Combs v. State Bd. of Educ.

• Decision Date: 23 May 1933
• Parties: COMBS v. STATE BOARD OF EDUCATION et al.
• Court: Kentucky Court of Appeals

60 S.W.2d 957

249 Ky. 320

COMBS v. STATE BOARD OF EDUCATION et al.

Court of Appeals of Kentucky

May 23, 1933

Appeal from Circuit Court, Franklin County.

Action by Townsel Combs for mandamus to be directed to the State Board of Education and others. From a judgment dismissing the petition, plaintiff appeals.

Affirmed.

Chas N. Hobson, of Frankfort, for appellant.

Bailey P. Wootton, Atty. Gen., and Wm. R. Attkisson, Asst. Atty Gen., for appellees.

RATLIFF Justice.

Townsel Combs, a resident, voter and taxpayer of Floyd county, Ky filed certain verified charges with James H. Richmond, state superintendent of public instruction, and with the state board of education, composed of said James H. Richmond superintendent of public instruction, Bailey P. Wootton, Attorney General, Sara W. Mahan, secretary of state, in which it was alleged that John Stephens, county superintendent of schools of Floyd county, Ky. and M. V. Wicker, George Hale, John W. Hamilton, Jack Branham, W. H. Horn, and James A. May, together with John Stephens, county superintendent, composing the county board of education of Floyd county, Ky. had committed certain wrongful and unlawful acts in their official capacity. It is not necessary for the purpose of this opinion to set out in detail the acts charged. It is sufficient to say that the acts charged, if substantiated by evidence, would fully justify their removal from office.

The question before us for determination is whether or not a writ of mandamus should issue to compel James H. Richmond and the other defendants, members of the state board of education, to summons witnesses and cause a hearing to be had on the charges presented by the plaintiff.

The petitioner, appellant, stated that he had furnished a list of witnesses to James H. Richmond, chairman of the board of education, and that he, Richmond, had refused to summons the witnesses or cause a hearing to be had. The petitioner prayed for a writ of mandamus to compel Richmond, superintendent of public instruction, and the state board of education to cause summons to be issued for witnesses and have a hearing on the charges filed with them.

A demurrer was sustained to the petition, whereupon plaintiff amended his petition, alleging that the controversy and dispute involved the proper administration of the public school system; that the statutes under which plaintiff filed said charges had been continuously the law of Kentucky for many years and it had been the fixed policy, habit, and custom of former superintendents of public instruction and members of the state board of education to hold official hearings on charges or complaints duly filed by a citizen and taxpayer, and by reason of such custom and construction of the statutes adopted by previous boards of education, it had become a rule of contemporaneous construction of the statutes which should be adhered to herein; that the defendants have violated and departed from the meaning and construction of said statute.

The circuit court sustained a demurrer to the petition as amended as against the state board of education and the members thereof, except as to the defendant James H. Richmond. Richmond then filed his answer in which he denied certain allegations of the petition and further pleaded affirmatively in a separate paragraph, that he sent J. C. Mills, the duly qualified and acting assistant auditor and inspector of the department of education, to inspect and examine into the fiscal management and conduct of the office of superintendent of schools and members of the board of education of Floyd county, and to ascertain the truth or falsity of the charges set out in plaintiff's petition; that said J. C. Mills did make an audit and inspection of the said offices of the Floyd county board of education and the members thereof and the office of superintendent of county board of education of Floyd county; that said J. C. Mills made his findings and report thereon and duly filed same in the office of defendant Richmond, which report was based upon his audit and inspection as aforesaid; that upon...