McCandless v. Clark

• Decision Date: 25 February 1935
• Docket Number: 31592
• Citation: 159 So. 542,172 Miss. 315
• Court: Mississippi Supreme Court
• Parties: MCCANDLESS v. CLARK et al

159 So. 542

172 Miss. 315

MCCANDLESS v. CLARK et al

No. 31592

Supreme Court of Mississippi

February 25, 1935

Division B

Suggestion Of Error Overruled March 25, 1935.

1 EVIDENCE.

Where cases in the same court are interwoven and interdependent court in the trial of one case will take judicial notice of proceeding in other cases.

2. SCHOOLS AND SCHOOL DISTRICTS.

County superintendent of schools held not relieved of liability for refusal to employ person elected by school board on ground that board was illegal after circuit court in quo warranto proceedings had held that board was legal.

3. SCHOOLS AND SCHOOL DISTRICTS.

Plea that person elected school superintendent was restrained by injunction from performing any of duties of school superintendent held valid defense to action against county superintendent for refusal to employ such person, though county superintendent was not party to suit for injunction (Code 1930, section 6610).

4. SCHOOLS AND SCHOOL DISTRICTS.

County superintendent's refusal to contract with and permit person elected school superintendent by school board to assume his duties, on ground that statute does not authorize contracts where school appropriation was made after school term began, held no defense, since statute refers to the formal written contracts but provides that superintendent shall enter into informal contracts with teachers and superintendents to be followed by formal contracts after the appropriation is made (Code 1930, section 6610).

APPEAL from the circuit court of Yazoo county HON. W. H. POTTER, Judge.

Action by C. H. McCandless against H. L. Clark and another. From a judgment dismissing the declaration, plaintiff appeals and defendants file cross-appeals. Reversed and remanded.

Reversed and remanded.

L. F. Easterling, of Jackson, for appellant.

A plea in confession and avoidance must confess the facts pleaded and must avoid coextensively with the confession, and must be an answer to the whole of what is adversely alleged.

Florida East Coast Ry. Co. v. Peters, 73 So. 151, 72 Fla. 311, Ann. Cas. 1918D 121; Central of Georgia Ry. Co. v. Williams, 75 So. 401, 200 Ala. 73.

Appellees' second special plea shows on its face that the duties of the county superintendent are purely ministerial and mandatory.

Sections 6570 and 6610, Code of 1930.

We call attention also to the fact that the circumstances and backgrounds in some of the cases parallel the facts in the case at hand, that is, the irrevocable right of the teacher to be contracted with after being elected by a board of trustees where the legality of that board has been brought into controversy.

Brown v. Owen, 75 Miss. 319, 23 So. 35; Whitman v. Owen, 76 Miss. 783, 25 So. 669; Campbell v. Warwick, 142 Miss. 510, 107 So. 657; State v. Alexander, 158 Miss. 557, 130 So. 754.

It is a well settled and well grounded principle of law that an officer whose duties are purely ministerial cannot escape liability for nonfeasance on the grounds that he acted in the exercise of his best judgment and discretion and without corrupt or fraudulent purposes.

22 R. C. L., pages 483-4, sec. 161, and sec. 26, pages 391-2, sec. 163, page 486; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65.

The question whether or not a mandamus will lie to force an officer to perform a certain duty is the true test whether or not the duty is mandatory or discretionary.

Webster v. Ballou, 108 Maine, 522, 81 A. 1009, Ann. Cas. 1913B 567.

The ouster proceedings against Plunkett and Warrington were not ab initio within the power of the superintendent of education.

Sections 6626 and 6627, Code of 1930; 3 Words and Phrases, page 2328; Ex parte Leland, 1 Nott & McC. 460, 462; Moore v. State, 45 So. 866; Miss. State Board of Health v. Matthews, 113 Miss. 510, 74 So. 417.

It is our contention here the board on principles of justice, as well as the strict language of the statute, definitely fixes the liability for appellant's injury upon the county superintendent.

We call to our aid here the axiomatic principle of law-- for every right a corresponding remedy. McCandless, appellant, possessed a contractual right and he could not be unlawfully deprived of that right and be deprived of a remedy.

Section 2903, Code of 1930; D'Aquilla v. Anderson, 153 Miss. 549, 120 So. 434; Flack v. Harrington, 12 Am. Dec. 170; Earp v. Stephens, 55 So. 266; Duffin v. Summerville, 63 So. 816; State v. McDaniel, 78 Miss. 1, 27 So. 994, 84 A. S. R. 618; Clancy v. Kenworthy, 74 Iowa 740, 35 N.W. 427; Turner v. Sisson, 137 Mass. 191; McLendon v. State, 92 Tenn. 520, 22 S.W. 200; State v. Flinn, 3 Blackf. 72, 23 Am. Dec. 380; Brown v. Weaver, 76 Miss. 7, 23 So. 388, 71 Am. St. Rep. 512; Hibbs v. Arensberg, 119 A. 727.

The second plea answered but a part of appellant's declaration.

6 Words and Phrases, page 5545; Green v. State, 35 S.W. 97, 99, 109 Ga. 536; Burr v. Williams, 20 Ark. 171, 185; Cort v. Ambergate, N. & B. & E. Junction Ry. Co., 17 Q. B. 127, 145; Schilizi v. Derry, 4 El. & Bl. 873, 888; In re Jones, 78 Ala. 419, 421; Rowe v. Atlas Oil Co., 84 So. 485; Fox v. Hilliard, 35 Miss. 160; Florida East Coast Ry. Co. v. Peters, 72 Fla. 311, 73 So. 151, Ann. Cas. 1918D 121.

J. G. Holmes and R. R. Norquist, both of Yazoo City, for appellees.

It is the contention of the appellees, which contention was sustained by the court below, that the facts alleged in the second special plea of appellees constituted a bar to the action of appellant, and that such allegations are taken as true on the demurrer interposed by the appellant to such plea.

Plunkett et al. v. Miller et al., 162 Miss. 149.

The allegations of the plea to the effect that Clark was acting in his official capacity and in the exercise of his best judgment and discretion and in the utmost good faith, are admitted by the demurrer, and must be taken as true.

Under rules of general application county school officers are not liable individually for acts in their official capacity, or for errors in their exercise of judgment and discretion.

56 C. J. 297; Lincoln County v. Green, 111 Miss. 32; Kendall v. Stokes et al., 3 How. 87, 11 L.Ed. 506; Pegram v. State, 83 So. 741; Reese et al. v. Isola State Bank, 140 Miss. 355.

The principle that a public officer acting in the performance of his official duty and in the exercise of his best judgment and discretion, and in good faith, is not liable on his official bond for such acts, was again approved by this court in the case of National Surety Co. v. Miller, 155 Miss. 115.

Trantham et al. v. Russell, 158 So. 143; State for use of Lincoln County v. Green, 111 Miss. 32, 71 So. 171; Whitehurst v. Smith, 155 So. 683.

The action of the trial court in overruling the plaintiff's demurrer to the second plea of the defendants was correct, and should be affirmed on this direct appeal.

Section 6610 of the Mississippi Code of 1930, provides that in years when the state appropriation is made after the beginning of the fall school term it shall be lawful for the county superintendent of education to cause the schools to be taught without contract until he shall have officially ascertained the amount of the common school fund that will be distributed to his county for that scholastic year.

OPINION

Anderson, J.

Appellant brought this action in the circuit court of Yazoo county against appellee H. L. Clark, formerly superintendent of education of that county, on his official bond, and appellee the Fidelity & Deposit Company of Maryland, the surety on such bond, to recover the sum of one thousand two hundred fifty dollars alleged to be due him as superintendent of the Anding Consolidated School for the scholastic year 1931-32, which he charges he was deprived of because appellee Clark, as such county superintendent, in bad faith and unlawfully refused to recognize him and contract with him and pay him as superintendent of such consolidated school.

In addition to the general issue, the appellees pleaded three special pleas, to which appellant demurred. The demurrer was sustained to the first and third pleas and overruled as to the second. Appellant declining to plead further, final judgment was entered dismissing the cause. From the judgment dismissing the cause appellant prosecutes a direct appeal, and from the judgment sustaining the demurrer to appellees' first and third pleas appellees prosecute a cross-appeal.

This is the fifth appeal to this court of five separate cases growing out of the same transactions. State ex rel. Plunkett et al. v. Miller et al., 162 Miss. 149, 137 So. 737; McCandless v. Day et al., 162 Miss. 859, 140 So. 337; Day et al. v. McCandless, 167 Miss. 832, 142 So. 486; McCandless v. State, 167 Miss. 539, 142 So. 490. The bearing of the facts in the former cases on the present cause will be considered later.

The declaration alleges, in substance, that appellee Clark was the county superintendent of education of Yazoo county for the term beginning January 2, 1928, and ending January 2, 1932; that appellant was duly and legally elected superintendent of the Anding Consolidated School of that county for the scholastic year 1931-32, and presented himself to Clark prior to the opening of the school and demanded that Clark contract with him as provided by law; that although it was Clark's official duty to do so, he unlawfully, willfully, and arbitrarily refused, and on the contrary he set about to and did prevent appellant from performing the services as such superintendent and deprived him of the compensation therefor, amounting to one thousand two hundred fifty dollars; and that Clark thereby breached his official bond, and he and his surety became liable thereon for that sum.

In their first special plea appellees set up that ap...