Northington v. Sublette

114 Ky. 72 | Ky. Ct. App. | 1902

Opinion oe the court by

JUDGE HOBSON

— Reversing.

This was an application by appellant, Jessie Northington,, by her next friend, for a mandamus against appellees as the county board of examiners of' teachers! of the common schools of Ballard county, requiring them to issue to her a first-class certificate. She alleged that upon her examination it was found and determined by the board that her general average grade exceeded 85 per cent., and her lowest grade was above '05 per cent., and the board decided that she was entitled to a first class certificate, but the-superintendent, from some unknown cause, refused to permit the certificate to be issued to her. Appellees John M. Moore and Belle Bunn, two members of the board, filed answer, in which they, in substance, alleged that the statements of the petition were true. The third member of the board, appellee A. Dee Sublette, filed answer controverting the allegations of the petition. She afterwards filed an amended answer, in which she alleged that the plaintiff received aid in her examination. This was denied by a reply, .and on final hearing the court dismissed the petition.

There is little conflict in the evidence — so little that the real facts in the case may be simply stated. There is no ■dispute that appellant was graded satisfactorily on every thing except spelling, andi that she in fact made an average of 85 per cent. The only question is whether she made an average of 65 per cent, on spelling. Appellees Moore and Dunn decided that her grade on spelling was 70. Appellee Sublette held it to be 60, and refused to sign a first-class certificate. Appellees Moore and Dunn finally signed the second-class certificate, mót because they had changed their conclusion, but because they thought it would be better to give a second-class certificate than none, and there was an understanding that the matter of the grade on spelling was thereafter to be settled. A referee to whom the matter was referred to by them decided the grade was 65, but appellee Sublette still refused to sign the certificate.

It is true mandamus does not lie to control a discretion. It only lies to compel ministerial action. It lies against the board of examiners to compel them to decide what grade a teacher has made, but it does not lie to compel them to give the teacher a certain grade. In other words, if they make a mistake in grading the teacher, that mistake can not be corrected by mandamus; for in grading the teachers they must exercise their own judgment, and this can not be controlled by the courts. But when they have graded the teacher they have no further discretion.. The statute prescribes the grade of certificate to be issued:. “A county certificate of the first class shall require an average grade of eighty-five per centum upon all the subjects of the common school course and upon the science and art of teaching; and the lowest grade in any subject shall not. be less than sixty-five per centum.” Kentucky Statutes,, section 4503. It therefore follows that if a teacher makes the required grade he is entitled to a first-class certificate,, and the board, without special cause not alleged here, has. no right to withhold it from him. By section 448, Kentucky Statutes, it is provided: “Words purporting to give authority to three or more public officers or other persons-shall be construed as giving such authority to» a majority of such officers or. other persons.” The majority of the board of examiners were therefore to determine the grade-of any person examined by them, and the decision of the majority was as binding as if it had been made by the whole-board. When this decision was rendered appellant became entitled to her certificate, and it was. the duty of the superintendent to sign it and deliver it to her. In this she had no discretion. It was simply a ministerial duty.

As to the matter of receiving aid, it is sufficient to say that this is a matter committed to the board of examiners.. Kentucky Statutes, section 4425. The board has not seen; fit to act. Besides, as the record is presented, we see nothing in this.

Judgment reversed, and cause remanded, with directions, to award the mandamus as prayed. No costs will be adjudged against the appellees Moore and Dunn in this court,, nor in the lower court after the filing of their answer.

Petition for rehearing by appellee overruled.