such remedy. The municipality had not declined to pay it; in fact, through its trustees as a separate school district, it had ordered the clerk to issue the warrant. A suit against the municipality would in reality in this instance have been a suit against this separate school district, which through its constituted authorities had ordered the issuance of the warrant. Herbon Bank v. Lawrence County, 109 Miss. 397, 69 So. 209; Moreau v. Grandich, 114 Miss. 560, 75 So. 434.

The judgment of the lower court is affirmed.

Affirmed.