Cheney v. Newton , 67 Ga. 477 ( 1881 )

Jackson, Chief Justice.

This suit was brought by the teacher of a school in Greene county against the county school commissioner and his sureties for breach of the official bond of the commissioner in not paying the teacher’s account under the order of the board of education. The account was never audited by the commissioner, no contract was ever made by legal authority with this teacher, but another had been employed that year for that school district and taught in it. At the close of the plaintiff's evidence which showed these facts, the court granted a non-suit, and this is the error assigned here.

Undoubtedly the board of education is a court to determine local questions of this sort, 61 Ga., 413 ; but it is a court of limited jurisdiction, and the proceedings of record must show enough to make the jurisdiction apparent on their face. Before this court — the board of education sitting as such — has jurisdiction to try the right of this teacher to the money sued for, the account sued for must be audited by the county school commissioner. Code, §1263. This not only does not appear on the face of the resolution or judgment of this court of limited jurisdiction, and expressly limited as to this subject matter by the section of the Code above cited, but it does not appear from the evidence introduced on the hearing before the board. On the contrary, it does appear from the uncontradicted evidence of the plaintiff, that the commissioner refused to audit the account. This judgment, therefore,- concluded nobody, the board of education having no jurisdiction to order the account paid until it had been audited according to law.

2. Nobody being concluded by the judgment, the question arises was the judgment right on the facts? Clearly not.

Though licensed, this teacher had. not beea employed, and therefore was not entitled to be paid by the trustees of a fund out of which only those employed could be paid. The court below was therefore right to grant the non-suit.

If this teacher was wrongfully treated by the commissioner in the refusal to audit his account so as to give the board of education jurisdiction, his remedy was by mandamus to compel this ministerial officer to do his duty, if it was his duty to audit it. But if he had pursued that remedy under the facts here, it would have resulted in no benefit to him, because the commissioner was right not to audit the account of a teacher who had not been employed to teach by the proper authorities who controlled this whole business of common schools for the county of Greene.

• The system is a general one, controlled by employment o'f teachers — select teachers — who alone have the right to draw on this fund. Private teachers, however competent and trustworthy, have no right to participate in it unless employed to teach for it. This plaintiff was not so employed, and there is no breach of this bond in the refusal to pay him, because the commissioner did exactly what the law, his master, required him to do when he declined to pay the account.

■ Cited for plaintiff in error, Code, §§1259-1263; 61 Ga., 413.

For defendant: Const., art. 8, sec. 1-3; Code, 1272, 1253, 1257, 1261 ; acts of 1877, p. 118 ; Code, 1271, 1263, 1265, 3594; 9 Ga., 130; 12 Ib., 424; 13 Ib., 68; Code, 1254-5.

Judgment affirmed.