23 So. 35 (Miss. 1898), Brown v. Owen

Citation:23 So. 35, 75 Miss. 319
Opinion Judge:TERRAL, J.
Party Name:S. S. BROWN v. T. S. OWEN, COUNTY SUPERINTENDENT or EDUCATION
Attorney:N. B. Scott and O. G. McGuire, for appellant. Moore & Clark, for appellee.
Case Date:February 07, 1898
Court:Supreme Court of Mississippi
 
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Page 35

23 So. 35 (Miss. 1898)

75 Miss. 319

S. S. BROWN

v.

T. S. OWEN, COUNTY SUPERINTENDENT or EDUCATION

Supreme Court of Mississippi

February 7, 1898

December, 1897

FROM the circuit court of Bolivar county HON. F. A. MONTGOMERY, Judge.

The opinion states the case.

Reversed.

N. B. Scott and O. G. McGuire, for appellant.

A teacher's good moral character is presumed when he holds a first-grade license. Proof of such character was required before issuance of license. Code 1892, § 4021.

This is not a suit for damages, but for mandamus; but the court judicially knows that the lowest first-grade salary is $ 25 per month, and the constitutional school term is four months, showing a damage of at least $ 100.

A plain, adequate, and speedy remedy in the ordinary course of law does not mean an appeal to the state board of education. The term "ordinary course of law, " as used in § 2846, code 1892, means our law, derived from the English common law, and not a mere statutory proceeding.

Section 3985, annotated code, is not mandatory as to appeal to state board. The appeal "may be taken." If taken, and decision should be rendered adversely to appellant, he might be absolutely barred from proceeding in any court of law whatever under § 3965, annotated code. If the state board decided in favor of appellant, he would even then be forced to a mandamus proceeding, as there is no provision in law for the enforcement by the state board of its orders. If the appellant must first try the state board, and then mandamus, this would prove the appeal to the state board not to be a plain, adequate, and speedy remedy in the ordinary course of law. Doss v. Wiley, 16 So. 902; Effingham v. Hamilton, 68 Miss. 523.

Section 2846, code, fully authorized this suit. "Any private person who is interested, " may bring suit, and it is not necessary that it should be matter affecting the public interest. The petition does not show that it would do the public any harm. In fact, it appears that it would be beneficial. This cause should be decided in favor of appellant on account of the great public good it would do. The superintendent is not vested with any discretion in this matter. The petition shows that Brown was properly selected as teacher.

Section 3985, annotated code, means all controversies arising under the school law [in schools]--that is, while the schools are being taught--e, g., such controversies as mentioned in § 4005, code, and especially disputes between teachers and pupils.

The heading of the section--to wit: "The same; to settle disputes...

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