73 Tenn. 691 | Tenn. | 1880
delivered the opinion of the court.
On the 13th of October, 1880, Charles Morley filed his petition for a mandamus against the defendants, C. Power and John Leonard, being two of the three members of the board of school directors for school district No. 13 of Davidson county. A similar petition was filed at the same time by Kate Hussey, and another by P. R. Burrus. Alternative writs of mandamus were issued in each case, and answered separately. The three cases were heard together, and consolidated for the purpose of this appeal, and one bill of exceptions made out for all of them. The circuit judge dismissed the petitions upon the hearing and each of the petitioners appealed in error. The rights of the parties turn in most respects on the same questions, and we will confine the discussion to Morley’s case.
The defendants answered the alternative writ of 'hiandarms by saying “ they had not signed any warrant for Charles Morley as a teacher of the thirteenth district and they have not reinstated him as a teacher for the following reasons,” setting them out. The evidence introduced consisted of the bill and answer in the injunction suit referred to in the petition and return thereto, and the order of the chancellor refusing to dissolve the injunction, upon the ground that the directors were entitled to the custody and control of the school-house of the district, and that the remedy of the defendants was by action for the compensation agreed on. It was also agreed by the parties that the chancellor had in the case of Power and Leonard v. McDonald, Burrus and Morley, rendered a decree holding that Burrus, McDonald and Leonard were the directors of school district No. 13, up to the 1st of September, 1880, and had the right to elect teachers and do all other business attached to the office; that Power’s term as a director commenced on the
Upon the hearing of the mandamus case his Honor the circuit judge was of opinion that the writ was only granted for public persons and to compel the performance of public duties. “That a teacher of public schools, under a contract made with the proper authorities charged with the duty of employing teachers, docs not occupy such a relation to the public as entitles him to the extraordinary remedy of mandamus to ^restore him to the position of teacher, from which he has been wrongfully removed; and, for the same reason, that a mandamus will not lie to compel the defendants to sign the warrant for the compensation of the teacher.”
Ho argument has been submitted in support of the ground upon which the circuit judge based his dismissal of the petition. The general principle enunciated by him is in conflict with the rulings of this court, in cases other than public functionaries. Mobile & Ohio R. R. Co. v. Wisdom, 5 Heis., 125, 155; Memphis Appeal Publishing Co. v. Pike, 9 Heis., 698. The writ has been granted against commissioners appointed by the county court to open the gates of a turnpike road. White’s Creek Turnpike Co. v. Marshall, 2 Baxt., 104. It has been sustained in favor of a teacher of a common school against the county trustee,
The return or answer of the defendants to the alternative wi’it of mandamus, virtually admits, what the exhibits prove, that the petitioner was appointed teacher as claimed, and further admits, what their own bill shows, that he was prevented by defendants from performing the duties of a teacher, and removed by them, and that they had refused to reinstate him, or pay him his compensation. Prima facie, the petitioner
The first position assumed in argument is, that the whole matter of litigation, involving the question of the appointment of the petitioner as a teacher, is now pending in the chancery court. The bill filed as evidence in support of this petition, shows that it is the bill of the defendants against the present petitioners, and seeks to enjoin them from interfering with the control of the complainants, as school directors, over the school-houses of the district. The only charge in the bill which bears upon the validity of the appointment of Morley as a teacher, is that he was elected by a board of directors, “ one of whom had been a director, but had ceased and refused to act for many months.” There is- no charge that he was not a director, duly elected and qualified, and the proof in the case shows that, in a suit brought expressly to test the title of that director to his office at that time, the chancellor rendered a decree, in full force and not appealed from, that the person referred to was a director, and complainant Power was not. The bill does not contest the title of the other petitioners at all.
The defense relied on is, in substance, the plea of a former suit pending in the chanceiy court. The plea is in the nature of a plea in abatement, and although under our practice, it may be embodied in an answer, it should have all the certainty of a plea. Connell v. Furgason, 5 Cold., 405. The answer under consider
It is next argued that the defendants have a discretion to determine whether a teacher is elected or has performed services, and to discharge a teacher ; that defendants have, acting under this discretionary power, determined these points against the petitioner; and that their discretion will not be controlled by mandamus. The rule undoubtedly is that in all matters requiring the exercise of official judgment, or resting in the sound discretion of the person to whom
By the act of 1873, ch. 25, sec. 20, sub-sec. 3, school directors are authorized “to employ teachers and to dismiss them for incompetence, improper conduct, or inattention to duties.” The right to employ teachers only exists in the case of a vacancy. It cannot be exercised while there are teachers already employed under a valid contract. The right to remove for the causes mentioned in the act is clear, but the very fact that the causes of removal are specified, demonstrates that the discretion is not unlimited. Whenever there is a limitation in the power, the determination whether the case is within the power rests with the courts, not with the officers authorized to remove, for, otherwise, the limitation would be of no avail, the discretion being practically unlimited.- Their judgment as to what the law allows them to determine, or as to the extent of their jurisdiction, will be controlled.
The answer says that petitioner was not qualified to teach, and the defendants decided to discharge him, and did so. It is not stated that there was any trial of his qualification, or notice to him of their intended action; nor is any allusion made to the certificate of •qualification, after examination, given by the county superintendent to petitioner. It is a rule of the com
There is no pretense of any notice or formal proceedings in this case. The defendants, according to their answer and the statements of their bills, simply notified the petitioner that he was removed. And if the answer had shown the most formal proceedings, no evidence has been introduced to show an exercise of power within the limitation.
The remaining ground alleged in argument is, that the present teachers in the schools should be before the court. But no such point is made in the answer, and there is no proof of there being any teachers in possession under a valid contract. Moreover, any persons claiming under the defendants could stand in no better attitude than they do.
Reverse the judgment, and render judgment here for a peremptory mandamus in favor of each of the petitioners with costs.