Campbell v. Warwick

• Decision Date: 22 March 1926
• Docket Number: 25434
• Citation: 107 So. 657,142 Miss. 510
• Court: Mississippi Supreme Court
• Parties: CAMPBELL v. WARWICK. [*]

107 So. 657

142 Miss. 510

CAMPBELL v. WARWICK. ^[*]

No. 25434

Supreme Court of Mississippi

March 22, 1926

Division B

Suggestion of Error Overruled April 19, 1926.

APPEAL from chancery court of Tallahatchie county, Second district HON. C. L. LOMAX, Chancellor.

Suit by A. C. Campbell against J. G. Warwick for an injunction. From a judgment sustaining a demurrer to the complaint, and dismissing it, the complaint appeals, but without supersedeas. Judgment reversed, temporary injunction reinstated, and cause remanded.

Judgment reversed, and cause remanded.

Cutrer & Smith and Hays, Stingily & Whitten, for appellant.

I. The election of Campbell was not void, for it was authorized by statute. Under subsections 8, 9 and 10 of section 126 chapter 283, Laws of 1924, the board of trustees of the school district had express authority to make and enter into the contract. Gates v. Smith, 10 L. R. A. (N. S.) 186 (Ark.); Yerger v. State, 91 Miss. 802, 45 So. 849; Moon v. Schools, 89 N.E. 153.

II. Campbell had no complete and adequate remedy at law. It is true that he might sue the district for his salary, if our court had not held that school districts could not be sued; but our court has so plainly, certainly, indisputably stated that he has additional rights, rights which cannot be compensated for in damages, that it is mere child's play to argue this question. Brown v. Owen, 75 Miss. 319; Whitman v. Owen, 76 Miss. 783.

If he was entitled to a mandamus to require the trustees to execute the contract, at that stage of the proceeding when he was entitled to a contract; after that stage is passed and he is entitled to the enjoyment of this higher right which cannot be compensated for in damages, he is entitled to the aid of the court to secure to him the enjoyment of this right. At this stage it could be secured only through a writ of injunction. The principles of law which apply to the two writs are precisely the same.

F. H. Montgomery, for appellee.

I. The bill does not allege any facts which would warrant the interposition of a court of equity. Complainant does not charge defendant with any overt act. The bill does not allege that the defendant had committed, or was threatening to commit, any trespass. The bill does not allege that the defendant had entered upon, or had undertaken to enter upon, the discharge of his duties as superintendent of the public schools of the Tutwiler Separate School District by virtue of his election as such superintendent, or his pretended election--to state the case more strongly for the complainant.

The bill might be construed as charging the board of trustees with the commission of a wrong against the complainant in discharging him, but nowhere charges the defendant with the commission of any trespass or wrong against the complainant. Such a pleading is insufficient even to require that a defendant make answer thereto. Where nothing is charged as a fact, there is nothing to deny or explain. Horton v. Lincoln County, 116 Miss. 813; State v. Cresswell, 117 Miss. 795; Mitchell v. So. Ry. Co., 77 Miss. 917; Jones v. Rogers, 85 Miss. 802; State v. Henry, 87 Miss. 125; Metcalf v. Merchants Bank, 89 Miss. 649; Merchants, etc., Bank v. Bank of Winona, 106 Miss. 471, 14 R. C. L. 332, sec. 33.

II. Courts will not interfere with the right of citizens to enter into contracts pertaining to any lawful business. The only thing which the defendant has done is to enter into a contract with the board of trustees to fill the position which the complainant says he had formerly been elected to fill by the board of trustees. It is immaterial to the consideration of this case whether the action of the new board of trustees in discharging the complainant after he had been elected as superintendent was lawful or unlawful. It is not alleged that the defendant conspired in any way to procure the discharge of Campbell as superintendent of the schools. It is not alleged that the defendant was, in any sense, remotely responsible for the breach existing between the complainant and the new board, which resulted in his dismissal by the board. Globe & Rutgers Fire Ins. Co. v. Firemen's Co., 97 Miss. 148; Parker Paint Co. v. Local Union, 16 A. L. R. 22.

But it is not contended in this case that the defendant was a party to any action which resulted in the discharge of the complainant by the board of trustees of the school. The most that can be said, after we draw upon our imagination, is that the defendant accepted the position which the complainant at some previous time had been elected to fill, but which had been made vacant on account of the action of the board of trustees in discharging the complainant from the said position. Although there was a vacancy in the office of superintendent due to the dismissal of the complainant by the board of trustees, complainant seeks to prohibit the defendant from entering into contractual relations with the board to fill this vacancy. It is immaterial whether the board of trustees was right or wrong in discharging Campbell, the complainant. The fact remains that they discharged him, and that there was a vacancy in the office at the time they undertook to employ the defendant. To deprive the defendant of the right to enter into contractual relations with the board of trustees to occupy the vacancy caused by the discharge of the complainant would be a plain violation of the rights assured him under the fourteenth amendment of the federal constitution and section 14 of article 3 of the state constitution.

The defendant is a school-teacher and the board of trustees of the Tutwiler Separate School District is the governing authority of the public schools of the school district. As such governing officers they are vested with a broad discretion in respect to the selection of a superintendent for their schools. Lander v. Tolbert, 121 Miss. 592; University v. Deister, 115 Miss. 469.

This case, therefore, presents a plain attempt upon the part of the complainant to restrain the defendant in the exercise of the fundamental right assured to him, both by the federal and state constitutions, to contract in any manner he may see fit and pertaining to any lawful business. Jones v. Miss. Farms Co., 116 Miss. 295; Cheney v. Lirry (U. S.), 33 L.Ed. 818; Brennan v. United Hatters, 118 A. S. R. 727; Massie v. Kessna, 130 A. S. R. 234; Wilby v. State, 93 Miss. 767; Adkins v. Children's Hospital, 24 A. L. R. 1238. The case at bar is an echo of J. L. Donald et al. v. J. F. Stauffer et al., 106 So. 357.

The case at bar is an indirect method on the part of the complainant to compel the board of trustees, by writ of injunction, to retain him in its employ. If the complainant can, by suing out writs of injunction, prohibit any other person from contracting with the board of trustees to fill the vacancy caused by his discharge, he can thereby indirectly coerce the board of trustees into retaining him as its superintendent; notwithstanding the fact that the board had, for reasons sufficient to it, discharged him.

The liberty to hire presupposes the right to dismiss those who are hired. The right to dismiss is absolute and is guaranteed by the constitution. Any other construction of the constitution would nullify our boasted guarantee of liberty and pursuit of happiness. If the board of trustees has the power to dismiss one who had been employed by it, it certainly has the right to fill the vacancy caused by such dismissal. Donald v. Stauffer, supra, 24 R. C. L. 618; Marion v. Board of Ed., 32 P. 643; Freeman v. Bourn, 49 N.E. 435, 39 L. R. A. 510; Gilliam v. Board, 58 N.W. 1040, 24 L. R. A. 336.

If it be conceded that complainant had been lawfully employed by the board of trustees and had been unlawfully discharged still he has no remedy against a third person, who did not participate either in his employment or his discharge from accepting the employment formerly held by him. The act of the defendant in accepting employment from the board of trustees to fill the vacancy created by the discharge of the complainant was both a lawful and a valuable right....