State ex rel. Gorman v. Offutt

• Citation: 26 S.W.2d 830,223 Mo.App. 1172
• Parties: STATE OF MISSOURI AT THE RELATION AND TO USE OF EDNA GORMAN, APPELLANT, v. ED. C. OFFUTT, SUPERINTENDENT OF PUBLIC SCHOOLS OF AUDRAIN COUNTY, MISSOURI, RESPONDENT. [*]
• Decision Date: 08 April 1930
• Court: Court of Appeal of Missouri (US)

26 S.W.2d 830

223 Mo.App. 1172

STATE OF MISSOURI AT THE RELATION AND TO USE OF EDNA GORMAN, APPELLANT, v. ED. C. OFFUTT, SUPERINTENDENT OF PUBLIC SCHOOLS OF AUDRAIN COUNTY, MISSOURI, RESPONDENT. ^[*]

Court of Appeals of Missouri, St. Louis

April 8, 1930

Appeal from the Circuit Court of Audrain County.--Hon. Emil Roehrig Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

James P. Boyd, W. W. Barnes and Clarence A. Barnes for appellant.

W. W Botts for respondent.

(1) Mandamus will not lie to compel the performance of a judicial or discretionary act. State ex rel. Pickering v. City of Willow Springs, 230 S.W. 352, 208 Mo.App. 1; State ex rel. Law & Credit Co. v. Thomas, 220 S.W. 702, 203 Mo.App. 452; State ex rel. Wolfe v. Missouri Dental Board, 221 S.W. 70, 282 Mo. 292. (2) The act of endorsing a certificate to teach school from another county (superintendent) by the superintendent of public schools of a county is a judicial or discretionary, and not a ministerial act. Sec. 11362, R. S. of Mo. 1919. (3) It is a well-settled rule of construction that statutes shall be construed so as to avoid, if possible, a conflict between the different parts thereof. City of Westport ex rel. Temb v. Jackson, 69 Mo.App 148.

HAID, P. J. Becker and Nipper, JJ., concur.

OPINION

HAID, P. J.

This is an appeal from an order sustaining a demurrer to an amended petition for a writ of mandamus.

The petition in effect alleges that on June 8, 1926, after due examination the relator was granted a second grade teacher's certificate by the county superintendent of public schools of Monroe county, Missouri, in accordance with the provision of sections 11358 et seq., of the Revised Statutes of Missouri, 1919; that on June 2, 1928, in accordance with the provisions of section 11361 of the statutes, the superintendent of public schools of Monroe county issued to the relator a teacher's re-issued second grade certificate certifying to relator's good moral character, the grades attained by her upon examination in the various subjects required by the statute, her teaching ability and management and that she had furnished satisfactory evidence of having completed four years of high school work, etc., which the relator alleges gave her the right and authority to teach in the public schools of Monroe county for a term of two years from that date; that at divers times up to and including the third day of June, 1928, the relator presented said re-issued second grade teacher's certificate to the respondent, superintendent of public schools of Audrain county, Missouri, for his endorsement, and on June 23, 1928, the respondent refused to endorse said certificate as said superintendent of public schools and the relator, through her duly authorized agent and attorney William W. Barnes, made the request of said respondent to endorse said certificate as superintendent of public schools of Audrain county, Missouri, and tendered to him the fee of one dollar and fifty cents prescribed by section 11362, but that the respondent upon such request and tender refused to endorse said certificate or to give any reason for his action for refusing to do so and declined to accept the fee tendered.

The controversy hinges upon the construction to be placed upon the proviso contained in section 11362. That section, after providing that the county superintendent of public schools shall pass upon the moral character and requirements, other than scholastic, as shown by the papers written, of all applicants for certificates to teach in the schools under his jurisdiction, shall grade each applicant who has had four months' experience in teaching on teaching ability and management:

"Provided, that the county superintendent must endorse without examination second grade certificates from other counties in this state on the payment of the fee of one dollar and fifty cents; and such second grade certificate, when thus endorsed by the county superintendent, shall entitle the holder thereof to all the rights and privileges granted under and by a teacher's certificate issued by such superintendent under a regular examination, and shall not be revoked unless specified charges be made and filed with the county superintendent, notice thereof be given and an impartial hearing be had thereof, as is fully provided for in section 11364."

From 1911 up to 1919 the above quoted section was section 10943, of the Revised Statutes of Missouri, 1909, but by the act approved May 24, 1919, said section was repealed and re-adopted. In the amended act the word "may" in the proviso of the former act was changed to "must" and the amended act also contained the provision, as above shown, for the endorsement of such certificates from other counties in this state instead of merely "adjoining counties" and it added the provision that such second grade certificate when so endorsed should entitle the holder to all the rights and privileges granted under and by a certificate issued by the superintendent to such holder under a regular examination.

It is contended by the respondent that there is a direct conflict between the two parts of section 11362 in that the first part thereof provides that the county superintendent of public schools shall pass upon the moral character of all applicants for certificates to teach in schools under his jurisdiction and shall grade each applicant who has had four months' experience in teaching on teaching ability and management and it is argued that it is unreasonable to believe that the Legislature...