" Parenthetically the Kentucky statute further provides that, if the board and the county superintendent cannot agree upon a principal, the board may appeal to the board of education and the decision of that body shall be final. Beverly v. Highfield, 307 Ky. 179, 209 S.W.2d 739 (1948). Smith v. Beverly, 314 Ky. 651, 236 S.W.2d 914 (1951), summarizes the Kentucky interpretation: ". . . it is the mandatory duty of a board of education to elect a recommendee of its superintendent, if such recommendee possesses the necessary moral and educational qualifications; and, in passing on any recommendations made by its superintendent, no board has the right to arbitrarily reject a recommendee, but it is limited in its right of rejection, in the exercise of sound discretion, to determine whether the recommendee is morally fit or educationally qualified for the position to which he is recommended." In West Virginia, it was held in Cochran v. Trussler, 141 W. Va. 130, 89 S.E.2d 306 (1955), as follows: "The statute plainly contemplates an agreement between the County Superintendent of Schools and the Board of Education upon all persons employed in those capacities.
In a number of cases, not involving continuing contract questions, this court held that the board of education cannot reject the superintendent's recommendation for appointment of a teacher except upon a determination that the person recommended is morally unfit or educationally unqualified for the appointment. See Smith v. Beverly, 314 Ky. 651, 236 S.W.2d 914. However, it was held also that if the board votes to reject a recommended appointment, without the determination above mentioned, the rejection is valid if the superintendent thereupon withdraws the application, which withdrawal may be presumed from his recommending another appointee instead of insisting upon his initial recommendation.
The basis of personal liability is the failure to perform a ministerial duty, and the board is exempt from liability where it has paid another teacher placed in the position. Cottongim v. Stewart, 283 Ky. 615, 142 S.W.2d 171; Duff v. Chaney, 291 Ky. 308, 164 S.W.2d 483; Smith v. Beverly, 314 Ky. 651, 236 S.W.2d 914; Cooksey v. Board of Education of Fairview Ind. School Dist., Ky., 316 S.W.2d 70."
The basis of personal liability is the failure to perform a ministerial duty, and the board is exempt from liability where it has paid another teacher placed in the position. Cottongim v. Stewart, 283 Ky. 615, 142 S.W.2d 171; Duff v. Chaney, 291 Ky. 308, 164 S.W.2d 483; Smith v. Beverly, 314 Ky. 651, 236 S.W.2d 914; Cooksey v. Board of Education of Fairview Ind. School Dist., Ky., 316 S.W.2d 70. The core of the case is whether or not the plaintiff had a "continuing contract status" on March 31, 1959, when she was notified she would not be re-employed.
Under the circumstances the members of the Board are personally liable for Mrs. Cooksey's salary. Cottongim v. Stewart, 283 Ky. 615, 142 S.W.2d 171; Smith v. Beverly, 314 Ky. 651, 236 S.W.2d 914. On the appeal the judgment is reversed insofar as it denied Mrs. Cooksey her salary for 1955-56 and the case is remanded with directions that a judgment on this phase of the case be entered not inconsistent with this opinion.
es vital sections of the act pertaining to teachers and insist that in decisions involving similar facts it has been emphasized that no contract under the act may be entered into between the board and a teacher without the prerequisite recommendation of the superintendent and that the provisions of KRS 160.370 and 160.380, which prescribe the powers of the superintendent, are controlling. The superintendent, as executive agent of the board, has broad powers and this court has, in a number of cases, given full importance to maintaining the condition precedent that appointments, promotions and transfers may be had only upon the recommendation of the superintendent to the board; Rynerson v. Mercer County Board of Education, 244 Ky. 292, 50 S.W.2d 567; Johnson v. Elliott County Board of Education, 245 Ky. 834, 54 S.W.2d 382; Hudson v. Ohio County Board of Education, 253 Ky. 709, 70 S.W.2d 375; Amburgey v. Draughn, 288 Ky. 128, 155 S.W.2d 740; Duff v. Chaney, 291 Ky. 308, 164 S.W.2d 483; Smith v. Beverly, 314 Ky. 651, 236 S.W.2d 914, and we are not unmindful of the decisions had and the language used in the cases of Payne v. Bush, Ky., 249 S.W.2d 789; Payne v. Stevens, Ky., 251 S.W.2d 469; and Beverly v. Highfield, 307 Ky. 179, 209 S.W.2d 739. Unless these cases may be truly distinguished in fact, we have only the alternative of following them or of overruling them. We have no inclination to depart from the cases which interpret the provisions of KRS 160.370 and 160.380 dealing with the powers of the superintendent and which affirm the broad powers given to him by the legislature, but the question of the extent of his powers is not presented here. As we see it, we must deal with the question of whether or not when the teachers were employed for the sixth year, that contract was in fact a continuing contract regardless of what it was called.