Lee v. Huff

• Decision Date: 11 January 1896
• Citation: 33 S.W. 846,61 Ark. 494
• Parties: LEE v. HUFF
• Court: Arkansas Supreme Court

33 S.W. 846

61 Ark. 494

LEE v. HUFF

Supreme Court of Arkansas

January 11, 1896

Appeal from Hempstead Circuit Court RUFUS D. HEARN, Judge.

STATEMENT BY THE COURT.

The appellant, W. F. Lee, being the county examiner of Hempstead county, held a teachers' institute at Washington, in that county. The appellee, J. B. Huff, a teacher in one of the public schools of the county, was notified that such institute would be held, but failed to attend the same. For this reason the appellant revoked the license which had been granted to Huff to teach in the public schools of the county. Afterwards Huff brought this action against Lee, alleging that his license had been revoked by the defendant "wrongfully, maliciously and without right;" that by reason thereof, he was unable to comply with his contract which he had made to teach a school in said county; and he asked judgment for damages. Defendant, in his answer, denied that he had revoked the license wrongfully or maliciously but alleged that, after having been duly notified, the plaintiff had unlawfully, negligently and wilfully refused and failed to attend a teachers' institute, and that for this reason he revoked his license, believing that it was his duty so to do.

On the trial there was little dispute about the facts. It was shown that, after being notified, Huff had failed to attend a teachers' institute, and that for this reason his license to teach was revoked. The defendant testified that he had no malice, but that his action was dictated solely by what he supposed the law and his duty required that he should do. The court, among other instructions, told the jury that "there were only two causes for which the defendant, as county examiner, would have the right to revoke the license of the plaintiff, which were immorality and incompetency." The court refused to instruct for the defendant that if the license of plaintiff had been revoked on account of his failure after due notice to attend the teachers' institute, the jury should find for the defendant, if they believed "from the evidence that, in revoking the license of plaintiff as a public school teacher he (the defendant) acted in good faith, and in the honest discharge of his duty, as he understood and construed it under the law."

There was a verdict and judgment against defendant for the sum of one hundred dollars.

Judgment affirmed.

Dan W. Jones & McCain and R. B. Williams, for appellant.

1. No civil liability attaches to an officer, acting within his jurisdiction, on account of the manner in which he discharges the duties of his office, unless it be shown that he acted maliciously or corruptly. Sand. & H. Dig. sec. 7000 to 7026; Bish. Non-Cont. Law, sec. 788; 20 Am. Rep. 431; Cooley, Torts, pp. 411, 412, and notes; 19 Am. & Eng. Enc. Law, pp. 486-489, and notes; Hilliard on Torts, 186; 3 How. 87, 98; 44 Mo. 491; 6 W.Va. 486; Duvall (Ky.), 66; 18 B. Mon. 711; 27 Am. Rep. 343; 95 Ill. 263; 35 Am. Rep. 163; 21 Am. & Eng. Enc. Law, 760-1-2 and notes; 39 Oh. St. 346; 51 Ind. 206. But, if the powers of county examiners are not even quasi judicial, the same conclusion is reached. 104 Ind. 548.

2. Disobedience of constituted authority is incompetency of the most flagrant type, and is an adequate cause of removal under our laws. Sand. & H. Dig. secs. 7073, etc.; 53 Ark. 473.

3. The court's charge was inconsistent and erroneous.

D. B. Sain, for appellee.

1. The statute provides no penalty for failure to attend a county institute. Sand. & H. Dig. sec. 7073. The county examiner has no power to revoke a license for such failure to attend.

2. But if he had, non-attendance is not an "adequate" cause for removal, under sec. 7013.

3. A county examiner is liable for revoking a teacher's license in any other manner and for any other cause than that prescribed by statute. 6 Neb. 539; 81 Ill. 597; 104 Ind. 548; 21 Am. & Eng. Enc. Law, p. 820, and note 2. Even if he was a quasi judicial officer, if he acted from prejudice, or ill-will, or negligently, he is liable. Bishop, Non-Cont. Law, secs. 3, 115, 116, 786, 789, 790. He is neither a judicial nor quasi judicial officer, but he is an executive and administrative officer; and if he exceeds his jurisdiction, he is liable for damages, whether there be malice or not. 4 N.E. 197; 2 Addison on Torts, p. 682; Bish. Non-Cont. Law, secs. 791 to 798; 19 A. & E. Enc, Law, pp. 492-3, and note. A mistake as to duty, but with honest intentions, will not excuse the offender. 11 Wall. (U.S.), 136; 67 N.Y. 379.

4. A county examiner cannot revoke a license for any other cause than that prescribed by statute. 46 N.W. 1053; 21 A. & E. Enc. Law, p. 820: 6 Neb. 539; 81 Ill. 597. Even if he had the right to revoke, he should have reinstated the teacher after hearing his excuse. Cooley, Torts, p. 411.

RIDDICK, J. BATTLE, J., dissenting.

OPINION

Liability of examiner for revoking teacher's license.

RIDDICK, J., (after stating the facts.)

Under our statute a county examiner has power to revoke the license of a teacher for immorality, incompetency, and for "other adequate causes." That portion of the statute defining the powers of such examiner, material for us to consider, is as follows: "He may cite to re-examination any person holding a license and under contract to teach any free school in his county; and, on being satisfied, by re-examination or by other means, that such person does not sustain a good moral character, or that he has not sufficient learning and ability to render him a competent teacher, he may, for these and other adequate causes, revoke the license of such person."

When, under this statute, a teacher has been cited to appear and answer charges preferred against him, and, when, after a fair investigation, the examiner honestly concludes that the teacher has been guilty of such conduct as, under the statute, justifies a revocation of his license, we agree with counsel for appellant that he is not liable for damages, whether his decision be correct or not. He must follow the statute from which he receives his authority, but whether the evidence is sufficient to make out a proper case under the statute, is for him to determine. The law reposes this discretion in him, and will protect him when he acts honestly and in the faithful attempt to discharge his duties. To render him liable, it must be shown, not only that he acted erroneously, but also maliciously. Were the law otherwise, it would be hazardous to undertake to discharge the duties of such an office, for an erroneous decision, however honestly made, would expose the officer to an action for damages.

Judge Appleton, of the Supreme Court of Maine, discussing this question in a case where the members of a school committee were sued for wrongfully expelling a student from a public school, said: "The general principle is established by an almost uniform course of decision that a public officer, when acting in good faith, is never to be held liable for an erroneous judgment in a matter submitted to his determination. All he undertakes to do is to discharge his duty to the best of his ability and with integrity. That he may never err in his judgment, or that he may never decide differently from what some other person may think would be just, is no part of his official undertaking." Donahoe v. Richards, 38 Me. 379. See also the following authorities: Chamberlain v. Clayton, 56 Iowa 331, 9 N.W. 237; S. C. 41 Am. Rep. 101; Burton v. Fulton, 49 Pa. 151; Gregory v. Small, 39 Ohio St. 346; Elmore v. Overton, 104 Ind. 548, 4 N.E. 197; Fausler v. Parsons, 20 Am. Rep. 431; Pike v. Megoun, 44 Mo. 491; Kendall v. Stokes, 44 U.S. 87, 3 HOW 87, 11 L.Ed. 506; Cooley on Torts, (2 ed.) 479-483; Mechem, Public Officers, secs. 638 and 639; 19 Am. & Eng. Enc. Law. 486-489; Bishop, Non-Contract Law, sec. 785.

But the officer must act within his jurisdiction. Before he can claim the protection of the law he must do that which the law directs that he shall do before exercising his discretion.

A fair construction of the statute under consideration compels the conclusion that the examiner, before revoking the license of a teacher, must cite or summon him for examination upon the charges preferred against him. This citation is for the purpose of notifying the teacher of the charges made against him, in order that he may have an opportunity to disprove them, or to render any reasonable excuse in justification of his conduct. This was not done in this case. The license was revoked without notice to the teacher, and before he was given an opportunity to defend or excuse his conduct. The giving of this notice was not a matter left to the discretion of the examiner; for, until it was given, he had no power to pass upon the conduct of the teacher. As he undertook to do this,--to pass judgment and revoke the license without notice,--he acted in violation of the statute, and without authority, and he is liable for the consequences of his acts. Fausler v. Parsons, 6 W.Va. 486, S. C. 20 Am. Rep. 431; 2 Cooley, Torts, 486.

Some days after the order revoking the license had been made appellee came forward, and requested the appellant to set the order aside, which appellant refused to do. It is now said that this action of appellee was a waiver of notice, but a majority of the court hold that this is not so, for two reasons: First, all reference to this application was, upon motion of the appellant himself, stricken from the complaint; second, the application to set aside could not make valid a previous void order. Had the order revoking the license been set aside at request of appellee, and the matter heard anew, a subsequent decision or order would not have been void for want of notice; but this was not done. Appellant refused to vacate or modify...