Talton v. Dickinson

• Decision Date: 13 May 1954
• Docket Number: 7 Div. 208
• Citation: 261 Ala. 11,72 So.2d 723
• Parties: TALTON et al. v. DICKINSON.
• Court: Alabama Supreme Court

Page 723

72 So.2d 723

261 Ala. 11

TALTON et al. v. DICKINSON.

7 Div. 208.

Supreme Court of Alabama.

May 13, 1954.

Lee Porter and Roy D. McCord, Gadsden, for appellants.

Lusk, Swann & Burns, Gadsden, for appellee.

SIMPSON, Justice.

This a declaratory judgment proceeding at law filed by the appellants as taxpayers and qualified electors of Etowash County, Alabama, who voted in the 1952 Democratic primary election against the appellee, who became the Democratic nominee for superintendent of education for said county. The complaint, filed before the holding of the next ensuing general election, sought a determination of whether or not (a) said appellee Dickinson was entitled to receive a certificate of eligibility from the State Superintendent of Education under the applicable statutes; (b) whether or not he would be eligible if elected in the coming general election to serve in the office of superintendent of education of the county; and (c) whether if qualified for said office he would on account of age (attaining seventy years after taking office) be ineligible to serve his full term. From a judgment below sustaining the demurrer to the complaint this appeal has proceeded.

We are impressed that appellants have failed to show by their complaint any justiciable rights in the premises to invoke the jurisdiction of the court for a declaratory judgment. In view, however, of a prevailing opinion of the Attorney General, we have thought it proper to respond to (a), the first question. See Vol. 36, Quarterly Report of Attorney General of Alabama, July 1, 1944-September 30, 1944, pp. 16, 19.

The first question has been posed by reason of the contention of appellants that some duty devolved upon the State Superintendent of Education to determine whether or not the appellee met the qualifications as to age imposed by the Teacher Retirement Act. We regard the contention as untenable. Code 1940, Title 52, § 103, as amended, pertinently provides:

'No person shall be eligible * * * for political party nomination, or for election to the office of county superintendent of education of any county who does not hold an Alabama certificate in administration and supervision based upon requirements established by the state board of education for such certificate, and who does not submit proof to the state superintendent of education of three years of successful educational experience as teacher, principal, supervisor, superintendent, educational administrator, or instructor in school administration during the five years next preceding his * * * election * * *.'

Section 324, Title 52, as amended, provides the minimum requirements for a certificate of administration and supervision, i. e., graduation from a teachers college or equivalent education and three years of successful teaching experience during the five years preceding the issuance of the certificate. Section 109 of said title provides that any person possessing the qualifications prescribed by law for such a certificate shall be entitled to have a certificate signed by the State Superintendent of Education upon having made application in writing and submitting satisfactory proof that he is so entitled, whereupon it shall be the duty of the State Superintendent of Education on making such showing to forthwith issue the same. It is our opinion from a consideration of these statutes that no duty devolved upon the State Superintendent of Education, when issuing the certificate required by § 109, to ascertain whether or not a candidate for the office of county superintendent of education meets the qualifications as to age, if any, imposed by the Teacher Retirement Act. On the contrary, by the provisions of said § 109, the appellee was entitled to a certificate from the State Superintendent of Education upon a satisfactory showing that he was possessed of the qualifications for a certificate of administration and supervision and had the required educational experience. Section 104 of said title, as pertinent, provides:

'* * * before any person shall qualify as a candidate for or for the nomination of a political party as a candidate for the office of county superintendent of education for a county in which such officer is elected by the qualified voters of the county, such person shall file with the probate judge a certificate signed by the state superintendent of education that such person holds a certificate of administration and supervision as required by the law prescribing the qualifications of a county superintendent of education. * * *'

We think it clear on a construction of all of the related provisions of the law, supra, that § 109 cannot be interpreted to mean that the State Superintendent of Education, upon issuing the necessary certificate, is required to determine the eligibility of a candidate. His acts are merely ministerial to perform the requirements of the statute. Such State Superintendent would not therefore be required to ascertain whether or not a candidate met the additional qualifications, if any, as to age imposed by the Teacher Retirement Act.

The second inquiry, (b), seeks a determination of whether the appellee was ineligible to serve any portion of the term of the office for which he was nominated. It is alleged that sixteen months before the term of office for which the appellee was nominated shall have been completed, he would attain the age of seventy years. It is the appellants' contention that under the Teacher Retirement A...