Opinion
No. 27634.
February 11, 1929.
SCHOOL AND SCHOOL DISTRICTS. Suit was not maintainable against trustees of consolidated school for balance due on salary for teaching ( Hemingway's Code 1927, sections 8713, 8719, 8720, 8752, and section 8737, subsec. ( g)).
Suit cannot be maintained against school trustees of consolidated district to recover balance due on salary for teaching school; there being no express or necessarily implied authority therefor by virtue of Hemingway's Code 1927, sections 8713, 8719, 8720, 8752, and section 8737, subsec. (g).
APPEAL from circuit court of Marion county, HON. J.Q. LANGSTON, Judge.
Ford McGehee, for appellants.
This was a consolidated school district and these appellants were the trustees of that district. This consolidated school district was a governmental subdivision and agency exercising governmental functions, and could not be sued in the absence of a statute authorizing such a suit. Nabors v. Smith, 135 Miss. 608, 100 So. 177. There being no such statute the court ought to have peremptorily instructed the jury to find for the defendants, and it was error of the court not to grant this peremptory instruction. In the Nabors-Smith case, the court held squarely that the trustees of a consolidated school district are not subject to suit. It cannot be contended that the school code, found in chap. 283, Laws of 1924, confers any authority to sue a consolidated school district or its trustees in a case of this kind. Subsec. G of sec. 102, does not grant that authority.
This particular subsection was designed primarily in aid of the general subject of the transportation of pupils, as provided for in section 102 of the act, yet the broadest construction that could be placed upon this provision would be that it conferred the authority to sue an officer, trustee or contractor for failure to perform some duty imposed by the provisions of said chapter 283, or the failure to perform the duties imposed by the terms of the contract entered into in relation to the transportation of pupils. The subject-matter of this suit does not relate to any transportation contract, but is a suit for teacher's salary. The subject-matter of the suit does not arise out of any dereliction of duty imposed upon the trustees of this school by the terms of this act. The trustees did not have the custody of any of the school funds, and the school funds were not paid out upon their order, but on the contrary the teacher's salaries are paid by a warrant on the depository issued by the clerk of the board of supervisors on a pay certificate duly attested by the county superintendent. The failure of the county superintendent to issue the pay certificate is not a dereliction of duty on the part of the board of trustees. There cannot be maintained under this provision, giving it the broadest construction that can be placed upon it, any suit against the board of trustees except in connection with a matter about which they have been derelict in their duty as imposed upon them by the terms of this act. In other words, the bar to bring suits has not been lifted generally, but only in two special cases. This suit does not come within the purview of either of these two classes, and therefore the suit is not maintainable.
R.H. Dale, for appellee.
Appellants contend that neither the consolidated school district nor the trustees thereof acting in an official capacity, can be sued, and in support of their contention cite Nabors v. Smith, 135 Miss. 608, 100 So. 177. The Nabors case has no application to the case at bar for the reason that it was decided before our code of school laws was enacted, which were effected July 1, 1924, chap. 283, Laws of 1924. None of the school laws in existence now with reference to consolidated schools were in existence at the time the Nabors' case was decided. At that time there was no provision for the trustees to select a teacher, or to fix salaries, or to do any of the things that is now required of them under the present law, nor could they compel a teacher, who had contracted to teach a school to perform the duties under his contract if he did not wish to do so. Under the present law the trustees select the teacher; the county superintendent of education contracts with him, and the trustees and the county superintendent fix the salary of the teacher. When this is done, and the teacher accepts employment under the contract, and enters upon the duties as teacher, he cannot, under penalty of having his license revoked, refuse to teach the school. Sec. 85, chap. 283, Laws of 1924.
If the trustees can contract with a teacher and can compel him to teach the school under penalty of forfeiting his license, why should the teacher not have a corresponding right to enforce his contract, and recover for a breach thereof on the part of trustees? In other words, if the trustees are given the express authority to contract with the teacher, and then stand over him with a whip in their hands and compel him to carry out his contract, certain it is that the teacher's authority to compel the trustees to carry out their part of the contract, and pay for the services rendered thereunder flows by necessary implication. "A teacher who has rendered services to a district may recover reasonable compensation therefor even though he had no contract or agreement with the board in regard thereto, for the district will not be permitted to avail itself of the fruits of his labor and then refuse to pay for it." 24 R.C.L. 615.
Argued orally by R.D. Ford, for appellants, and R.H. Dale, for appellee.
The appellee, Roper, filed a suit for one hundred and sixty-two dollars and fifty cents, balance due on salary for teaching school, against the trustees of the Improve consolidated school in a court of a justice of the peace, where judgment was rendered in favor of the appellants. Thereupon the appellee appealed therefrom to the circuit court, where a trial by jury was had, resulting in a verdict in his favor for the balance sued for; and, from this judgment, appellants appeal here.
The effect of the testimony is that there is a dispute as to the terms of the contract made between the appellee and the appellants. The defendants urge here that trustees of a consolidated school district cannot be sued, as no authority to sue has been granted by the legislature to parties dealing with trustees of a consolidated school district. Appellants assign only one point for discussion, and that is that they were entitled to a peremptory instruction for the above-named reason.
It was settled in Ayres v. Agricultural High School, 134 Miss. 363, 98 So. 847, that under our school laws the trustees of an agricultural high school were not subject to suit. In the case of Nabors et al. v. Smith, 135 Miss. 608, 100 So. 177, what was said in the Ayres case, supra, was approved by this court as to consolidated school districts; and Judge ANDERSON, as the organ of the court said:
"A consolidated school district under our statutes, equally with an agricultural high school, is a governmental subdivision and agency exercising governmental functions. Neither the state nor any of its governmental subdivisions exercising such functions is subject to suit unless expressly or by necessary implication it is so provided by statute. Those dealing with the state or any of its governmental agencies do so with the understanding that any rights they may have are not enforceable in the courts unless the law so authorizes. All contracts and undertakings by the state or its governmental subdivisions are obligations of honor alone, and there is no remedy in the courts given the other party unless the law so provides either expressly or by necessary implication."
Subsequent to the decision in the Nabors Case, supra, chapter 283, Laws 1924, was enacted; and we shall call attention to the material changes found in said chapter, with the statement that upon examination of the sections therein, with the view of ascertaining whether or not any authority is given by necessary implication to any person to sue consolidated school districts, we find that no express authority is given for bringing a suit with a view of obtaining a money judgment against the trustees of a consolidated school district.
Section 78, chapter 283, Laws 1924 (Hemingway's 1927 Code, section 8713), lodges the power in the county superintendent and the board of trustees of a consolidated school district to fix the salary of a school-teacher. Nor is there any necessary implication that the board of trustees alone have control or custody of school funds.
Section 84 of said laws (Hemingway's 1927 Code, section 8719) furnished a plan by which a teacher under contract may be released from such by the consent of the majority of the school trustees submitted to the county superintendent of education.
Section 85 of said laws (section 8720, Hemingway's 1927 Code) imposes a penalty, under certain conditions, upon a teacher of a consolidated school district who fails, refuses, or neglects to comply with his contract; the penalty of the defaulting teacher being the revocation of his license to teach for a period of one year. There can be found no express authority to sue, nor is the authority granted by necessary implication in either of these two sections.
Section 102 of said chapter (Hemingway's 1927 Code, section 8737, subsec. (g), authorizes a suit under certain conditions. This section is a scheme to provide for the transportation of certain pupils to and from the schools, and provides for a written agreement between the county superintendent and the trustees on the one hand, and the party contracting to transport the pupils on the other hand; for a bond to be given on the part of the contractor; and permits the board of education to make certain rules and regulations as to the duties and qualifications of the driver, as to governing the conduct of the pupils, the management of such schoolhouse, and the transportation of the pupils. It provides further as to the driver's duty at railroad crossings, as to establishing routes, as to transporting crippled children under certain conditions, and also permits the use of railway trains for transportation, and announces that a contract is void if the trustees making such contract are interested directly or indirectly, closing with subsection (g), which reads as follows:
"The failure of any officer, trustee or contractor to perform the duties imposed on him by the provisions of this act, or by the terms of the contract entered into hereunder, shall subject him to mandamus or other appropriate proceedings in law or equity for final adjudication of the matter complained of, though the person aggrieved may have a concurrent remedy by appeal to the county superintendent, and from that official to the state board of education."
A close study of the section above quoted indicates that it was the purpose and intention of the legislature to provide a coercive remedy at law, or in equity, to be enforced against an officer, a trustee, or a contractor, in the performance of the duties imposed by the act; and in no sense is there an implication that a money judgment could be rendered against a board of trustees. They are not given exclusive control of any school funds, nor of any funds placed in their custody by this section. It is true that, in the case of Dear v. Bullock, 141 Miss. 643, 107 So. 197, this court held that a suit might be maintained by a patron against the trustees of a consolidated school district to cancel a contract for transportation entered into in violation of the statute, but the opinion does not intimate that a money judgment could be rendered. The section is simply coercive and restrictive in permitting a lawsuit of a particular character to be brought against the school trustees, and negatives the idea that such a suit for a money judgment could be so maintained.
The only other section which we think should be noticed is section 117 of said laws (Hemingway's 1927 Code, section 8752), which makes the trustees of a consolidated school district custodian of the property and grants to such trustees the authority to make school improvements and to give written orders to the county superintendent to issue pay certificates. In other words, the scheme is that when a school-teacher or other person performs services for such consolidated school districts, the trustees may ascertain the amount due and draw their order upon the county superintendent of education, who, in turn, will approve same and draw a pay certificate upon the proper fund through the clerk of the board of supervisors, who in turn, is authorized to issue a warrant, payable by the county treasurer from the proper funds. No express right to sue for a money judgment is granted in this section, nor is there any such implication.
We think that the school trustees are exercising the governmental power given them by the legislature, and, there being no express or necessarily implied authority given to an individual to sue them for a recovery of a money judgment, this suit cannot be maintained, and that the appellants, the school trustees, were entitled to the peremptory instruction requested, which was refused by the court below.
The other very serious question raised in this case, whether or not the board of trustees must act together in formal meetings, is pretermitted by us, as we deem it unnecessary to decide that question at this time.
Reversed, and judgment here for appellants.
Reversed.