Childrey v. Rady

• Decision Date: 11 May 1883
• Citation: 77 Va. 518
• Parties: CHILDREY AND ALS. v. RADY AND ALS.
• Court: Virginia Supreme Court

77 Va. 518

CHILDREY AND ALS. v. RADY AND ALS.

Supreme Court of Appeals of Virginia.

May 11, 1883

Upon petition for a writ of mandamus filed in April 1883, by John H. Childrey and eight others, appointees of the board of education for the state, as the school trustees for the city of Richmond, against Charles P. Rady and eight others acting school trustees for the said city.

The syllabus indicates and the opinion sufficiently states the facts of the case and the positions taken by the petitioners and by the respondents.

F. S Blair, Attorney-General, for the petitioners.

W. W and B. T. Crump, for the respondents.

OPINION

RICHARDSON J.

The petitioners, John H. Childrey, Rowland Hill, Jefferson Powers, John W. Fisher, Richard Forrester, V. A. Favier, Henry Hudnall, R. A. Paul, and J. V. Reddy, of the city of Richmond, claim that they were, on the 17th day of February, 1883, duly appointed by the board of education for the state of Virginia school trustees for the city of Richmond, and that they therefore constitute properly the board of school trustees for said city. And said petitioners assert that upon their said appointment they respectively took the oath of office required by the constitution and laws of Virginia, and were thus duly qualified and ready to enter upon the discharge of their official duties as such trustees. But they say they are prevented from exercising the functions of their said offices because they find the respondents, Charles P. Rady, Wm. H. Williams, A. W. Weddell, R. G. Cabell, A. R. Courtney, R. W. Powers, M. L. Straus, S. P. Moore, and W. R. Bowie in possession of said positions of school trustees for said city, and performing the duties and exercising the functions thereof, contrary to law and to the exclusion therefrom of said petitioners.

The question now to be determined by this court arises upon the application of said petitioners for a writ of mandamus to compel delivery by the respondents to the petitioners of the said offices, together with all books, records, papers, and other property belonging to the public free schools of the city of Richmond.

The petition of the applicants, together with certain exhibits filed as part thereof, in addition to the circumstances already detailed, shows that at a meeting of the state board of education, composed, as required by the constitution, of the governor, the attorney-general, and the superintendent of public instruction, held at the office of said board on the 3d day of January, 1883, the following order was passed and a copy thereof addressed to the respondents:

" This board being put in possession of the fact that by failure to qualify within the time prescribed by law, and by failure of the city council of Richmond to fill vacancies within the time allowed to them by law, your places doubtless are vacant. You are hereby directed to take no further steps affecting the school system of this city until the state board of education shall have decided the question."

It appears further, that the information upon which the board of education acted, as just stated, was derived from E. M. Garnett, superintendent of schools for the city of Richmond. In a communication from that officer to the attorney-general, dated December 29, 1882, in response, it seems, to a previous letter from the latter to the former, he, among other things, says: " When I was appointed superintendent of schools in this city the school board was composed of the following trustees: First District--Charles P. Rady, Dr. Scott, and A. R. Courtney. Second District--Anthony M. Keiley, Judge B. R. Wellford, and R. W. Powers. Third District--M. L. Straus, Dr. S. P. Moore, and W. C. Knight-- none of whom had ever taken the oath of office. All of them had been elected for months and years before I came into office. In July, 1882, Dr. Scott resigned and Wm. H. Williams was elected in his place."

It further appears, that on the 1st day of March, 1883, by a communication addressed to J. H. Peay, Jr., secretary and supervisor of school property in the city of Richmond, the petitioners gave notice of their appointment and qualification according to law as school trustees for said city, and claimed that they were entitled to exercise all the rights and privileges of such trusteeship, and demanded that all the books, records, papers, and other property belonging to the public free schools in said city be produced and surrendered to them.

To this demand response was made refusing compliance (1), as alleged, for want of official notification of the appointment of petitioners as a board of trustees; and (2) asserting that if so notified he, the said Peay, would still recognize, not the petitioners, but the school board then acting and appointed by the city council, until the question should be settled by a court of competent jurisdiction; and declining to recognize any board of trustees other than the board that appointed him. Thereupon the rule nisi was upon application of the petitioners awarded, to which the respondents make return and say:

I. That they and each of them constitute, and are, and were at the date of the alleged appointment of said petitioners, the legal and rightful school trustees, holding their places under and by virtue of appointments duly made by the council of the city of Richmond, according to law; which appointments so made they say were duly accepted by them, and each of them, who duly qualified thereto, as, they say, in their said return will appear. They deny the authority of the board of education under whose appointment the petitioners claim. They deny that there was or has been any such vacancy in the said school board of trustees as authorized said board to supply the same; and they say if such vacancies did exist as are claimed when said board appointed, the same could only be filled by the city council, and that it was the duty of the board of education to inform the city council of such vacancies in order that said council might fill the same.

II. The respondents deny that an oath of office was peremptorily required by law of them as trustees as a condition precedent to the discharge of their duties, and that a failure to take such oath caused a vacancy which the board of education could fill.

III. In the third place the respondents say they were, and each of them was, duly appointed by the said city council, and that they accepted and qualified under said appointment. That the city of Richmond is and has been by law and by ordinance, regularly since May 15, 1871, proceeding in conformity with the law of the state governing and directing the school system established for cities March 31st, 1871. That when the said law of 1871 took effect the said city had a school system and a school board of its own; that the members of said school board were by the city council, as the statute of the state authorized, appointed to the new school board of trustees and assigned to the legal districts into which the city had been divided, and for specific terms of office, as prescribed by law, in pursuance of the statute of 1871; and they proceeded without further or other qualification to act as school trustees under the state system of education, so that in fact the state, as by the statute provided, did adopt the school board of said city as the school trustees of the state, and exacted of them no further or other qualification than that which they possessed as city appointees.

The case has thus been fully stated that there may be no misapprehension of the facts or principles which control the court in the conclusion arrived at. It is true the respondents, under the third and last head above referred to, give some details touching the manner and time at which certain persons of their number were appointed and the time and manner of their qualification, and these may hereinafter be referred to; but, for all practical purposes, what has been stated amounts to the contention in full, as well on the part of the petitioners as the respondents.

To the return of the respondents the petitioners demurred, and the respondents joining therein, the case was argued upon the demurrer only, and must so be determined.

The question thus raised and now to be decided, depends upon no difficult or abtruse propositions of law. It is plain and simple, depending solely upon the letter of the law as laid down in our constitution and certain statutes enacted in pursuance thereof. By these we must be guided in our consideration of the case. The subject of free school education is one of absorbing general interest. It has, perhaps, more than any one question of public concern engaged the hearts and minds of patriots and statesmen, who are revered in memory, and whose lives and deeds are worthy of emulation by the American people. The vast importance of the subject engaged the solemn deliberations of the framers of our organic law, and called forth commands, in its behalf plainly foreshadowing and determining a line of legislative policy deemed highly essential to the welfare of the state and not to be departed from. Hence the eighth article of our constitution is devoted almost exclusively to the subject.

The first section of that article commands the general assembly within thirty days after its organization under the constitution, and every fourth year thereafter, to elect a state superintendent of public instruction, who shall have the general supervision of the public free school interests of the state. And the officer thus required to be chosen together with the governor and attorney-general of the commonwealth, are constituted by the second section of said article a board of education for the state, upon whom large powers are required to be conferred by law. The third se...