Summary
In Golden v. Thompson, 194 Miss. 241, 11 So.2d 906 (1942), we adopted the view that a public official who, in the performance of his duty, acted in good faith reliance upon a statute before it had been declared unconstitutional by a Court should not be held civilly liable for conduct authorized by such statute.
Summary of this case from Frazier v. State by and Through PittmanOpinion
No. 35199.
February 8, 1943.
1. SCHOOLS AND SCHOOL DISTRICTS.
Whether tuition fees collected from students in high school department of consolidated school were wrongfully disbursed by school board did not affect validity of board's order requiring payment of tuition (Code 1930, sec. 6648).
2. SCHOOLS AND SCHOOL DISTRICTS.
Whether tuition fees collected from students in high school department of consolidated school were wrongfully disbursed is a matter for determination if and when trustees are called on to account therefor in appropriate action brought for that purpose (Code 1930, sec. 6648).
3. STATUTES.
Rule that unconstitutional law is a nullity cannot be applied to work hardship and impose liability on public officer who in performance of duties has acted in good faith reliance on validity of statute before its invalidity was judicially determined.
4. CONSTITUTIONAL LAW.
Whether statute is constitutionally valid is a "judicial question" for courts to determine, and hence public officer is not charged with duty of determining constitutional validity of statute before acting in reliance thereon.
5. STATUTES.
Officials of consolidated school who acted in good faith reliance on statute permitting consolidated schools to collect tuition fee from high school students did not incur personal liability by excluding from school students who failed to pay fee required by order of school board, regardless of whether such statute, the constitutionality of which had not been judicially determined, was actually invalid (Code 1930, sec. 6648; Const. 1890, sec. 208).
APPEAL from circuit court of Montgomery county, HON. JOHN F. ALLEN, Judge.
J.W. Conger, of Winona, for appellants.
Public school trustees are public officers and have only such powers as are conferred by statute or which are incidentally necessary to the full exercise of the powers conferred and do not have the power to purchase supplies and make other debts and fix arbitrary entrance fees, or tuition, against pupils during a free school term for the purpose of raising funds with which to pay said debts, and as a penalty for non-payment of the tuition order expulsion of the pupils from said school, and expulsion of pupils under such circumstances gives rise to actions in tort against those who participate.
Morris v. Vandiver, 164 Miss. 476, 145 So. 228; State Teachers' College v. Morris, 165 Miss. 758, 144 So. 374.
Where a public officer acts by color and authority of his office, as in the case of trustees of schools and the principal thereof, in the expulsion of children because they and their parents refuse to pay an unlawfully fixed tuition charge in a public school, admission to which is free, these officers are liable for their wrongs in tort to the child who is injured thereby.
Pierce v. Chapman, 165 Miss. 749, 143 So. 845.
That part of Section 6648 of the Code of 1930, allowing trustees of consolidated schools to fix tuition fees against high school pupils in such schools, is violative of Section 208 of the State Constitution, in that all pupils, otherwise entitled to attend, should be received, and the expulsion of pupils because of failure to pay tuition under said section gives a right of action, there being no other alleged attendance disqualification.
V.D. Rowe and H.T. Holmes, of Winona, for appellees.
The testimony shows that the principal of the school, one of the defendants in the case, found the rule as to charging tuition to the pupils of the high school grades was in existence when he assumed charge of the school. The other defendant in the suit was a trustee of the school. Neither one of the defendants acted arbitrarily and in their individual capacities. The principal had been employed to take charge of the school and conduct it as he found it, and that was all he is shown to have done. He was simply enforcing a regulation prescribed by the trustees that employed him, and in so doing he is not liable individually, unless he acted beyond the scope of his employment. The other defendant, the trustee, cannot be held liable individually for damages in the expulsion of plaintiffs from the school, because he acted as a trustee. He was a member of a governing board of the school under the law, and as such it is not the policy of our law to hold him liable in damages for his acts as a member of such governing board.
Wray v. McMahon et al., 182 Miss. 592, 182 So. 99; State ex rel. Bank of Commerce Trust Co. v. Forbes, 179 Miss. 1, 174 So. 67; Reese v. Isola State Bank, 140 Miss. 355, 105 So. 636; Pidgeon Thomas Iron Co. v. Leflore County, 135 Miss. 155, 99 So. 677.
We submit that there is no statute fixing any liability upon public school trustees individually for their acts.
We fail to find any decision in our state allowing boards of school trustees, or the individual members thereof, to be sued for damages for the acts they perform. There is no statute to that effect. The only remedy for wrongful expulsion from a public school, or for refusal to reinstate a pupil dropped from such school, is by mandamus.
Clark et al. v. Board of Trustees of Lopar Line Consolidated School District, 117 Miss. 234, 78 So. 145.
Azelle and Susie Golden were students in the High School Department of Spring Hill Consolidated Public School in Montgomery County. The appellee Thompson was the principal thereof and Shelton one of its trustees. The Goldens were excluded from the school by the two appellees and brought this action by their father as next friend in a court of a justice of the peace to recover damages therefor. No objection was made to the joinder of the two causes of action. On the trial of the case in the court below and at the conclusion of the evidence therein, the court instructed the jury to return a verdict for the appellees and there was a verdict and judgment accordingly.
The expulsion of the appellants from this school was pursuant to orders entered on its minutes by the school's board of trustees. Pursuant to Section 6648, Code of 1930, the trustees of the school added a high school department thereto and by an order on its minutes required the students therein to pay a tuition fee of $1 per month. This fee was not paid by the appellants nor by anyone for them. Some time prior to February 23rd, 1942, the exact date not appearing, the board made an order reciting that: "All High School Students must pay their tuition in full by Monday Feb. 23, 1942. All students that have not paid in full by Monday 23, will have to be dropped from school. After being dropped from school you will only be allowed on the school campus, during school hours. Only when you are to see about your tuition." The expulsion of these appellants occurred a short time before the close of the school for the term and was by its Principal Thompson, with the approval of Shelton, one of its trustees.
In support of their contention that the court below erred in directing a verdict for the appellees, counsel for the appellants say that the orders of the school's board of trustees under which the appellants were excluded from school are void and afford the appellees no protection for two reasons: (a) the provision of Section 6648 of the Code permitting trustees of consolidated schools to require tuition fees from pupils of the school's high school department violates Section 208 of the State Constitution; and (b) the trustees were without power under the school statutes to incur the expense paid by them out of tuition fees for the payment of which the tuition fee was required.
It will not be necessary for us, as will hereinafter appear, to decide the first of these questions. The second is without merit for the reason that whether the tuition fees were rightfully or wrongfully disbursed by the board of trustees has no bearing on the validity of the board's order requiring the payment thereof by students. Whether or not the tuition fees that were collected were wrongfully disbursed is a matter for determination if and when the trustees are called on to account therefor in an appropriate action brought for that purpose.
Counsel for the appellees, while not admitting the constitutional invalidity of the provision of Section 6648 of the Code, here under consideration, say that, if it should be held invalid, the appellees having acted in reliance thereon, cannot be charged with liability therefor in the absence of evidence that this action was not in good faith, and none such here appear.
The courts are not in accord as to whether a public officer acting in reliance on a statute afterwards declared to be constitutionally invalid incurs any civil liability to one injured thereby. A majority of them hold that the officer acts at his peril and as a statute which violates the Constitution is a nullity, the officer is subject to liability for acting thereon. A minority of them, however, hold that "the rule that an unconstitutional law is a nullity cannot be applied to work hardship and impose liability on a public officer who, in performance of his duty, has acted in good faith in reliance on the validity of a statute before any court has declared it invalid." 16 C.J.S. Constitutional Law, section 101, subdivision c, p. 290. Cases dealing herewith are collated in a note to Texas Company v. State, 53 A.L.R. 268. See, also, 1 Willoughby on Constitution (2 Ed.), section 8. This Court has not heretofore decided that question, but has pointed the way to an accord with the minority of the courts thereon in Yazoo M.V.R. Company v. West, 78 Miss. 789, at page 811, 29 So. 475, at page 476, wherein it held that a public officer is not charged with the duty of determining whether a statute is constitutionally valid when acting thereon, that being "a solemn judicial question, for the courts to determine." Following this lead, together with our own conception of what the answer to this question should be, we join the minority of the courts dealing therewith and hold that even if the provision of Section 6648 of the Code which permits the trustees of a consolidated school to require a tuition fee from students in the high school department thereof is invalid, as to which we express no opinion, no liability was here incurred by the appellees in acting in reliance thereon.
Affirmed.