Overstreet v. Lord

• Decision Date: 12 May 1931
• Docket Number: 29337
• Court: Mississippi Supreme Court
• Parties: OVERSTREET v. LORD et al

134 So. 169

160 Miss. 444

OVERSTREET v. LORD et al

No. 29337

Supreme Court of Mississippi

May 12, 1931

Division B

1. SCHOOLS and SCHOOL DISTRICTS.

Teacher refusing request of county health officer and school authorities to remain away from school until he recovered from smallpox held subject to discharge (Code 1930, sections 835, 6573).

2. MANDAMUS. Even if teacher's discharge because, while suffering from smallpox, he exposed pupils to disease was illegal because without notice and opportunity for hearing he was not entitled to mandamus to compel payment of salary for months following discharge (Code 1930 sections 835, 6573).

Teacher so discharged was not entitled to writ of mandamus to compel payment of salary for the months following his discharge because he did not come into court with clean hands, in that in refusing to obey request of county health officer and of county superintendent and trustees to remain away from school until he recovered from smallpox to extent that his presence in school would not expose pupils to disease he violated criminal statute (Code 1930, section 835) enacted for conservation of health and lives of public.

3 MANDAMUS.

Issuance of mandamus rests in court's sound diseretion.

4. MANDAMUS.

Discretion to issue mandamus will not be exercised in favor of one applying for writ unless some just purpose is to be subserved.

5. MANDAMUS.

Mandamus will not be granted unless relator comes with clean hands.

HON. J. F. ALLEN, Judge.

APPEAL from circuit court of Attala county, HON. J. F. ALLEN, Judge.

Mandamus proceeding by James Leland Overstreet against E. C. Lord and others, trustees of the Friendship Consolidated School in Attala county. From a judgment denying the writ of mandamus, relator appeals. Affirmed.

Affirmed.

H. T. Leonard, of Kosciusko, for appellant.

Where the statute provides that the removal shall be made in a prescribed manner all the essential steps must be substantially complied with, and a dismissal by any other manner is illegal.

35 Cyclopedia, 1092 (Schools and Districts); 35 Cyclopedia L. 1093.

Statute authorizing appointments of stenographers of circuit court does not authorize the circuit judge to remove at his pleasure.

Ex parte Brown, 112 Miss. 236, 72 So. 924.

A school teacher regularly employed not obligated to discontinue teaching because attendance falls below a certain average.

Alexander v. State, 127 So. 754.

A contract of employment entered into by a school board which is invalid by reason of some defect in the execution thereof, may be ratified by the board, as by recognition by payment of salary.

35 Cyclopedia of Law, 1085.

The whole proceeding relative to the discharge of appellant, as a teacher seems to have been rather informal and unofficial, in that by common consent all parties interested to whom the appellant seems to be objectionable, met at the school building on the above named day and agreed among themselves that they did not want Professor Overstreet to continue further as a teacher in said school.

The appellant was legally elected by the board of trustees, and the board of trustees did not have the power to annul the contract without the consent of the complainant unless for legal cause to be determined in an appropriate proceeding. The board of trustees has no arbitrary power to annual valid contracts. It is an old adage that you can tie a knot with your tongue that you cannot untie with your teeth.

Campbell v. Warwick, 107 So. 657; Brown v. Owen, 23 So. 35; Whitman v. Owen, 25 So. 669; Yerger v. State, 4 So. 849.

D. E. Crawley, of Kosciusko, for appellee.

According to the testimony of the county health officer the appellant on the 24th day of February, 1930, on the reopening of the school was suffering from the smallpox, and at the time his person was unclean, being the crust stage and being in such a condition as to spread the disease among the persons with whom the appellant should come in contact. The appellant in contemptuous disregard of the law, and in contemptuous disregard of the lives and well being of those in attendance of the Friendship Consolidated School appeared and insisted on resuming his duties as a teacher therein, and by so doing not only exposed every person with whom the appellant came in contact to the dread disease of smallpox, but the appellant in so doing violated the law as well. Pretermitting the question as to whether or not the county superintendent of education and the board of trustees of the Friendship Consolidated School had the right, under the circumstances, to discharge the appellant as a teacher in the said school, nevertheless the appellant could not teach therein without violating the law, for the reason that to appear and go abroad in the company of other persons, or to go into any public place without first having obtained a certificate of his attending physician or such person qualified to give such certificate of appellant's recovery from the disease of smallpox, or of his being perfectly clean in his person and clothes, would have constituted a violation of the above section of the law.

Section 835, Code of 1930.

The conduct of the appellant on this occasion is so shocking and revolting, and evidences such a contemptuous disregard for human life as to constitute in my humble judgment just cause for revoking his license as a teacher.

OPINION

Anderson, J.

Appellant filed his petition in the circuit court of Attala county against the appellees, E. C. Lord, county superintendent of education, and J. P. Thomas, O. L. Hodges, J. E. Hubert, J. B. Gibson, and R. W. Strain, trustees of the Friendship Consolidated School in said county, for a writ of mandamus to compel the appellees to issue to appellant pay certificates in the sum of one hundred thirty dollars claimed by appellant to be due him as salary for his services as a teacher in said school for the seventh and eighth months of the scholastic year 1929, 1930, which pay certificates, the appellant alleged, had been unlawfully denied him by the appellees.

The appellees answered denying the allegations of the petition, and the cause was heard by the circuit judge sitting as judge and a jury, on the petition, answer, and proofs, and a judgment was rendered denying the writ of mandamus. From that judgment the appellant prosecutes this appeal.

The appellant was duly elected as first assistant teacher in the Friendship Consolidated School for the scholastic year 1929 1930, the said term being for eight months. The appellant taught six months when the county superintendent of education and the trustees of the school undertook to discharge him, as a result of which action the appellant was denied the right to teach the last two months of the term. For those two months he claims that he is entitled to the salary fixed for his services,...