1. By the act of 1909 .(Civil Code, § 1490), at least ninety days before the day of election all candidates for the position of county *651school superintendent shall be examined by the president of the county board of education .or by some one appointed by bina or ■ the board for that purpose, upon written or printed questions furnished to the board by the State school commissioner. All applicants standing the examination who shall make 85 per cent, shall be declared eligible to hold the office of county school superintendent by the board of education. The commissioner must also be a citizen of the county for which he is 'elected. Civil Code, § 1491. At the time the applicant offered for election he had been declared by the county board qualified to hold the office' of county school superintendent for Liberty county. At the next general election for members .of the General Assembly, following his qualification, he was duly elected as prescribed by law. The Governor was authorized to issue to him a commission for the term of four years after the expiration of the incumbent’s term of office, which was declared in the petition, and admitted on demurrer, to be on May 7, 1912. Additional qualifications prescribed in the act approved August 21, 1911 (Acts 1911, p. 94), are not applicable to one who was elected at a general election prior to the passage of the ’act. Therefore, according to the petition, the applicánt was duly elected to the office of county superintendent of education of Liberty county.
2. The statute requires that the county school superintendent, elected pursuant to law, shall give bond with good security, payable to the county board of education, conditioned upon the faithful performance of his duties under the law; the amount and sufficiency of the security to be judged of by the county board of education. Civil Code, § 1492. This provision confers upon the county board of education a.discretion in the approval of the amount of the bond and the sufficiency of the security. A mandamus will not issue to compel a discretionary act; but it is alleged in the petition (and the allegation must be taken as true on demurrer) that a bond was presented to the board of education, and they approved the amount of the bond and the sufficiency of the security. The discretion vested in the county board of education has been exercised in their declaration of approval of the bond as presented, so far as they had any discretion to act. The bond, in substance, conformed to the requirements of the statute, and should have been approved by the county, board.
3. It is said that a mandamus was properly denied because of *652thé delay of the applicant in applying for the writ. The application was filed ten months after the beginning of the term for which the applicant was elected. It affirmatively appears that no one was in office discharging the duties of the same; the office was vacant, and the applicant was seeking to have his bond approved. The board of education during this interval had arbitrarily persisted in its refusal to approve a bond of a duly elected official of the county. Under these circumstances the applicant was not guilty of such laches as would bar him of the relief he seeks.
4. Under the rulings announced in the preceding divisions, it was erroneous to dismiss the petition on demurrer.
Judgment reversed.
All the Justices concur.
AI-generated responses must be verified and are not legal advice.
