State ex rel. Patterson v. Land

• Decision Date: 10 June 1957
• Docket Number: No. 40386,40386
• Citation: 95 So.2d 764,231 Miss. 529
• Parties: STATE of Mississippi, ex rel. Joe T. PATTERSON, Attorney General, v. J. Chandler LAND, Superintendent of Public Education, Kemper County, Mississippi. *
• Court: Mississippi Supreme Court

Page 764

95 So.2d 764

231 Miss. 529

STATE of Mississippi, ex rel. Joe T. PATTERSON, Attorney General, v. J. Chandler LAND, Superintendent of Public Education, Kemper

County, Mississippi. ^*

No. 40386.

Supreme Court of Mississippi.

June 10, 1957.

Wm. G. Burgin, Jr., Columbus, Ney M. Gore, Jr., Marks, for appellant.

J D. Guyton, John D. Guyton, Kosciusko, Helen J. McDade, KeKalb, for appellee.

ETHRIDGE, Justice.

This case originated with a petition or information filed by Joe T. Patterson, Attorney General of the State of Mississippi, for a writ of quo warranto against appellee, J. Chandler Land, who is serving as the Superintendent of Public Education in Kemper County, on the ground that he unlawfully holds and exercises that public office, and for the purpose of trying his right to that office.

The case involves three questions: (1) Whether Section 9 of Chapter 10, Miss. Laws 1953, Ex.Sess., is constitutional; (2) if so, whether in fact appellee Land fails to qualify under that statute; and (3) whether the undisputed facts would permit any discretionary refusal of the writ.

The circuit court recognized that Land was not qualified under the statute, but, holding the act to be unconstitutional, it dismissed the State's petition. We think the writ should issue.

1.

Section 9 of Chapter 10 is part of the large body of new legislation enacted by the 1953 Extraordinary Session of the Legislature which was directed toward reorganizing the public school system of the State. It provides: 'No person shall be eligible to the office of county superintendent of education unless such person shall hold a certificate to be issued by the state department of education certifying that he holds a Bachelor's Degree and also that he shall hold, or be eligible to secure, a Class A certificate for administrators as defined in the rules and regulations of the State Department of Education covering the certification of instructional personnel, one-half of the work in which shall have been in school administration, awarded by an institution approved by the state department of education, and that he has not less than five (5) years' actual experience in an administrative position in some public school of the State of Mississippi, or of a state extending reciprocal licensing of teachers to the State of Mississippi; provided that no person who is serving as county superintendent of education at the effective date of this act shall be ineligible for the office of county superintendent of education because of lack of the qualifications prescribed by this section. It shall be unlawful for the election commissioners of any county to place the name of any person upon the ballot as a candidate for county superintendent of education who does not qualify under the terms of this act; and, in counties wherein such office is appointive, it shall be unlawful for the county board of education to appoint a person to such office who does not qualify under the terms of this act.'

It will be noted that this act expressly states that no one shall be eligible for the office unless he meets certain specified requirements. And it further makes it 'unlawful for the election commissioners of any county to place the name of any person upon the ballot as a candidate for county superintendent of education who does not qualify under the terms of this act.'

In its broadest sense quo warranto is a writ of inquiry as to the warrant for doing acts of which complaint is made. It is the remedy by which the state determines the legality of a claim which a party asserts to the use and exercise of an office or franchise. 44 Am.Jur., Quo Warranto, Section 2. The writ came into existence at some unascertained period early in the history of the common law. In Mississippi it is defined in a chapter in the Mississippi Code of 1942, Sections 1120-1145.

One of the functions of the writ at common law and under the statutes is to serve as an appropriate and adequate means for determination of the right or title to a public office, and to oust an incumbent who is unlawfully holding the same. Ibid., Section 22. Code Section 1120 provides for the use of the writ of quo warranto in ten different types of cases, and in part, states:

'The remedy by information in the nature of a quo warranto shall lie, in the name of the state, against any person or corporation offending in the following cases, viz.:

'First.--Whenever any person unlawfully holds or exercises the functions of any public office, civil or military, or franchise, or any office in any corporation, city, town, or village, and to try the right to any such office.'

Section 1128 states: 'All such informations shall be deemed civil proceedings, and shall be put at issue and tried at the return term according to the rules which govern the trials of other civil causes.'

And Section 1129 describes the judgment to be rendered: 'If judgment be against the defendant, finding that he has been exercising the functions of an office without authority, he shall be removed from office and debarred therefrom, and shall pay costs. The court shall order the defendant to deliver over all records, books, and papers in his custody or under his control, belonging to the office, and may make and enforce all orders proper to carry its judgment into effect.'

It is well-established that, in a quo warranto proceeding to try the title to a public office, where the state is the relator instead of an individual claimant, the burden is on the defendant to prove his right or title to the office. It is incumbent upon him to show a good legal title and not merely a colorable one, for he must rely wholly on the strength of his own title. The defendant must show a right de jure and not merely de facto. Jones v. State ex rel. McFarland, 1949, 207 Miss. 208, 213, 42 So.2d 123; 44 Am.Jur., Quo Warranto, Section 107. On the other hand, where a suit is brought on the relation of a private litigant, the petitioner has the burden of establishing his right to the office, because such suit is not a public action, but in the nature of a private suit. State ex rel. Parks v. Tucei, 1936, 175 Miss. 218, 223, 166 So. 370; Hood v. Cruso, 1937, 179 Miss. 234, 174 So. 552. Hence the burden of proof is upon defendant Land in this action brought by the State, through its Attorney General, to contest his legal right to the office.

2.

The State filed this petition for quo warranto on May 12, 1956, about four and one-half months after Land took office as Superintendent of Education for Kemper County. Briefly stated, the petition charged that Land procured his name to be placed on the primary and general election ballots for County Superintendent of Education contrary to the provisions of Section 9, Chapter 10; that he received the highest number of votes in each election, was declared elected, issued a commission, and is now unlawfully occupying the office and performing the functions thereof in violation of the laws of the state.

It was charged that appellee does not meet the qualifications of the statute because he does not hold and is not eligible to secure a Class A certificate for Administrators as defined in the rules and regulations of the State Board and Department of Education. Land's answer admitted that he did not have and was unable to secure such a certificate. The petition averred that Land does not have twelve semester hours or sixteen quarter hours of graduate credit in school administration, as required by these rules. He admitted that he did not have this requirement.

The petition charged that he does not have five years actual experience in an administrative position in a public school, which the answer denied. It was averred that defendant does not have a certificate of eligibility for the office of County Superintendent, which is required by the statute as a condition precedent to the placing of his name on the general election ballot. The answer in effect admits that defendant does not hold a certificate of eligibility under the 1953 statute, but it pleads affirmatively that Land holds such a certificate from the State Department of Education dated March 3, 1951, which was issued under Mississippi Laws 1938, Chapter 231. However, this statute under which the 1951 certificate was issued, being Code 1942, Section 6253, was repealed by the 1953 Laws, Ex.Sess., Chapter 10, Section 11.

The petition charged and defendant admitted that he had never previously served and was not serving on December 28, 1953, as Superintendent of Education of Kemper County, so defendant does not come within the exception in Section 9 of Chapter 10. Hence the petition alleged that defendant is not legally qualified to hold the office; that he is now usurping it and its functions and powers; and prayed that the court would enter an order ousting him from the office and declaring the same vacant.

In addition to the above admissions in the answer of Land, defendant pleaded that he had received a majority of the votes in the primary and general elections; he denied that it was unlawful for his name to be upon the ballots; admitted that he is now holding the office, and averred that he is holding it in accordance with the statutes prior to 1953. The answer claimed that the 1953 Act is unconstitutional, because it is not authorized by Section 204, is an invalid delegation of legislative power, and contains an unreasonable classification as to incumbents. The answer pleads affirmatively a letter from the Attorney General, dated January 4, 1955, to I. M. Latimer, giving an opinion that service as an On-the-Farm Veterans' teacher constitutes experience in an administrative position; and a decree of the Chancery Court of Kemper County of May 19, 1955, in which, in a suit against the members of the Kemper County Democratic Executive Committee, that court ordered the Committee to place Land's name upon the primary election ballot, holding that the 1953 Act was...