Whitehurst v. Smith

• Decision Date: 11 June 1934
• Docket Number: 31272
• Citation: 155 So. 683,170 Miss. 535
• Court: Mississippi Supreme Court
• Parties: WHITEHURST v. SMITH

155 So. 683

170 Miss. 535

WHITEHURST v. SMITH

No. 31272

Supreme Court of Mississippi

June 11, 1934

Division B

1 MANDAMUS.

Superintendent of education who refused to issue contract to principal legally elected for two years could not be compelled by mandamus instituted at end of two-year period to issue principal a pay certificate where principal had no contract and had not taught (Code 1930, sections 6570, 6610, 6611).

2 MANDAMUS. Schools and school districts.

Where principal was denied contract through alleged unlawful action of superintendent, action would lie against superintendent and her bond, or person who unlawfully usurped teacher's place and received pay therefor, or, against both, but not against public and its funds which could be made liable only in manner provided by law.

HON. JNO. M. KUYKENDALL, Judge.

APPEAL from circuit court of Tate county HON. JNO. M. KUYKENDALL, Judge.

Petition for mandamus by B. G. Whitehurst against Mrs W. C. Smith, superintendent of education. From a dismissal of the petition, petitioner appeals. Affirmed.

Affirmed.

J. F. Dean, of Senatobia, and Logan & Barbee, of Hernando, for appellant.

That a teacher has a valuable right which entitles him to mandamus, and that mandamus is the proper remedy in this cause is too well settled for argument.

Brown v. Owen, 75 Miss. 324; Whitman v. Owen, 76 Miss. 783; Baria v. Alexander, 158 Miss. 557, 130 So. 754; State v. Morgan, 141 Miss. 585, 106 So. 820; Lander v. Talbert, 121. Miss. 592, 83 So. 748; Strickland v. Copeland, 166 Miss. 244.

Nothing in the petition sustains this ground of demurrer. The mandamus is sought because the school district cannot be sued.

Landers v. Talbert, 121 Miss. 592, 93 So. 748.

No discretion of the superintendent of education is involved. The law requires the county superintendent to make a contract with teachers holding proper license when duly and legally elected, and the election must be reported to the county superintendent in due time, and to pay the teacher. This is mandatory.

State v. Alexander, 158 Miss. 557.

The case of Strickland v. Copeland, 166 Miss. 244, settles this case.

It might be suggested that appellant was guilty of laches, that while he had the unquestioned right to teach the school he should have either enjoined the other teacher from teaching the school, or filed this mandamus suit at once to force the county superintendent to contract with him. In the Copeland case it was not held to be laches, and why should a different rule apply in this case. The statute of limitations applies in mandamus as in other cases but in addition to this the authorities hold that an action of mandamus will not lie when proceedings are pending in court for the adjudication of the question involved.

19 A. & E. Ency. Law, 756; 38 C. J. 832 and 833 and notes.

But it may be said that the delay of action by appellant caused loss by the payment of the salary to another, but payment to another when illegal is no defense to an action of mandamus.

38 C. J. 717 and 718, and notes; Hebron Bank v. Lawrence County, 109 Miss. 397, 69 So. 209.

The salary here was unquestionably due appellant and the fact that the county superintendent of education arbitrarily and illegally refused to contract with him and pay him his salary, and illegally paid it to another, will not estop him from now claiming and collecting his salary.

E. D. Dinkins, of Senatobia, for appellee.

It was said in Lusk v. Seal, 129 Miss. 235, that " the concession of fact or law in a decision by this court does not thereby decide the law point, for it is merely a concession which may or may not be upheld as the law in the case subsequently when the question is raised and presented for our determination."

Larson v. First National Bank, 66 Neb. 595, 92 N.W. 729.

I respectfully suggest to the court that the question presented by this appeal should be held moot as, preliminary to requiring the issuance of pay certificates to Whitehurst, the appellant, the petition seeks to require the superintendent to enter into a contract with him to teach the school for the terms then past.

Yates v. Beasley, 133 Miss. 301, 97 So. 678.

It is a principle governing mandamus proceedings that if anything preliminary to the issuance of the writ remains to be done, that it will not be ordered. In this case the petition seeks to require the superintendent to enter into a contract with him to teach the school for the terms mentioned. This, of course, was impossible after the expiration of the terms and after the school had actually been taught by another.

American Oil Co. v. Bishop et al., 163 Miss. 256, 141 So. 271; Woods v. State, 142 So. 747.

In Ayres v. Board of Trustees, 134 Miss. 363, 98 So. 847, this court held that agricultural high schools are agencies of the state and as such are not subject to suit.

Nabors v. Smith, 135 Miss. 608, 100 So. 177.

A suit against a public officer is a suit against the state.

18 R. C. L. 115, sec. 27; 25 R. C. L. 413, sec. 50; L. & N. R. R. Co. v. Burr, 44 L. R. A. (N. S.) 202; Hampton v. State Bbard of Education, 42 A. L. R. 1456, 105 So. 323; State v. Board of Liquidation, 67 So. 370.

Officer may not be paid unless service is rendered.

McAfee v. Russell, 29 Miss. 84; Swan v. Buck, 40 Miss. 268; Bowlin v. Franklin County, 152 Miss. 534, 120 So. 453.

OPINION

Griffith, J.

Appellant was elected as principal teacher of the Greenleaf Consolidated School by the legal trustees of said school for the year 1930-31 and again for the year 1931-32. The superintendent of education took the position that one of the trustees who participated in the election of appellant was not a legal member and appointed another person as ...