Pearman v. Robertson
| Decision Date | 10 March 1919 |
| Citation | 119 Miss. 384,80 So. 786 |
| Court | Mississippi Supreme Court |
| Parties | PEARMAN ET AL., v. ROBERTSON, STATE REVENUE AGENT |
March 1919
APPEAL from the chancery court of Bolivar county, HON. JOE MAY Chancellor.
Bill by Stoltes v. Robertson, State Revenue Agent, against A. C Pearman and others. From a decree for complainant, defendants appeal.
The facts are fully stated in the opinion of the court.
Decree of lower court affirmed in part, reversed in part and cause remanded.
Owens & Roberts and Chas. Clark, for appellant.
The allegations of this bill are practically the same as those in the bill of Lincoln County v. Green, Id., being 17,751 in this court. It will be noted in the Green case that the court says, on page 172, as follows: "The bill does not charge, and counsel in argument concede the point, that Mr Green, was county superintendent, issued pay certificates or otherwise acted in the performance of the duties of his office with corrupt or fraudulent purposes, by any collusion with any teacher for the purpose of defrauding the county, or that Mr. Green profited by any of the several transaction complained of, or appropriated to his use a single dollar."
There is no allegation in this bill as amended, that there was any collusion on the part of any of the defendants with the teachers to correctly issue these certificates, or that there was any collusion with the teachers by which any of the defendants profited by the issuance of these warrants; when these warrants were issued the officer was exercising his best judgment and discretion, and he will not be liable for error or omission done or suffered in the exercise of his judicial judgment or discretion. The court also holds that the county superintendent has judicial and executive powers and that large administrative powers are vested in him, and that he will not be held for errors in judgment, unless corruption is charged, by showing that he colluded with the school teachers and profited by his own wrong. This amended bill or the original bill, nowhere charges that Mr. Pearman ever acted corruptly or that he in any way profited by the issuance of these warrants, and in fact counsel who argued the case, stated that he could not make any such allegations, because he did not believe that was true.
The bill, as against Wray, chancery clerk, is not only defective for the reasons above stated, but we cannot see that Mr. Wray, as chancery clerk, when a pay certificate is drawn on him by the superintendent of education, certifying that the teacher had taught the required time and is entitled to the amount of the pay certificate, is called upon to go back and examine the selection of each trustee, and see if they are properly selected and signed the report and that the teacher was regularly licensed and had taught the number of days required to be taught, and that the superintendent and chancery clerk should sit at every school in the county and see if the teacher teaches the number of hours required. The chancery clerk simply takes the pay certificate issued by the superintendent of education and issues the warrant, and is not required and the law never contemplated that he should go from the organization of the school to the final making of the report of the teacher to see that every step was legal before he issued warrants on the pay certificate issued by the county superintendent of education.
As to Fred Clark, we are at a loss to understand how he could possibly be charged with any notice with regard to these school warrants, when the teachers would send him their reports and he presented the reports to the superintendent of education and the superintendent of education in turn issues pay certificates on the report, and he takes that certificate to the chancery clerk and the chancery clerk issues a warrant on that and that warrant is paid by the county depository, we are at a loss to understand why or how he could be charged with the duty of first going from the organization of the school to see if the school was properly organized, then to the election of the trustees to see if they were properly selected, then to the selection of the teachers to see if they were properly selected, then the teaching of the school each hour and each day during the month, to see that they taught the time that the report showed that they taught, then to the report of the trustee to see if it is properly made out before he could carry it to the superintendent of education and the chancery clerk and get the warrant and collect it. He is charged with no duty at all and the bill alleges his duty to have been as shown on page 7, "that he well knew or should have known and could have easily ascertained from an examination of the records in the office of the clerk of the chancery court of Bolivar county, Mississippi, that said pay warrants were unlawfully issued." The law charges no such duty upon clerk or any one else, and in fact in the Green Case, Id., it was alleged that eight thousand, nine hundred and twenty-seven dollars and sixty-five cents was paid to teachers with whom no contracts had been made.
It will be noted that in this original and amended bill it was nowhere charged that the superintendent of education--did not have the reports from the trustees of the schools, as required by law, when he issued the pay certificates. The superintendent of education issues a pay certificate to the teacher when his report is brought in by that teacher, signed by the trustees of the school showing that the teacher had taught the required time and had the required average, and that is the authority of the superintendent for issuing the pay certificates. The report is preserved and recorded on the superintendent's register. When the pay certificate is issued to the chancery clerk he issues a warrant and that warrant in turn is presented to the county treasurer who pays the teacher the amount due. Nowhere in this amended bill is the allegation made that these pay certificates were issued without any reports being received by the superintendent of education.
The bill seems to assume that it is the duty of the superintendent of education to visit the schools every day and see if the teachers are there and make a thorough examination of the trustees' and teachers' report after he received such report, before he issued the pay certificate. This was repudiated as a fallacy in the Green Case.
We respectfully submit that the amended bill did not differ from the original and that the amendment made simply stated the conclusion of the pleader, and no additional facts constituting a fraud on which the court could have predicated a charge of fraud. The other ground of the demurrer or improper joinder of parties, etc., speak for themselves, and need no discussion.
A. W. Shands, for appellee.
Appellant plants his whole case on the decision handed down by Justice STEVENS in the case of State, for the use of Lincoln County v. Green, 71 So. 171, and says that the allegations of the bill in the case at bar and the allegations of the bill in the Green Case are one and the same.
Judge STEVENS decided the Green Case properly following the early cases of Paxton v. Baum and Paxton v. Arthur. He gives as his reason for sustaining the demurrers in that case as follows: "While the officer whose acts are here brought in question may have acted indiscreetly in some instances, and while there may have been many irregularities in the conduct of the business of his office, it yet remains that he was a public officer charged with the duty of exercising his best judgment and discretion in the performance of his official work, and in this action instituted on his official bond he is protected by the well recognized principle of law that the officer is not liable for any errors or omissions done or suffered in the exercise of his judicial judgment or discretion." From this language it appears that the law is that a public officer is not liable for any error which may be committed "in the exercise of his judicial judgment or discretion."
It cannot, however, be argued that when he well knew that the person to whom he was issuing pay certificates had never taught school in the county that he was exercising any judicial discretion, especially where the charge is that he did this with intent to defraud the common school fund.
Further down in the same opinion, Justice STEVENS says for error of judgment and discretion in the absence of fraud he is not liable on his official bond or otherwise," which we interpret to mean that "where fraud comes in at the door, judicial discretion flies out of the window" as was well said by Lord Bacon.
Judge STEVENS further says in the same opinion "it will be borne in mind that the several matters complained of in the instant case were items of business within the jurisdiction of the county superintendent, and the services charged to have been illegally paid for were services inuring to the benefit of the county and not to Mr. Green."
Not so in the case at bar...
To continue reading
Request your trial