Donald v. Stauffer

^* Headnotes 1. Schools and School Districts, 35 Cyc., pp. 1050, 1077; On right of taxpayer to enjoin removal of teacher, see note in 51 L.R.A. (N.S.) 336. 24 R.C.L., p. 619; 2. Schools and School Districts, 35 Cyc., p. 886. Appellants, G.L. Donald and others, taxpayers of the Tutwiler separate school district, filed their bill in the chancery court of the second district of Tallahatchie county against appellees J.F. Stauffer, H. Browning, and J.W. Gibbens, trustees of the municipal school of said district, by which appellant sought to enjoin appellees from discharging A.C. Campbell who had theretofore been employed by appellees as principal of said school for the scholastic year 1925-1926, and from employing another person as such superintendent for the period mentioned in the place of said Campbell. A temporary injunction was issued which was dissolved by decree of the trial court on demurrer to the bill and motion to dissolve, the decree dismissing the bill and granting an appeal to settle the principles of the cause.

The bill makes substantially the following case:

A.C. Campbell was by appellees, as trustees of the Tutwiler separate school, employed to "teach and superintend" said school for the nine months' session of 1925-1926, and in pursuance of such employment, appellees, as such trustees, entered into a valid contract with said Campbell covering his duties and compensation for his services as such teacher and superintendent, and afterwards, without any authority of law, and without any cause, no charges having been preferred against him, appellees discharged said Campbell, or attempted to discharge him, by an order entered on their minutes to that effect, and undertook to elect and contract with another to fill the vacancy made by his removal in that manner. Campbell was a duly licensed teacher, and otherwise capable and qualified in every respect for the position to which he had been elected, and by reason of the action of appellees as such trustees the taxpayers of the school district were about to be subjected to the levy of sufficient tax to pay the salaries of two superintendents instead of one, and therefore appellants as taxpayers of said district were so interested that they were entitled to enjoin appellees from carrying out their said purpose.

Campbell was not made a party to the cause either as complainant or defendant. The parties are the trustees of the Tutwiler separate school district, defendants in the court below and appellees here, and a large number of the taxpayers of the school district who were complainants in the court below and appellants here. Therefore Campbell's interest in the subject-matter of the litigation is entirely eliminated, except in so far as it may affect the rights of the parties to this cause.

Appellants' position is that, as taxpayers of the school district, they had the right to resort to injunction to prevent appellees, as trustees of the district, from violating their contract with Campbell, because it might entail an additional tax burden on the taxpayers of the district. Appellees' position is that, even though it be true that in discharging Campbell and employing another in his place they violated their contract, which might result in additional burden on the taxpayers, nevertheless such alleged illegal acts cannot be controlled by injunctive proceedings; that in the employment and discharge of a superintendent of the school, although they may have acted illegally, still they were acting within the scope of their duties as trustees, within which their judgment and discretion cannot be controlled by injunction. American Oil Co. v.Interstate Wholesale Grocers (Miss.), 104 So. 70, although not directly in point, has, in our judgment, material bearing on the question. The board of supervisors of Marion county leased a part of the courthouse square. A taxpayer of the county owning nearby property sought to have the lease canceled on the ground that it was entered into by the county in violation of law. The complainant was a taxpayer, and alleged that he would be damaged financially by the carrying out of the lease. The lessee and the county were made parties defendant. The court held that a taxpayer could not maintain a suit on behalf of the taxpayers of the county without specific statutory authority authorizing such an action. The court said in that case, among other things, that it would be manifestly confusing to the public business and troublesome to the officers charged with the administration of public affairs "if any citizen of the county were permitted to challenge the legality of the action of the board of supervisors in making contracts on behalf of the county."

There is no claim on the part of appellants to any statutory authority to maintain their bill. The acts of appellees sought to be enjoined were not ultra vires, for they were acting in reference to a matter about which they were given authority by statute to act. They were therefore acting within the scope of their authority, although their action may have been illegal. As a taxpayer and patron, all that one has a right to require is that the public school be opened under a competent superintendent and teachers, as provided by law, and that his children be allowed to attend the school and be afforded equal educational facilities with other children in attendance. He has no authority by law to compel the employment or retention of a particular superintendent or teacher. If such claims of taxpayers and patrons of the public schools were recognized, the conduct of such schools would be rendered impracticable. The employment of superintendents and teachers for public schools is a duty imposed by law on the trustees of said schools, and the discretion of such trustees as to whom they will employ cannot be controlled by injunction at the instance of taxpayers or patrons. Such questions are public, not private. If evils exist through the action of the trustees in the performance of their duties, the remedy is the selection of others in their stead. Lewellen v.Smith, 49 Neb. 755, 69 N.W. 114; State ex rel. Sittler v.Board of Education, 18 N.M. 183, 135 P. 96, 49 L.R.A. (N.S.) 62; Board of Education v. Reed, 100 Wis. 455, 76 N.W. 351.

The trial court refused appellants' application to amend their bill so as to allege that appellees were not in truth and in fact trustees of the Tutwiler separate school district. Under the allegations of appellants' bill, however, appellants were in charge of the offices as such trustees, and were acting as such. The amendment sought to be made, therefore, in our judgment, was immaterial. Although school trustees may have been illegally elected to the offices which they hold, if they are in charge of such offices and performing the functions thereof, they thereby have color of right to perform their official duties and their acts are legal. Whitman v. Owen,County Superintendent, 76 Miss. 783, 25 So. 669.

Affirmed.