Opinion
No. 34255.
October 28, 1940.
1. MANDAMUS.
Petitioner seeking to compel county superintendent of education by mandamus to issue a pay certificate for services rendered by petitioner as superintendent of a consolidated school for a particular month could not invoke the remedy of mandamus without showing a clear right to that particular relief.
2. MANDAMUS.
Where petitioner, at time he filed his petition to compel county superintendent of education by mandamus to issue a pay certificate for services rendered as superintendent of a consolidated school for a particular month, had received amount in controversy in excess of any specified amount of salary contracted for, the issuance of a certificate was unauthorized, and petitioner could not retain the proceeds thereof as against the county and at the same time compel superintendent by mandamus to issue to him the additional certificate prayed for as an obligation of the county.
3. MANDAMUS.
Though the writ of mandamus is a remedy at law, the right to relief is governed by equitable principles, and the court will not use that extraordinary process in aid of the petitioner unless it clearly appears that it would be equitable to do so.
4. MANDAMUS.
Where county superintendent of education was confronted with probable deficit in school funds for the scholastic year and with resultant necessity of reducing salaries before end of term to keep within budget allowed when issuance of pay certificate for January, 1940, was demanded by consolidated school superintendent, county superintendent could not have been compelled by mandamus to issue certificates in excess of salary definitely and legally contracted for (Code 1930, sec. 6537 et seq.; Laws 1936, chap. 255).
5. CONTRACTS. Schools and school districts.
An agreement that consolidated school superintendent should receive an increase in salary above monthly salary definitely specified if funds available should be sufficient was invalid and unenforceable against county, where it rested entirely in parol, and amount of extra compensation to be paid was not specified before the services were rendered (Code 1930, secs. 6537 et seq., 6570, subd. 10, 6571; Laws 1936, chap. 255.)
APPEAL from the circuit court of Amite county; HON. R.E. BENNETT, J.
Jack H. Ewing, of Liberty, for appellant.
Appellee's duties and powers are clearly set out in Chapter 163, and particularly in Section 6570, of the Mississippi Code of 1930, and nowhere among these powers and duties is found authority for appellee to reach back into the administration of his predecessor and repudiate, alter, stir into, undo, or inquire into the acts of his predecessor.
A public officer's powers must be strictly pursued.
G. S.I.R.R. Co. v. Laurel Oil Fertilizer Co., 158 So. 778, 159 So. 838, 160 So. 564, 172 Miss. 630.
Should the court find that appellee had the authority to reach back into the administration of his predecessor and repudiate his predecessor's acts, his remedy was solely to look to his predecessor and his bondsmen, and the remedy resorted to in this case affirmatively appears in his plea to be wrongful and not provided for by law. This remedy was exclusive and precluded the remedy resorted to by appellee.
The method for fixing compensation to be paid to superintendents or principals and teachers of consolidated schools is provided for by Section 6611 of the Mississippi Code of 1930, wherein it is provided that such compensation is to be fixed by the trustees of the school and county superintendent of education. In the case at bar, the trustees of the school and Steele, County Superintendent of Education, fixed appellant's compensation for the 1939-1940 term, agreeing to pay him on the 1938-1939 basis, or $6.00 per actual teaching day, and, in addition, a bonus when and if it could be paid. The $156.24 in controversy was paid in accordance with this agreement, and was, according to law, fixed and agreed upon by the trustees of the school and county superintendent of education.
There is a presumption of law that every public officer does his duty and that he faithfully performs those matters with which he is charged. This presumption is strong and prevails until overturned by positive evidence, clear and most convincing.
22 R.C.L. 473, secs. 143 et seq; Brotherhood of Railroad Trainmen v. Agnew, 155 So. 205, 170 Miss. 604; Wood v. State, 142 So. 747, 169 Miss. 790; Trotter v. Frank P. Gates Co., 139 So. 843, 162 Miss. 569; Scott County v. Dubois, 130 So. 106, 158 Miss. 245; Slay v. Lowery, 119 So. 819, 152 Miss. 356.
It is further submitted that appellee, as county superintendent of education, was under a positive duty to pay appellant his January, 1940, salary.
Sec. 6570, Code of 1930, subsections (7) and (21).
The record shows clearly and undeniably that appellant earned his salary for January, 1940, that he was never paid it, and that no certificate ever issued to him reciting payment, either in whole or in part, of his salary for January, 1940, said salary, therefore, remains due and owing. J.T. Lowrey, of Gloster, and Gordon Gordon, of Liberty, for appellee.
It was the duty of the appellee to protect the school funds and the rights of the people of the county after he came into office; and if it appeared that any teacher had been paid more than he had earned, according to the salary as fixed for the term, that this amount should be charged to him and deducted out of his salary thereafter earned.
It is shown that on January 1, 1940 J.N. Steele, as superintendent of education, had issued pay certificates during the first six months of the term 1939-1940 to the amount of $57,000, and that there remained of the amount available, only the sum of about $44,000, to run the schools for the remainder of the fiscal year, and that a possible deficit was being faced for that school year under the contracts as then made, without any increase or bonus being paid. Not only is this true, but it is further shown by the testimony of appellee that there was no school money in the county depository with which to pay the certificate and that no warrant was issued on the pay certificate because of no funds in the depository and that the appellant took the pay certificate to the bank and borrowed on it. The issuance of this pay certificate was at a time when the county school funds were depleted and exhausted and at a time when there was a deficit to be faced for the year. Certainly the court was correct in view of the statutes of the state regarding these matters in holding that the appellant was not entitled to the writ of mandamus.
It clearly appears from our statutes that there must be a teacher's contract as the basis upon which the teacher is paid for his services rendered in the teaching of the school and that the superintendent's authority to issue pay certificates is controlled by these statutes and especially Section 6571 of the Code.
Secs. 6570 and 6571, Code of 1930.
Article 8 of Chapter 163 of the Code of Mississippi, 1930, and especially Sections 6610, 6611, and 6614 of the Code 1930 being under Article 8 of said Chapter 163 show that there cust be a contract in which the salary of the teacher is fixed and that the superintendent of education must make a record of this salary and a copy of this is filed in the chancery clerk's office as a guide to the chancery clerk in issuing the warrants.
We therefore earnestly insist that the appellee acted within the law and within the scope of his authority in refusing to issue to the appellant a warrant for his January salary when it was apparent to him from the records left in his office by his predecessor that the appellant had already been overpaid the amount of his January salary. That he, the appellee, was facing a possible deficit in the school funds available for the scholastic year 1939-1940. The appellee was right and the court was correct in holding that he was right in holding the appellant to the salary as fixed and shown by the record and in refusing to pay him his salary for January 1940 when he was then over paid on his salary.
When a contract had been entered into fixing the monthly salary of the appellant any payment to him in excess of this salary was in law the same as if no contract had been made, and this is especially true insofar as the excess payment is concerned. If this was not true the superintendent of education could pay to any one teacher, or any number of teachers, all of the funds in the county treasury or any part thereof that he desired, and call it a bonus, or call it additional salary, or call it anything that he desired. The appellant takes the position that such payment would be legal. If his position was correct, then there would be no need of a contract.
This suit was brought by the appellant to compel the appellee, by mandamus, as county superintendent of education, to issue to him a pay certificate for services rendered as superintendent of the Gillsburg Consolidated School in Amite County for the month of January, 1940. It appears that the appellee had entered upon the duties of his office on the first day of that month as the successor in office of J.N. Steele, who had, prior to the beginning of the scholastic year of 1939-1940, agreed with the trustees of the said consolidated school that he would pay to the appellant a salary of $120 per month for said scholastic session, and with the oral understanding that he would increase the salary thus contracted for if he should later find that the available funds for the scholastic year were sufficient to enable him to do so, but the amount of the proposed increase was not specified. The salary was regularly paid at the rate of $120 per month for the months of September, October, November and December, 1939.
On December 30, 1939, the outgoing superintendent issued to the appellant an additional pay certificate for the sum of $156.24, which recited that the same was for services rendered by him for the first, second, third and fourth months of the term. At the end of the month of January, 1940, the appellee declined to issue a pay certificate covering services rendered for that month, and he assigns as a reason for his refusal to do so the fact that the appellant had been paid the $156.24 in excess of the salary contracted for during the preceding months of the term.
Sub-section 10 of Section 6570 of the Code of 1930 requires that a county superintendent of education shall file with the chancery clerk, before issuing any pay certificate for the current term, a list of all of the teachers employed in the county, and the monthly salary of each, as shown by the contract made with each of them; and Section 6571 of the Code of 1930 requires that such county superintendents "shall fix the salaries of teachers so that the amount to be paid in salaries and other expenses for maintaining all the schools for one month shall not exceed that fractional part of the whole school fund which one month is of the whole number of months the schools are taught."
It is the contention of the appellant that the appellee had no right to inquire into the acts of his predecessor in office so as to question the appellant's right to the $156.24 for services rendered prior to the beginning of appellee's tenure of office, so as to offset the same against any salary that might have become due for services thereafter performed. But, be that as it may, the appellant cannot invoke the remedy of mandamus without showing a clear right to that particular relief. At the time he filed his petition in the premises, he had received the $156.24 in controversy in excess of any specified amount of salary theretofore contracted for in so far as the public records were concerned, and hence the issuance of the certificate therefor in his favor was unauthorized and illegal. He could not retain the proceeds thereof as against the county and at the same time compel its superintendent of education by mandamus to issue to him the additional certificate prayed for as an obligation of the county. While the writ of mandamus is a remedy at law, the right to such relief is governed by equitable principles, and the court will not use this extraordinary process in aid of the petitioner unless it clearly appears that it would be equitable to do so.
Aside from the fact that no definite amount of increase in salary was ever agreed upon with the school trustees and appellee's predecessor in office, and that there was no notation of record showing any agreement to pay more than $120 per month, the proof disclosed that when the issuance of the pay certificate for the month of January, 1940, was demanded, the appellee was confronted with a probable deficit in the school funds for the scholastic year and with the resultant necessity of reducing salaries before the end of the term in order to keep within the budget allowed, as required by law. He could not have been compelled by mandamus under such circumstances to issue certificates in excess of a salary at the rate of $120 per month for the entire scholastic year — the only amount definitely and legally contracted for within the meaning of chapter 163 of the Code of 1930 and chapter 255 of the Laws of 1936. It was held in the case of Whitehurst v. Smith, 170 Miss. 535, 155 So. 683, that under the requirements of Section 6610 of the Code of 1930, "it is an essential prerequisite to the issuance of a teacher's pay certificate that the teacher in a consolidated school shall have a legal contract with the superintendent of education." That section expressly provides, among other things, that "it shall be unlawful to issue a certificate for services rendered before the contract is made and signed." There are certain exceptions to this positive requirement of the statute, but those exceptions do not obtain here.
Although it appears in the case before us that the appellant may have been unwilling to accept the position as principal of the school for the scholastic year 1939-1940, except for the oral agreement that he should receive an increase in salary above the $120 per month, definitely specified, if the funds available should be sufficient for that purpose, and that he relied upon such agreement in good faith, nevertheless it will be readily seen that the agreement for such increase was invalid and unenforceable against the county for the reason, first, that it rested entirely in parol, and, second, it was void for uncertainty in that the amount of the extra compensation to be paid was not specified before the services were rendered.
Therefore, we are of the opinion that the proof failed to establish a right to the relief sought.
Affirmed.