State ex rel. Payne v. Board of Ed. of Jefferson County, No. 10345

• Court: Supreme Court of West Virginia
• Writing for the Court: HAYMOND
• Citation: 135 W.Va. 349,63 S.E.2d 579
• Parties: STATE ex rel. PAYNE, v. BOARD OF EDUCATION OF JEFFERSON COUNTY et al.
• Decision Date: 13 February 1951
• Docket Number: No. 10345

Page 579

63 S.E.2d 579 135 W.Va. 349 STATE ex rel. PAYNE,
v.
BOARD OF EDUCATION OF JEFFERSON COUNTY et al. No. 10345. Supreme Court of Appeals of West Virginia. Submitted Jan. 10, 1951.
Decided Feb. 13, 1951.

Page 580

Syllabus by the Court.

1. Mandamus does not lie to control a board of education in the exercise of its discretion, in the absence of caprice, passion, partiality, fraud, arbitrary conduct, some ulterior motive, or misapprehension of law upon the part of such board.

2. Section 2, Article 7, Chapter 75, Acts of the Legislature, 1947, Regular Session, provides a remedy by mandamus to compel a board of education to perform duties imposed upon [135 W.Va. 350] it by that section of the statute which do not involve the exercise of discretion by such board.

3. In mandamus the petitioner must show a clear legal right to the relief which he seeks.

Edwin F. Lark, Charles Town, for relator.

Page 581

Lee Bushong, Jr., Charles Town, Henry W. Morrow, Shepherdstown, for respondents.

HAYMOND, Judge.

This is an original proceeding in mandamus in this Court by the State of West Virginia at the relation of Stewart M. Payne, a Negro teacher and principal of the Page-Jackson Eagle Avenue Schools, in Charles Town, West Virginia, to compel the defendants, Board of Education of Jefferson County and T. A. Lowery, County Superintendent, to pay the sum of $733.50, to which the petitioner claims he is entitled as salary for duties performed by him during the school years 1948-1949 and 1949-1950, under a continuing contract between the petitioner and the board of education. The case was heard and submitted upon the petition, the demurrer and the answer of the defendants, and the special replication of the petitioner to the answer.

The material facts, other than those relative to the charge that the conduct of the defendants in fixing the salary of the petitioner constitutes discrimination against him on account of his race, are not disputed and the legal question presented by the pleadings involves the proper interpretation and application of certain provisions of Section 2, Article 7, Chapter 75, Acts of the Legislature, 1947, Regular Session.

The petitioner has a master's degree from the University of Michigan, an institution qualified and approved by [135 W.Va. 351] the State Board of Education, and holds a first-class high school certificate and also a valid certificate for life under Sections 25 and 30, Article 7, Chapter 31, Acts of the Legislature, 1941, Regular Session. On September 3, 1948, he entered into a written teachers continuing contract of employment with the defendant board of education under which he was given the position of principal of the Page-Jackson Eagle Avenue Schools, two consolidated elementary schools located in one building, and during the school years 1948-1949 and 1949-1950 he performed the duties assigned to him in that employment. As principal of those schools during that period he had supervision of fourteen teachers and taught for one hour each day. The contract of employment of the petitioner did not fix his salary in any specified amount but provided that his salary should be paid 'as required by law'. It does not appear that petitioner was charged with the responsibility of a school lunch program apparently required of principals of some of the other schools of the county, or that his school days were as long or his administrative duties as heavy as those of principals of some other Jefferson County public schools.

The petitioner insists that under the provisions of Section 2, Article 7, Chapter 75, Acts of the Legislature, 1947, Regular Session (Michie's Annotated Code, 1949, Chapter 18, Article 7, Section 2), he is entitled to receive a total monthly salary, during the 1948-1949 school year of nine months, of $474.00, instead of $400.00 per month, and a total monthly salary of $481.50, during the 1949-1950 school year of nine months, instead of $474.00 per month. The part of his claim which relates to the 1948-1949 school year is itemized in this manner: $225.00 basic salary, as specified in the statute; $10.00 additional basic salary fixed by the board; $96.00 for sixteen years experience at the rate of $6.00 per month for each year of such experience as specified in the statute; $24.00 for such experience at the rate of $1.50 per month for each year, fixed by the board; and $119.00 per month, advanced salary based upon the supervision by the petitioner of fourteen teachers at the [135 W.Va. 352] two consolidated schools at which he served as principal. The difference claimed by the petitioner between the monthly amounts of $474.00 demanded and of $400.00 paid is $74.00 for each of the nine months of the 1948-1949 school year, or $666.00. The other portion of his claim relates to the school year 1949-1950 and involves two items: $102.00 for seventeen years experience, instead of $96.00 paid him for sixteen years experience, at the rate of $6.00 per month for each year of experience as specified in the statute, a difference of $54.00 for

Page 582

that school year, and $25.50 for seventeen years experience, instead of $24.00 paid him for sixteen years experience, at the rate of $1.50 per month for each year, fixed by the board, a difference of $13.50 for that school year, or a total amount of $67.50. The aggregate of the items of $666.00 for the school year 1948-1949, and of $67.50 for the school year 1949-1950, is $733.50, and constitutes his claim in its entirety. For the year 1949-1950 he was paid his basic salary of $225.00 per month, as specified in the statute; $10.00 per month additional basic salary fixed by the board; $119.00 per month, advanced salary or increment, based upon his supervision of fourteen teachers; and the monthly sums of $96.00 and $24.00 based on his experience of sixteen years, or a total sum per month of $474.00. He contends that he should have been paid an additional $7.50 per month, on account of his seventeen years experience, or a total of $481.50 per month. The difference between the amount paid and the amount claimed by him for the 1949-1950 school year is $67.50.

In addition to his assertion that he is entitled, by virtue of the provisions of Section 2, Article 7, Chapter 75, Acts of the Legislature, 1947, Regular Session, to the payment of his claim, the petitioner alleges that the defendants have refused, and now refuse, to pay him upon the same basis and upon the same scale as they have paid, and now pay, white principals who occupy similar positions in other schools in Jefferson County, and that the conduct of the defendants, in the particulars indicated, constitutes [135 W.Va. 353] unjust and illegal discrimination against him on account of his race and color.

By their answer the defendants deny the claim of the petitioner to any sum of money and his allegations that they have practiced racial...