Opinion
No. 32911.
November 29, 1937.
1. MANDAMUS.
A superintendent and teacher of line consolidated school could not compel trustees of school district to pay balance of salary allegedly due for services rendered, where no written, signed contract had been entered into, since it was a condition precedent to the public's liability for salary that terms of employment be evidenced by writing signed by parties as provided by statute, and, in absence of such contract, employment was not completed (Code 1930, sections 6578, 6610, 6611).
2. MANDAMUS.
That superintendent and teacher, whose employment was not evidenced by written, signed contract as required by statute, was seeking to recover earned salary, did not entitle him to mandamus compelling payment thereof by trustees of school district, since liability on doctrine of quantum meruit has no application to services rendered by a mere volunteer to the state or any of its political subdivisions (Code 1930, sections 6587, 6610, 6611).
3. COUNTIES.
Substantial compliance with the law by county boards of supervisors is a condition precedent to counties' liability for services, and doctrine of quantum meruit has no application to counties.
APPEAL from the circuit court of Oktibbeha county. HON. JOHN C. STENNIS, Judge.
Lavell Brown, of Starkville, for appellant.
Appellee's petition and exhibits fail to show a valid contract in that the purported contract executed April 22, 1936, by three members of the Board of Trustees of Maben Consolidated School District, as shown by Exhibit "A" to petition was not made with the consent or approval of the County Superintendents of Education, neither did they as such officials enter into the contract as exhibited, or any other written contract, and the lower court erred in overruling appellant's demurrer. The same should have been sustained in our opinion on the grounds therein stated, one of which was the petition does not show a valid contract.
Sections 6587, 6610, 6611, 6570, Code of 1930; Stringer v. Roper, 120 So. 460; Whitehurst v. Smith, 155 So. 683.
In this case we have a purported contract which does not meet the legal requirements as shown above in that the contract entered into by three members of the board of trustees extended over a period of time which was in excess of the number of months the school was taught the scholastic year, which is provided for in Section 6610. The contract was not in accordance with law for the further reason that the superintendents of education did not enter into the said contract as provided for by Section 6587, and further for the reason that the three members of the board of trustees had not the authority by law to obligate the public funds as they undertook to do, and no copy of the purported contract was ever filed with the superintendent of education.
The Mississippi Supreme Court, in State v. Alexander, 130 So. 754, says that: "Where several persons are authorized to perform public service, or to do an act of a public nature as an organized body, which requires deliberation, they must convene in a body, in order that they may have the counsel and advice of every member."
24 R.C.L., page 615, sec. 72.
No formal meeting can be shown at the time the three members of the Board of Trustees entered into the purported contract, one trustee signing at his store, being his place of business, and another did not sign at the same place.
McGaha v. Curlee, 169 So. 696.
The superintendent of education of Oktibbeha County could not legally issue a pay certificate because of the provisions of Section 6610 of the Mississippi Code of 1930 wherein it is said among other things: "It shall be unlawful to issue a certificate for services rendered before the contract is made and signed, etc." Said section further provides that: "It shall be the duty of the superintendent to make a contract in the form prescribed by the board of education with every licensed teacher who has been selected by the trustees according to law, or appointed by himself. The contract shall be signed in duplicate by the superintendent and by the teacher, each retaining one copy."
This purported contract was not made with the superintendent of education, or, the superintendent of education did not have a copy of said contract.
When the operative effect of the action sought to be coerced depends upon the co-operative action of a third person who is not before the court, the writ will not ordinarily be granted, as its issuance would ordinarily be nugatory, the court having no power to coerce the co-operation of such third person.
18 R.C.L. 140, sec. 56; Wood v. State, 142 So. 751; Whitehurst v. Smith, 155 So. 683.
G. Odie Daniel, of Starkville, for appellee.
Article 13, Mississippi Code 1930, Chapter 163 and beginning with Section 6638 and ending at Section 6652, alone regulates consolidated school.
The trustees have absolute control over the funds of the district, while the county superintendent of education has control over the common school funds of the county.
It may be true that the county superintendent of education is required, under Section 6610, to contract with teachers in consolidated schools but it does not say the contract must be in writing but, only, implies that it should. Furthermore, the superintendents of both counties did contract with appellee and paid him for his services, just as provided for in Section 6587 of the Code of 1930 and there is no suit for the part these counties were to pay. It has all been paid under the contracts, and inasmuch as the county superintendent is liable only for the part he agrees to pay his contract would be inapplicable to the case at bar.
Furthermore we contend that this section is only directory because the general law is that any contract for labor is good for one year, though it be oral.
In this case, the appellee had both a written contract with the trustees of the Maben Consolidated School, a verbal contract with the superintendents of education of two counties and had performed all the services required in that contract, and is only demanding pay now from those with whom he actually contracted.
All the court required in Whitehurst v. Smith, 155 So. 683, was "It is essentially prerequisite to the issuance of teachers pay certificates that the teacher in a consolidated school shall have a legal contract with the superintendent of education."
In this case we are not seeking the issuance of a pay certificate but only a certificate from the trustees that appellee had performed his duties as teacher, which no one is undertaking to deny. The only other thing to determine in this suit is that the suit must be filed before the school term is over, which was done in this instance.
For this court to hold that before a meeting of the board of trustees of consolidated schools would be legal, each member thereof would have to have a written notice of the meeting, with written notice of the purpose, would be to hold that the resolutions to be offered would have to be prepared in advance and a copy of these served, like a warrant to attend court, on each trustee. We do not believe that such is the law. We believe that when a trustee is informed of a meeting and the purpose thereof, and, especially, when they have no fixed time for their meetings, the law has been complied with when they meet and pass a resolution touching the subject matter of their meeting to which no objections are raised by a trustee.
Whenever the time comes in Mississippi that a teacher can be thus employed by a board of trustees holding a regular meeting in the school building, with the minutes written and approved, then with the consent of the superintendent of education of two counties enters upon the discharge of his duties as such teacher, teaches his school for six months and receives his pay from every source and then, when a new member is put on the board, a known enemy to the teacher, and because he controls two other members, refuses to pay a teacher from the only funds that are under the control of these trustees for the remainder of the term, I say whenever that time comes in Mississippi, the entire school laws should be blotted out and some competent authority directed to write a chapter of school laws that can be understood and put into practical application by the average man.
We have carefully examined the decisions of this court and believe that we are well within our rights and especially refer the court to the principles announced in:
Stokes v. Newell, 165 So. 542; Brown v. Owen, 75 Miss. 319; Whitman v. Owen, 76 Miss. 783; State v. Morgan, 106 So. 820; Campbell v. Warwick, 107 So. 657.
Appellee brought this action in the circuit court of Oktibbeha county against appellants as trustees of the Maben consolidated school district for a mandamus to force them to issue the necessary authority to pay him the balance claimed to be due him as superintendent and teacher of said school. There being no issue of fact, the case was tried before the judge, who rendered a judgment in favor of appellee, from which judgment appellants prosecute this appeal.
The Maben school is known as a line consolidated school; the school building is situated in Oktibbeha county and the school district is composed of territory in both Oktibbeha and Webster counties. During the scholastic year of 1936-1937 appellee was in charge of the school as superintendent, and taught therein as a "vocational Smith-Hughes" teacher. He claimed to have been selected for those positions by the board of trustees and the superintendent of each county for the term beginning July 1, 1936, and ending June 30, 1937, the salary to be $188 a month. He performed the duties of those positions and received a salary therefor until in the spring of 1937, when the board of trustees refused to further authorize the payment of his salary. At the time he was still in the performance of his duties, and this action was brought while he was so engaged. The refusal to continue to pay the salary was the result of a change in the personnel of the board of trustees.
There was no written signed contract entered into between appellee and the superintendents of education of the counties, fixing the terms of appellee's employment. Appellants' contention is that for that reason appellee's claimed employment was void, and that he is entitled to no compensation for his services although performed.
Section 6587, Code of 1930, provides, among other things in reference to line consolidated schools, that the trustees and teachers of such a school may reside in either county, and that the superintendents must previously agree upon the amount of salary to be paid, and each superintendent must contract with the teacher for a proportionate part of the salary. Section 6610 provides that the contract shall be signed in duplicate, each retaining a copy, and shall set out the name of the school, the position of the teacher, whether principal or assistant, and the monthly salary, and that it shall be unlawful to issue a certificate for services rendered before the contract is made and signed. Section 6611 provides that the salaries of principal and assistant teachers of consolidated school districts having a local levy (the one involved has such a levy) shall be fixed by the trustees and the county superintendents of education.
What was said in Whitehurst v. Smith, 170 Miss. 535, 155 So. 683, is in point in part, although that case is not controlling in full on the questions here involved. The court held that it was an essential prerequisite to the issuance of a pay certificate of a teacher in a consolidated school that such teacher have a legal contract with the superintendent of education; that section 6610, Code of 1930, provided that "it shall be unlawful to issue a certificate for services rendered before the contract is made and signed." One of the outstanding safeguards in the adoption of the school chapter of the Code was to provide for a permanent record covering the employment of school trustees, superintendents, and teachers of the schools, and the expenditure of public funds for school purposes. It was a condition precedent to the liability of the public for appellee's salary that the terms of his employment be evidenced by writing, signed by the parties thereto, as provided by the statute.
We do not reach the question of whether the action of the board of trustees employing appellee at the called meeting was legal. Conceding its legality, the employment was not completed in the absence of a written contract between the appellee and the superintendent of education. The present case is different from the Whitehurst Case on its facts in that appellee sought to recover earned salary. That makes no difference in law. Liability on the doctrine of quantum meruit has no application to services rendered by a mere volunteer to the state or any of its political subdivisions. The bench and bar are doubtless familiar with several cases decided by this court holding that that doctrine has no application to the counties — that a condition precedent to any liability by the counties was a substantial compliance by the boards of supervisors with the law.
Reversed and judgment here for appellants.