Alex Loeb, Inc. v. Board of Trustees, Pearl River Junior College

• Decision Date: 07 January 1935
• Docket Number: 31502
• Citation: 158 So. 333,171 Miss. 467
• Court: Mississippi Supreme Court
• Parties: ALEX LOEB, INC., v. BOARD OF TRUSTEES, PEARL RIVER JUNIOR COLLEGE

158 So. 333

171 Miss. 467

ALEX LOEB, INC., v. BOARD OF TRUSTEES, PEARL RIVER JUNIOR COLLEGE

No. 31502

Supreme Court of Mississippi

January 7, 1935

Division A

Suggestion Of Error Overruled February 4, 1935.

APPEAL from the circuit court of Pearl River county HON. HARVEY MCGEHEE, Judge.

Petition for an extraordinary writ of mandamus by Alex Loeb, Inc. against the Board of Trustees, Pearl River Junior College. From a judgment dismissing the cause, petitioner appeals. Affirmed.

Affirmed.

J. C. Floyd, of Meridian, for appellant.

The petition filed in this case clearly shows that the intention was simply to obtain a writ of mandamus directed to the board, requiring it, or the members constituting it, to perform their legal duty and pass upon the claim of this appellant.

Section 2348, Code of 1930.

The law of Mississippi is plainly to the effect that neither a school, nor its board of trustees, are subject to suit.

Nabors v. Holly Bluff, 100 So. 177; Ayers v. Board of Trustees, 134 Miss. 363, 98 So. 847.

Therefore, it is manifest that the appellant here had "no plain, adequate, and speedy remedy in the ordinary course of law" for the enforcement of its claim.

It is plainly the duty of the board of trustees, charged with the operation of the school, to pass upon the claims presented, and either reject or allow them.

Ayers v. Board, 134 Miss. 363, 98 So. 847; Section 6694, Code of 1930.

The remedy of mandamus lies "to require the performance of an official duty that an officer has refused to discharge."

Anderson v. Robins, 137 So. 476, 161 Miss. 604; State ex rel. Baria v. Alexander, Supt. of Education, 130 So. 754.

It shall be the duty of the trustees or other officials in charge of all public schools of the state, elementary and secondary, to make provisions for the establishment and maintenance in their schools of prescribed courses in physical education.

Sections 6841 and 3654, Code of 1930.

Parker & Shivers, of Poplarville, for appellee.

It is so well settled in the state of Mississippi that neither a school nor its board of trustees are subject to suit that counsel for appellant readily concedes that he cannot sue the board of trustees of Pearl River Junior College.

Thompson & Co. v. Lamar County Agriculture High School, 78 So. 547; Nabors v. Holly Bluff, 100 So. 177; Ayers v. Board of Trustees, 134 Miss. 363, 98 So. 847.

If it is proper for the appellant to obtain a writ of mandamus and thereby force the defendants to pay its claim, then it can do indirectly by the mandamus route that which the law says it shall not do directly, since, of course, if its claim is paid it would not become necessary for it to obtain a judgment or to collect a judgment.

Even though petitioner had then a claim which the board of supervisors had to act on under our decisions, their inaction or refusal to act would be and is a refusal, as has been repeatedly held by our court. One that is not necessary to be recorded on the minutes, of course, but nevertheless a refusal of the claim.

Grenada County v. City of Grenada, 150 So. 655.

Dealing further with the authority of the board of trustees of any institution to buy supplies of the character shown by the account in this cause, we submit, in all candor, that if the trustees of this institution could purchase the supplies involved in this litigation, then they may as well purchase overcoats for all pupils, underwear for all pupils, pocket knives, or anything else.

There is no effort made in the petition for this writ to show that even an individual member of the board of trustees made these purchases or that they were made by any one selected to make same.

Northern Drainage District v. Bolivar County, 71 So. 380, 111 Miss. 250; Gilchrist Fordney Co. v. Keys, 74 So. 619, 113 Miss. 742.

OPINION

McGowen, J.

Appellant, Alex Loeb, Inc., filed its petition seeking an extraordinary writ of mandamus against certain named trustees of the Pearl River Junior College.

The declaration, omitting the formal parts, is as follows:

"II. That the petitioner herein, Alex Loeb Inc., is engaged in the business of selling at wholesale and retail, to the general public, the athletic goods and supplies, shoes, clothes, and wearing apparel for men and boys.

"III. That heretofore at the special instance and request of the defendants herein through their dully authorized agent and representative, the petitioner herein sold certain goods, wares, and merchandise to said defendants for use as supplies at the said Pearl River Junior College, the amount now due on said account being four hundred fifty-seven dollars and ninety-six cents, as is particularly shown by the itemized, verified statement hereto attached, marked Exhibit 'A,' and made a part thereof.

"IV. That said merchandise was necessary and proper for use at said school and the payment for which is part of the necessary expense of said school.

"V. That said merchandise was used or is being used by said school.

"VI. That the prices charged by petitioner for said merchandise was usual, proper, and reasonable.

"VII. That although petitioners were entitled to payment for said merchandise immediately after delivery of same, they have never been paid, and said account is still due, outstanding, and unpaid.

"VIII. That although the petitioner has often requested defendants to pay said account, thus far they have wholly failed, refused, and neglected to pay said account, and have wholly failed, refused, and neglected to allow said account and cause pay certificate to issue therefor.

"IX. That although said Board of Trustees, composed of the defendants herein, is required under the law to pass upon, allow, and pay, or cause to be paid, the claim of this petitioner, they have and continue to fail, refuse, and neglect to do so, and petitioner is without a plain, adequate and speedy remedy in the ordinary cause of law, and therefore petitioner is entitled to the writ of mandamus herein prayed for.

"Wherefore premises considered, petitioner prays that proper process issue to the defendants hereinabove named, returnable to June term of this court, and that upon a hearing hereof, this court will, by proper writ of mandamus, require the defendants, composing said board of trustees, to pass upon,...