State Ex Rel. Cowan v. Morgan

^* Corpus Juris-Cyc. References; Mandamus, 38 C.J., p. 734, n. 71, New; Schools and School Districts, 35 Cyc., pp. 857, n. 35; 858, n. 40; 867, n. 32, 33. A petition was filed in the circuit court of Jackson county seeking the issuance of a writ of mandamus to compel the county superintendent of education to employ and contract with a teacher for the Steede public school for the scholastic year 1925-26. The petition averred that the Steede public school district had been lawfully established, and had been maintained for many years, and the orders of the school board defining the boundaries of the district were attached as exhibits thereto. The petition further alleged that the Steede school is located in a sparsely settled portion of the county where it is not practicable for the children within it to attend any other school, the nearest other school being the Vancleave school, which is from eight to ten miles distant; that there are within said Steede school district twenty-four or more educable children who will be deprived of the privilege of attending any public school unless said Steede school is maintained. The petition further averred that the trustees of said Steede school, within the time required by law, duly selected a competent and qualified teacher who held a valid license to teach in the public schools of the county; that they reported this selection of a teacher to the superintendent and recommended her for employment for the scholastic term of 1925-26, but that the superintendent, without lawful excuse, refused to contract with and employ such teacher, or any other teacher for said school. The petition further alleged that the superintendent has unlawfully refused to contract with and employ a teacher for said Steede public school; that he has announced a purpose of compelling the patrons thereof to send their children to the Vancleave public school, which cannot lawfully be done without the written consent of the trustees of said Steede school and Vancleave school, and without a petition signed by a majority of the qualified electors of the Steede school district asking that said children be transported to the Vancleave school; that said written consent of the trustees of the Steede school has not been secured, and no petition has been signed by the qualified electors of said district; that the defendant is trying to evade his duty to contract with a teacher for the Steede school by providing, at the expense of the school fund of the county, the means of transportation of the children of the Steede school to and from the Vancleave public school, but that this proposed transportation of said children is impracticable and would impose an undue hardship on said children for the reasons: First, that there is no authority of law for the transportation of the children of the said Steede school district to and from said Vancleave school at the expense of the public school fund; and, second, even if said arrangement to so transport said children could lawfully be made, it would be impracticable for the reason that the distance is too great, and said children, or many of them, do not live on or near any public highway or road over which they could be transported, and consequently such an arrangement would be of no benefit to many of said children, and would amount to a denial of any opportunity for them to attend a public school. The prayer of the petition is for the issuance of a writ of mandamus commanding the defendant to forthwith employ and contract with the teacher selected by the board of trustees of the Steede school, or if for any lawful reason the defendant may fail or refuse to contract with the teacher so elected, that he be commanded to forthwith employ and contract with some other lawfully qualified and licensed teacher to teach the said Steede school. Upon the final hearing the court below dismissed the petition, and from this order this appeal was prosecuted.

The testimony offered at the trial was not noted by a stenographer, but the substance thereof is preserved in a bill of exceptions approved and signed by the trial judge, and from this bill of exceptions it appears that the Jackson county school board met in regular session on the 6th day of June, 1925, and adopted and entered on the minutes of said board the following order:

"The following schools were ordered discontinued because there were less than forty-five children therein respectively, as required by law: Americus, Robinson, Lilly Orchard, Bonnie, Dead Lake, Steede, with recommendation that they be transported to larger schools."

On the 14th day of September, 1925, the defendant, the county superintendent of education, changed the order appearing on the minutes of the school board so as to cause it to read as follows:

"The following school districts were ordered abolished on motion duly seconded and passed, because there were less than forty-five children therein, respectively: Americus, Robinson, Lilly Orchard, Bonnie, Dead Lake, Steede."

The order passed by the county school board did not attempt to abolish the Steede school district, but simply ordered that the school in that district be discontinued. The unauthorized act of the defendant in changing the order was a mere spoliation, and could not have the effect of changing the order from one attempting to discontinue this school to one abolishing the district. The county school board has not attempted to abolish this school district, and the county superintendent of education has no authority to do so. The question then recurs as to whether or not a county school board may discontinue the school in a regularly established and existing district.

Section 205 of the Constitution of 1890 provides that "a public school shall be maintained in each school district in the county at least four months during each scholastic year," while section 91 of chapter 283, Laws of 1924, requires that the schools be kept in continuous session four months, and as much longer as the school fund of the scholastic year will maintain them. Section 39 of said chapter 283, Laws of 1924, also requires that at least one public school shall be maintained in each school district, but authorizes the superintendent to discontinue any school when the average attendance shall be less than five for any month. Under this constitutional mandate and the various statutes herein referred to, it is clear that the county school board cannot discontinue all schools in an established and existing district. Neither does the fact that there were less than forty-five educable children in the Steede school district authorize the school board to discontinue the school in that district. While it is true that section 39 of chapter 283, Laws of 1924, provides that a regular school district shall not be established which contains less than forty-five educable children of the race for which the district is established, "except where too great distance or impassable obstructions would debar children from school privileges, in which cases the board may, in its discretion, establish a regular district containing not less than fifteen educable children," the admissions of the pleadings in the case at bar bring the Steede school district within the exception. Children living eight or ten miles from any public school, and not on any road over which they could be transported at public expense, would be very effectually deprived of public school privileges, and the school board was without authority to discontinue the school so long as the district was in existence and the children residing therein were not furnished other available public school privileges.

Section 38 of chapter 283, Laws of 1924, provides that the county superintendent shall be president of the school board, and that he shall convene the board annually not later than June 15th, to define the boundaries of the school districts of the county outside of the separate school districts, or to make alterations therein, and to designate the location of the schoolhouse in each district if not already located, while section 39 of said chapter 283 provides that separate districts shall be made for the schools of the white and colored races, and the districts for each race shall embrace the whole territory of the county outside the separate school districts.

Conceding that the authority conferred on the school board to define the boundaries of the school districts, and to make alterations therein, by necessary implication confers the authority to abolish districts by so altering the boundaries as to combine two or more districts, still the boundaries of the districts of the county cannot be so defined or altered as to leave any part of the territory of a county outside of a school district, and in defining the boundaries, the districts must be arranged with due regard to impassable obstructions which would debar children from school privileges, and must be so arranged as to place all children within a reasonable distance of the schoolhouse, as required by section 39 of chapter 283 of the Laws of 1924.

That mandamus is a proper remedy to require a superintendent of education to contract with a teacher who possesses all the necessary qualifications, and who has been regularly and legally selected by the trustees of the school district, as the teacher of a public school for the scholastic year then beginning, is established by the cases of Brown v. Owen, 75 Miss. 319, 23 So. 35, and Whitman v. Owen, 76 Miss. 783, 25 So. 669. The fact that the board of trustees of the Steede public school, at the time and in the manner required by law, selected a teacher for said school for the scholastic year of 1925-26, who possessed the necessary qualifications, and that the superintendent of education was properly notified of the selection, is not controverted in this record, and we think this teacher was entitled to a contract to teach said school. The judgment of the court below will therefore be reversed and judgment entered here directing the issuance of the writ of mandamus in accordance with the prayer of the petition.

Reversed and judgment here.