State ex rel. Cowan v. Morgan

CourtUnited States State Supreme Court of Mississippi
Citation106 So. 820,141 Miss. 585
Decision Date01 February 1926
Docket Number25420
PartiesSTATE ex rel. COWAN, DIST. ATTY., v. MORGAN, COUNTY SUPERINTENDENT. [*]

Division A

1. SCHOOLS AND SCHOOL DISTRICTS. Board's order discontinuing school in district not to be altered by superintendent so as to abolish district.

Order of county school board that school in a certain district be discontinued could not be altered by the county superintendent of education so as to abolish the district.

2. SCHOOLS AND SCHOOL DISTRICTS. County board cannot discontinue all schools in district without children being furnished other available school facilities.

Under Const. 1890, section 205, and Laws 1924, chapter 283, section 91, county school board cannot discontinue all schools in an established and existing district so long as resident children are not furnished other available public school facilities, though there be less than forty-five educable children therein.

3. SCHOOLS AND SCHOOL DISTRICTS. Any authority of county school board to abolish districts held limited.

If county school board has implied authority under Laws 1924 chapter 283, section 38, to abolish districts by so altering their boundaries as to combine several, no part of the county may be left out of a district, and districts must be arranged with regard to impassable obstructions and so as to place all children within reasonable distance of school as required by section 39.

4. MANDAMUS. Proper remedy to require superintendent to contract with qualified teacher selected by trustees of district.

Mandamus is proper remedy to require superintendent of education to contract with qualified teacher who has been regularly selected by trustees of district.

HON. D M. GRAHAM, Judge.

APPEAL from circuit court of Jackson county, HON. D. M. GRAHAM, Judge.

Mandamus by the state, on the relation of R. C. Cowan, district attorney, against Mack Morgan, county superintendent of education. Petition dismissed, and petitioner appeals. Reversed and judgment rendered.

Reversed and judgment here.

Bullard & Bullard, for appellant.

Neither the county school board nor the county superintendent had authority to discontinue a school, so long as there are at least the minimum number of children to attend it, fifteen in this instance. It is admitted by the pleadings that there are twenty-four or more children of educable ago in the district. The language of the constitution and statutes is mandatory. See section 205, Constitution of 1890; Section 91, chapter 283, Laws of 1924. When, therefore, the defendant was called upon to contract with a teacher for the school, realizing as he must have done, that the school could not lawfully be discontinued, he changed the order to one abolishing the district and upon that act of his refused to contract with a teacher. Therefore, the act to abolish the district was the unauthorized act of the defendant and not the act of the school board.

But even the school board had no authority to abolish a district, even if such had been their order. So much as has already been said is no doubt sufficient to decide the case in favor of appellant, but it is of great public importance, at least to Jackson county, to have this question decided if it is proper to do so. We, therefore, present it in the hope that it may be set at rest. It is evidently the purpose of the defendant and the school board to force consolidation of all the smaller schools in the county that will not take advantage of the law authorizing such consolidation by abolishing the smaller districts. If they have not the authority to do this, it will avoid confusion and litigation hereafter to have the question set at rest.

To determine the power of the school board in this respect it will be necessary to examine several constitutional and statutory provisions. Section 16, article VI, Constitution of 1817; Section 14, article VII, Constitution of 1832; Section 201, article VIII, Constitution of 1890. The county school board was created by section 3962, Code of 1892. Soction 3993, Code of 1892, defines the authority of the school board with reference to the school districts. Authority was not conferred on the board to create any school district, if that could have been delegated to it. The public schools were already in existence in every neighborhood in the state. The existence of those and their districts was recognized by constitutional and statutory authority. It needs no citation of authority to show that the school board has no authority except that conferred on it by statute. This authority was to define or alter boundaries, not to create districts or abolish them. In fact, the legislature could not have conferred authority on the school board to abolish a district and leave the children within it without the privilege of attending a public school. The constitution is mandatory that this privilege be extended to all children of educable age.

This provision fixing the authority of the school board with reference to the school districts was continued and re-enacted in chapter 263, Laws of 1924, section 38. To abolish the Steede district would be to destroy every legal right the children had to attend any public school, and to deny them this was something not even the legislature could do.

The act of creating and abolishing school districts is a legislative function. Section 35, Cyc. 831-834. It is generally held that this power may be delegated to local officers, but with us it has not been done excepting only those relating to defining and altering boundaries. No authority to create or abolish is conferred. Even if the board had power to create a district, that does not carry with it the power to abolish. At any rate, this power will not be inferred where its exercise would abridge a constitutional or lawful right.

*NOTE. No brief filed for appellee.

Argued orally by R. L. Bullard, for appellant.

OPINION

COOK, J.

A petition was filed in the circuit court of Jackson county seeking the issuance of a writ of mandamus to compel the county superintendent of education to employ and contract with a teacher for the Steede public school for the scholastic year 1925-26. The petition averred that the Steede public school district had been lawfully established, and had been maintained for many years, and the orders of the school board defining the boundaries of the district were attached as exhibits thereto. The petition further alleged that the Steede school is located in a sparsely settled portion of the county where it is not practicable for the children within it to attend any other school, the nearest other school being the Vancleave school, which is from eight to ten miles distant; that there are within said Steede school district twenty-four or more educable children who will be deprived of the privilege of attending any public school unless said Steede school is maintained. The petition further averred that the trustees of said Steede school, within the time required by law, duly selected a competent and qualified teacher who held a valid license to teach in the public schools of the county; that they reported this selection of a teacher to the superintendent and recommended her for employment for the scholastic term of 1925-26, but that the...

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