Stokes v. Newell

• Decision Date: 25 February 1935
• Docket Number: 31590
• Citation: 159 So. 540,172 Miss. 289
• Court: Mississippi Supreme Court
• Parties: STOKES v. NEWELL et al

159 So. 540

172 Miss. 289

STOKES v. NEWELL et al

No. 31590

Supreme Court of Mississippi

February 25, 1935

Division B

Suggestion Of Error Overruled April 8, 1935.

APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER Judge.

Mandamus by Clara Stokes against H. T. Newell and others. From a judgment dismissing the petition, petitioner appeals. Affirmed.

Affirmed.

L. C. Hallam, of Cleveland, and Butler & Snow, of Jackson, for appellant.

All statutes involved or pertinent to this controversy will be found in chapter 163, Mississippi Code of 1930. It is not thought that any statutes passed subsequent to the code are involved or pertinent.

In the absence of statute requiring the contract to be in writing, an oral contract is sufficient.

56 C. J. 392; Page on Contracts, sec. 1635; 6 R. C. L. 639; 13 C. J. 303.

It seems clear that when appellant was elected, notified of her election, accepted the appointment and entered upon the discharge of the duties of her place and position, a valid contract was made between her and the board of trustees.

56 C. J. 389; Brown v. Owen, 75 Miss. 319; Whitman v. Owen, 76 Miss. 783; State v. Morgan, 141 Miss. 585; State v. Alexander, 158 Miss. 557.

Under section 3348, Code of 1930, mandamus is a proper remedy in cases of this kind "where there is no plain, adequate and speedy remedy in the ordinary course of law."

Ayers v. Board of Trustees of Leake Co., 134 Miss. 363; Neighbors v. Smith, 135 Miss. 608; Stringer v. Roper, 152 Miss. 559; 56 C. J. 427.

The board in refusing appellant the right to teach was acting officially and appellant is without recourse as against them.

Reese v. Isola State Bank, 140 Miss. 355; Pidgeon Thomas Iron Co. v. Leflore County, 135 Miss. 155; Donald v. Stoffer, 140 Miss. 752.

That mandamus is a proper remedy in cases of this kind is definitely settled by such cases as:

Brown v. Owen, 75 Miss. 319, 23 So. 35; Whitman v. Owen, 76 Miss. 783, 25 So. 669; State v. Morgan, 141 Miss. 585, 106 So. 820; state v. Alexander, 158 Miss. 557, 130 So. 754; 38 C. J., sec. 337, at page 734, and sec. 345, at page 738.

That she is not precluded by reason of her not teaching when she was prevented from teaching by the trustees seems to be established by the authorities.

56 C. J. 415; Singleton v. Austin, 27 Tex. Civ. App. 88, 65 S.W. 686; Randolph v. Sanders, 22 Tex. Civ. App. 331, 54 S.W. 621; Charleston School Tp. v. Hay, 74 Ind. 127; Wood v. Consolidated School Dist., 7 S.W.2d 1018; Leclerc v. Perigord School Dist., 19 Sask. L. 345, 3 Dom. L. 578; Smith v. Marion County School Dist., 89 Kan. 225, 131 P. 557, Ann. Cas. 1914D 139; Phelps v. Wayne County School Dist., 302 Ill. 193, 134 N.E. 312, 21 A.L.R. 737; James v. Troy School Tp., 229 N.W. 750; 56 C. J. 420; McDougald v. Special School Dist., 174 Ark. 963, 298 S.W. 193; School Dist. v. Hale, 15 Col. 367, 25 P. 308; Park v. Des Moines County Independent School Dist., 65, Iowa, 209, 21 N.W. 567; Underwood v. Prince George County School, 103 Md. 181, 32 A. 221; Stenson v. New York Board of Education, 49 A.D. 143, 63 N.Y.S. 128 (Rev. 27 Misc. 687, 58 N.Y.S. 734, and aff. 165 N.Y. 431, 59 N.E. 300); Carter County School Dist. v. Morgan, 127 Okla. 193, 260 P. 46; Creek County School Dist. v. Ferguson, 45 Okla. 680, 146 P. 711; Hart v. Gettysburg Consolidated Independent School Dist., 53 S.D. 381, 220 N.W. 869.

The right to the writ is not affected by the expiration of time.

Brown v. Owen, 75 Miss. 319, 23 So. 35; Whitman v. Owen, 76 Miss. 783, 25 So. 669; State v. Morgan, 141 Miss. 585, 106 So. 820; State v. Alexander, 159 Miss. 557, 130 So. 754.

If appellant is not entitled to relief by mandamus, it would seem that she could obtain no relief whatever.

56 C. J. 382, 398, 400-1, and 421; Underwood v. Prince George County School, 103 Md. 181, 32 A. 221; Stenson v. New York Board of Education, 49 A.D. 143, 63 N.Y.S. 128; McClure v. Whitney, 120 Miss. 350; State ex rel. Brown v. Christmas, 126 Miss. 358; 46 C. J. 927 et seq.; City of Okolona v. Chickasaw, 157 So. 690.

It is clear that in some instances, at least, teachers are to be paid on the orders of the trustees where no actual services are rendered.

Charleston School Township v. Hay, 74 Ind. 127; Randolph v. Sanders, 22 Tex. Civ. App. 331, 54 S.W. 621; Singleton v. Austin, 65 S.W. 686.

W. E. Morse and B. B. McClendon, both of Jackson, for appellees.

56 C. J., page 388, holds that a mere notification of a teacher that she had been elected does not constitute an employment or contract.

Mandamus would not lie in this case to compel the issuance of a contract, the suit was not brought, until after the school term had expired, the question of a contract, at that time, was a moot question.

We agree that the appellant has no recourse against the individual trustees, as was announced in the case of Reese v. Isola Bank, 140 Miss. 355. We do not think that mandamus is the proper remedy, in this case, to compel the writing of a contract, and of fixing a salary, when the duties were never agreed upon, by the trustees, and the principal, and the compensation to be paid was never agreed, or understood between the parties.

If the appellant had a contract and had rendered the public service, and the trustees had failed to pay, she could have, by mandamus, compelled the issuance of a warrant, but she is seeking hereby, by mandamus, to compel the writing of a contract and compel the issuance of a warrant, although the service has not been rendered.

Hoskins v. Board of Supervisors, 51 Miss. 406.

The contracts for the teachers would have to be in writing, as provided for in section 6610, Code of 1930, and the time within which she could teach had expired, before she sought, by mandamus, to compel the issuance of a contract to her, when the question was a moot question, and the services could not be rendered.

Herbon Bank v. Lawrence Co., 109 Miss. 397, 69 So. 209.

The question is a moot question, in as far as services are concerned, and the money being public money could not be paid, unless services were rendered.

State ex rel. v. Lawrence, 121 Miss. 338, 83 So. 532; Alex Loeb, Inc., v. Board of Trustees, 158 So. 333; Tucker Printing Co. v. Attala Co., 158 So. 336.

Argued orally by Geo. Butler, for appellant, and by W. E. Morse, for appellees.

OPINION

Ethridge, P. J.

The appellant filed a petition for a writ of mandamus in the circuit court of Hinds county against the trustees of the Jackson municipal separate school district of the first district of Hinds county, commonly called the Jackson separate school district. It was alleged that the defendants were trustees, and that the school district was lawfully established as a separate school; that petitioner is, by profession, a school teacher and school administrator, holding a first-grade license, and that she has been employed, since September, 1918, in the Jackson separate school district as a teacher and school administrator; that she was elected or employed as principal of the Central Junior High School for the years 1933-1934, at an annual salary of one thousand six hundred dollars, payable monthly at the rate of one hundred sixty dollars per month for the period commencing September 30, 1933, and ending July 30, 1934.

That prior to May 9, 1933, the board of trustees of said municipal school district had in effect a salary schedule as the basis of payment for all teachers, under and by virtue of which no teacher in the white schools received less than eight hundred dollars per annum. It was further alleged that on May 9, 1933, petitioner was re-elected by the board of trustees of the school district, as then constituted, to the position as principal of the Central Junior High School for the session of 1933-1934, along with and at the same time as all other white teachers and principals were elected, and with the understanding that the salary schedule and basis of pay for all teachers would be fixed as soon as the annual budget for the 1933-1934 session had been made and approved. That in due course petitioner was notified of her election, accepted the employment, and prior to the 25th day of July, 1933, entered upon the discharge of the preliminary duties of her office; that no written contract was made, but petitioner averred, from information and belief, that same was not necessary, and not required by law. Petitioner further averred that by reason of the election and her acceptance of the position, she became vested with a valuable right in and to the place and position to which she had been elected, to discharge the duties of the place, and to receive the salary and compensation which the trustees of said municipality fixed for the session of 1933-1934. It was further alleged that prior to July 1, 1933, the trustees determined the amount of money required for school purposes of the district for the session, and submitted same to the mayor and board of commissioners of the city, who, on the 5th day of September, 1933, approved the same. That the board of trustees made no changes or alterations in the salary schedule or basis of pay for the 1933-1934 session, except under date of August 21 they directed that beginning teachers without experience would be paid seventy dollars per month for the first year of service, but conformed to the...