Brown v. Owen

• Citation: 23 So. 35,75 Miss. 319
• Court: United States State Supreme Court of Mississippi
• Decision Date: 07 February 1898
• Parties: S. S. BROWN v. T. S. OWEN, COUNTY SUPERINTENDENT or EDUCATION

23 So. 35

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 in schools "--shows the intent of the legislature to confine the section to disputes in schools. It is plainly to be seen that the legislature never meant for the superintendent to settle "all controversies arising under the school law."

Moore & Clark, for appellee.

The demurrer was properly sustained by the lower court. The statute, § 2846, annotated code, provides expressly that an action of madamus lies only in those cases where there is no plain, adequate, and speedy remedy in the ordinary course of law, and for the purpose of requiring the performance of an act which the law specially enjoins as a duty resulting from an office. The record in this court does not present such a case as entitled the petitioner to this remedy. Chapter 119 of the annotated code provides a system of law for the regulation and management of the public school interests of the state which is unique in itself, and which the legislature intended should cover all matters pertaining to the conduct and control of the public school interests of the state. In support of this statement, we simply call the court's attention to the first section of the school law, § 3962: "There shall be maintained a uniform system of free public schools for all of the children between the ages of five and twenty-one years;" and section 201 of the constitution further provides and declares that a system of free public schools shall be uniform throughout the state, and the whole public school interest of the state are, by article 8 of the constitution, provided for and required to be fully carried out by the legislature. The general supervision of schools and the educational interests of the state are, by the constitution itself, vested in the functionaries of the public schools, as provided by the constitution and the laws of the state.

In looking more closely into the details of the suit, we find that the code provides, in § 3965, that there shall be a board of education, who shall decide all appeals from decisions of the county superintendent, all matters relating to appeals to be prosecuted in writing, and the decisions of the board to be absolutely final. It will thus be seen that in the very inception of the system, it was anticipated that disputes might arise over the enforcement of the school laws, that parties would complain that their rights had been infringed upon, and dissatisfaction might arise over the action of some one or some officer, and, recognizing the fact that no one officer should be made the sole and absolute judge in all cases, a regular court of appeals, for the decision of all matters arising under the school law, is provided for in the state board of education. So, we see, in § 3985, that express provision is made that in all controversies arising under the school law, the opinion and advice of the county superintendent shall first be sought, from whose decision an appeal may be taken to the state board of education, upon a written statement of the facts, certified by the county superintendent or by the secretary of the trustees. From this it will be seen at once that a remedy was afforded to the petitioner in this case, by an appeal from the action of the county superintendent to the state board of...