Harkness v. Hutcherson

• Decision Date: 08 February 1897
• Citation: 38 S.W. 1120
• Parties: HARKNESS v. HUTCHERSON et al., School Trustees.
• Court: Texas Supreme Court

38 S.W. 1120

HARKNESS v. HUTCHERSON et al., School Trustees.

Supreme Court of Texas.

February 8, 1897.

Certified questions from court of civil appeals of Second supreme judicial district.

Application of N. L. Harkness for mandamus to M. T. Hutcherson and others. Petition was dismissed, and plaintiff appealed to the court of civil appeals, which certifies questions to the supreme court.

W. M. Pardue and Ben H. Kelly, for appellant.

GAINES, C. J.

The court of civil appeals for the Second supreme judicial district submit for our consideration and determination the following statement and questions:

"Appellant, on the 1st day of June, 1895, recovered a judgment in the justice's court of precinct No. 1 of Hall county, Texas, for $67.50, against appellees as `District Trustees of Gammage School District No. 4, County of Hall, State of Texas,' with interest thereon from date of judgment until paid at the rate of six per cent. per annum, and $8.65 costs; amounting to $76.15. The judgment was rendered in a suit filed on May 21, 1895, upon a claim for damages occasioned by the trustees in violating a written contract made by them, as such trustees, with appellant as teacher, wherein appellant was to teach the free school of said district for the term of six scholastic months, beginning November 5, 1894, for the sum of $45 per month; the said trustees having dismissed and discharged him as teacher without legal cause, and without his consent, before the expiration of his term as fixed in said contract, to wit, at the end of the third scholastic month; the trustees having paid appellant for the three months he actually taught. A check for the amount of the judgment was demanded of the trustees, and they refused to give it; and this suit was filed June 14, 1895, in the district court of Hall county, setting up all the facts, and praying for a writ of mandamus against the trustees of the said district, compelling them, as such trustees, to issue to him the proper check on the treasurer of Hall county to cover the amount of said judgment, interest, and costs, alleging that on the 23d day of February, 1895, — the day he was discharged, — there was in the hands of said county treasurer, belonging to said district, the sum of $135, which had been apportioned to it, and which remained to its credit until the apportionment of the public free school fund for the scholastic year of 1895-96, and that at the date of filing the petition in this case there was on hand in the county treasury, to the credit of said school district, the sum of $196.64. To this suit the defendants filed a general demurrer, which was sustained by the court, and, appellant refusing to amend, his petition was dismissed.

"The questions of law we deem advisable to certify to your honorable court are: (1) Whether the teacher, after the expiration of the term of his employment, who has not taught the school, and has taken no steps to reinstate himself as teacher, may maintain an action against the school district, or the trustees in their corporate capacity, for the recovery of damages on his contract with the trustees to teach the school, in a case where he is discharged without proper cause before the expiration of his term. (2) Whether, when he obtains judgment for his damages in such case, he is entitled to a writ of mandamus from the district court to compel the trustees of the school district to draw their warrant in his favor on the county treasurer for the amount of such judgment, he having demanded the warrant before applying for the writ, and they having refused to issue it."

1. At the time the transactions in question took place, the act of May 20, 1893, in relation to public free schools, was in force. Section 55 of that act empowered the trustees to employ and to dismiss teachers, but provided that, in case of dismissal, the teachers should have...