State ex rel. Anderson v. Board of Ed. of Mingo County

• Decision Date: 22 March 1977
• Docket Number: No. 13736,13736
• Citation: 233 S.E.2d 703,160 W.Va. 208
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. John D. ANDERSON v. The BOARD OF EDUCATION OF MINGO COUNTY, West Virginia.

Page 703

233 S.E.2d 703

160 W.Va. 208

STATE ex rel. John D. ANDERSON v. The BOARD OF EDUCATION OF MINGO COUNTY, West Virginia.

No. 13736.

Supreme Court of Appeals of West Virginia.

March 22, 1977.

Syllabus by the Court

1. The county superintendent of schools is an officer elected by the county board of education for a term of from one to four years. He shall be elected on or before May 1 prior to July 1 when he enters upon the duties of his office. W.Va.Constitution, Article XII, § 3; W.Va.Code, 18-4-1.

2. A school district is composed of and includes all of the territory of one county in West Virginia. W.Va.Code, 18-1-3. Members of the county board of education shall be citizens and residents of the county served by such board. W.Va.Code, 18-5-1a. A citizen and resident of a county in West Virginia is not disqualified to be a member of and to serve on the county board of education of his county because of his employment at the time as an assistant principal of a high school in a neighboring state.

3. The fact that two men, one a member of the county board of education and the other a candidate for the office of superintendent of schools of the same county, are, at the time, married to sisters does not inhibit the board member's participation in the election of the other man to be county superintendent of schools of the county. The board's action in the election is valid and not in violation of W.Va.Code, 61-10-15.

4. When a candidate for the office of county superintendent of schools, with requisite qualifications, is elected to the office by a lawfully composed county board of education at a regular meeting thereof prior to May 1, consistent with the provisions of W.Va.Code, 18-4-1, and the candidate so elected relinquishes other school employment assignments and holds himself in readiness to assume, on July 1 next thereafter, the duties of the office to which he has been elected, he is entitled to the office and the board of education is legally obligated to permit and allow him to assume the duties of the office, in the absence of intervening impediments disqualifying the person so elected from lawfully holding such office. The facts that the elected county superintendent of schools and a member of the county board of education are friends, that they, at the time, hold related administrative positions in a high school in a neighboring state, and that they are married to sisters are not disqualifying impediments under the laws of West Virginia.

5. "Mandamus is the proper remedy to admit to office a person who shows a clear prima facie legal right to an office and who is wrongfully excluded from it." Syllabus, point 1, State ex rel. Porter v. Bivens and Dingess, 151 W.Va. 665, 155 S.E.2d 827 (1967).

6. "Mandamus is a proper remedy to require the performance of a nondiscretionary duty by various governmental agencies or bodies." Syllabus, point 1, State ex rel. Allstate Insurance Co. v. Union Public Service District, 151 W.Va. 207, 151 S.E.2d 102 (1966).

William L. Jacobs, Parkersburg, for relator.

Preiser & Wilson, Stanley E. Preiser, Franklin S. Fragale, Jr., Charleston, for respondent.

McGRAW, Justice:

Relator, John D. Anderson, invokes the original mandamus jurisdiction of this Court, praying for the issuance of a peremptory writ of mandamus commanding and compelling the defendant, The Board of Education of Mingo County, West Virginia, "to rescind, revoke and annul their unlawful action in attempting to elect a second person to the office to which the relator is entitled by law and commanding and compelling the Board of Education of Mingo County, West Virginia, to permit and allow the relator to do and perform the duties of his said office (the office of county superintendent of schools of Mingo County) pursuant to law and to receive the emoluments for said service and to compel the said Board to proceed and act in accordance with and in compliance with the laws of the State of West Virginia." Relator avers in his petition circumstances which, in his opinion, warrant by-passing the Circuit Court of Mingo County and presenting his original application for mandamus relief in this Court, and further avers that the taking of evidence will not be necessary for proper disposition of the application.

Defendant has filed an answer and an amended answer to relator's petition, denying that relator was lawfully elected to the office of county superintendent of schools of Mingo County, and denying that relator "has a plain, clear or legal right to the position." His Joinder and Response to Demurrer of Relator to Answer of Respondent and his Rejoinder to the Reply of Relator to Answer of Respondent have been filed. Defendant has also moved to dismiss and discharge the rule as being improvidently awarded by this Court. Relator has demurred and replied to the answer and to the amended answer. Depositions of four members of the board of education, of the superintendent of schools and the assistant superintendent of schools of Mingo County, and of relator, John D. Anderson, have been filed herein. Briefs and reply briefs have been filed by the parties.

Relator, in his deposition, states his age as 59 years, that he is a resident of Mingo County, and that he has taught school for some 38 years. He has the education, experience and professional qualifications to be a county superintendent of schools. He attests he has a health certificate from a reputable physician which he has ready and will file with the president of the board of education when his right to take the oath of office and assume his official duties of superintendent of schools is judicially determined. W.Va.Code, 18-4-2. His position is that he was elected at the regular meeting of the board of education on March 10, 1976, to serve as county superintendent of schools of Mingo County for a term of four years commencing on July 1, 1976. By letters of March 31 and April 6, 1976, the president of the board of education notified the State Superintendent of Schools of relator's election as county superintendent of schools. W.Va.Code, 18-4-1. At a later meeting of the board of education, relator's salary as superintendent of schools was considered and fixed. Although reemployed in a county school system in the State of Kentucky for the school year 1976-77, he declined acceptance of the employment because of his election as superintendent of schools of Mingo County. At the primary election on May 11, 1976, Larry Hamrick was elected as a member of the board of education replacing J. Hershel Morgan, who had been appointed to fill a board vacancy until a board member was elected. At the meeting of the board on June 9, 1976, upon receipt of an opinion from the prosecuting attorney of Mingo County, dated June 8, 1976, that relator's employment as superintendent of schools was illegal and void ab initio, the board, upon the recommendation of J. Paul Turner, then county superintendent of schools and secretary to the board of education, and on motion of the newly elected board member, Larry Hamrick, declared the office of county superintendent of schools vacant. The prosecuting attorney's opinion was based primarily on provisions of W.Va.Code, 61-10-15, prohibiting a member of a school board from having any interest, directly or indirectly, in a contract with or services for the board. The basis for the ruling was that board member, J. Hershel Morgan, was a brother-in-law of relator, John D. Anderson. The wives of the two men were sisters.

Relator reported daily to the board of education offices, commencing July 1, 1976, for assumption of his duties but was precluded from assuming the duties by another occupant of the office of county superintendent of schools. He was not required to take the oath of office as superintendent until assuming the duties of his office. W.Va.Code, 18-5-25. The county superintendent is an officer, not an employee of the school board. W.Va.Constitution, Article XII, § 3.

Among allegations in defendant's answer and amended answer, both verified by Larry Hamrick, the elected member of the board of education replacing J. Hershel Morgan, defendant:

(1) asserts relator's failure to comply with requirements of Rule XVIII, P 3, Rules of Practice of this Court;

(2) asserts relator's failure to allege "he had in fact entered into a contract of employment with the respondent";

(3) denies relator's submission of an application to the board of education for the position as superintendent of schools;

(4) denies validity of relator's election by the board of education at its March 10, 1976 meeting;

(5) affirms that Paul Turner was employed as county superintendent of schools at the board meeting on June 19, 1976;

(6) asserts that relator was never legally elected to be county superintendent of schools by the board of education that the attempt to so elect him was null and void in violation of W.Va.Code, 61-10-15, prohibiting a board member from having any interest in a contract or service with the board;

(7) asserts that J. Hershel Morgan was ineligible to be a member of the board of education of Mingo County since he was employed in the Pike County schools in the State of Kentucky;

(8) asserts that relator was not elected legally because his salary was not set at a valid board meeting;

(9) denies "election" of relator as county superintendent of schools;

(10) asserts no contract was entered into between relator and the board of education relating to the county superintendent position;

(11) denies relator has "plain, clear or legal right" to the position as county superintendent of schools; and

(12) admits no claim is made that relator "was guilty of immorality, incompetence, insubordination, intemperance or wilful neglect of duty" and that no charges were filed against relator for his removal from office since he had not been elected to the office of county superintendent of schools.

The primary issue is whether, upon...