Summary
In McCandless v. Clark, 172 Miss. 315, 159 So. 542, the court held that where cases in the same court were interwoven and interdependent in the trial of one case the court would take judicial knowledge of the proceedings in the other case.
Summary of this case from Bridgeman et al. v. BridgemanOpinion
No. 31592.
February 25, 1935. Suggestion of Error Overruled March 25, 1935.
1. EVIDENCE.
Where cases in the same court are interwoven and interdependent, court in the trial of one case will take judicial notice of proceeding in other cases.
2. SCHOOLS AND SCHOOL DISTRICTS.
County superintendent of schools held not relieved of liability for refusal to employ person elected by school board on ground that board was illegal after circuit court in quo warranto proceedings had held that board was legal.
3. SCHOOLS AND SCHOOL DISTRICTS.
Plea that person elected school superintendent was restrained by injunction from performing any of duties of school superintendent held valid defense to action against county superintendent for refusal to employ such person, though county superintendent was not party to suit for injunction (Code 1930, section 6610).
4. SCHOOLS AND SCHOOL DISTRICTS.
County superintendent's refusal to contract with and permit person elected school superintendent by school board to assume his duties, on ground that statute does not authorize contracts where school appropriation was made after school term began, held no defense, since statute refers to the formal written contracts but provides that superintendent shall enter into informal contracts with teachers and superintendents to be followed by formal contracts after the appropriation is made (Code 1930, section 6610).
APPEAL from the circuit court of Yazoo county.
HON.W.H. POTTER, Judge.
Action by C.H. McCandless against H.L. Clark and another. From a judgment dismissing the declaration, plaintiff appeals and defendants file cross-appeals. Reversed and remanded.
L.F. Easterling, of Jackson, for appellant.
A plea in confession and avoidance must confess the facts pleaded and must avoid coextensively with the confession, and must be an answer to the whole of what is adversely alleged.
Florida East Coast Ry. Co. v. Peters, 73 So. 151, 72 Fla. 311, Ann. Cas. 1918D 121; Central of Georgia Ry. Co. v. Williams, 75 So. 401, 200 Ala. 73.
Appellees' second special plea shows on its face that the duties of the county superintendent are purely ministerial and mandatory.
Sections 6570 and 6610, Code of 1930.
We call attention also to the fact that the circumstances and backgrounds in some of the cases parallel the facts in the case at hand, that is, the irrevocable right of the teacher to be contracted with after being elected by a board of trustees where the legality of that board has been brought into controversy.
Brown v. Owen, 75 Miss. 319, 23 So. 35; Whitman v. Owen, 76 Miss. 783, 25 So. 669; Campbell v. Warwick, 142 Miss. 510, 107 So. 657; State v. Alexander, 158 Miss. 557, 130 So. 754.
It is a well settled and well grounded principle of law that an officer whose duties are purely ministerial cannot escape liability for nonfeasance on the grounds that he acted in the exercise of his best judgment and discretion and without corrupt or fraudulent purposes.
22 R.C.L., pages 483-4, sec. 161, and sec. 26, pages 391-2, sec. 163, page 486; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65.
The question whether or not a mandamus will lie to force an officer to perform a certain duty is the true test whether or not the duty is mandatory or discretionary.
Webster v. Ballou, 108 Maine, 522, 81 A. 1009, Ann. Cas. 1913B 567.
The ouster proceedings against Plunkett and Warrington were not ab initio within the power of the superintendent of education.
Sections 6626 and 6627, Code of 1930; 3 Words and Phrases, page 2328; Ex parte Leland, 1 Nott McC. 460, 462; Moore v. State, 45 So. 866; Miss. State Board of Health v. Matthews, 113 Miss. 510, 74 So. 417.
It is our contention here the board on principles of justice, as well as the strict language of the statute, definitely fixes the liability for appellant's injury upon the county superintendent.
We call to our aid here the axiomatic principle of law — for every right a corresponding remedy. McCandless, appellant, possessed a contractual right and he could not be unlawfully deprived of that right and be deprived of a remedy.
Section 2903, Code of 1930; D'Aquilla v. Anderson, 153 Miss. 549, 120 So. 434; Flack v. Harrington, 12 Am. Dec. 170; Earp v. Stephens, 55 So. 266; Duffin v. Summerville, 63 So. 816; State v. McDaniel, 78 Miss. 1, 27 So. 994, 84 A.S.R. 618; Clancy v. Kenworthy, 74 Iowa, 740, 35 N.W. 427; Turner v. Sisson, 137 Mass. 191; McLendon v. State, 92 Tenn. 520, 22 S.W. 200; State v. Flinn, 3 Blackf. 72, 23 Am. Dec. 380; Brown v. Weaver, 76 Miss. 7, 23 So. 388, 71 Am. St. Rep. 512; Hibbs v. Arensberg, 119 A. 727.
The second plea answered but a part of appellant's declaration.
6 Words and Phrases, page 5545; Green v. State, 35 S.W. 97, 99, 109 Ga. 536; Burr v. Williams, 20 Ark. 171, 185; Cort v. Ambergate, N. B. E. Junction Ry. Co., 17 Q.B. 127, 145; Schilizi v. Derry, 4 El. Bl. 873, 888; In re Jones, 78 Ala. 419, 421; Rowe v. Atlas Oil Co., 84 So. 485; Fox v. Hilliard, 35 Miss. 160; Florida East Coast Ry. Co. v. Peters, 72 Fla. 311, 73 So. 151, Ann. Cas. 1918D 121.
J.G. Holmes and R.R. Norquist, both of Yazoo City, for appellees.
It is the contention of the appellees, which contention was sustained by the court below, that the facts alleged in the second special plea of appellees constituted a bar to the action of appellant, and that such allegations are taken as true on the demurrer interposed by the appellant to such plea.
Plunkett et al. v. Miller et al., 162 Miss. 149.
The allegations of the plea to the effect that Clark was acting in his official capacity and in the exercise of his best judgment and discretion and in the utmost good faith, are admitted by the demurrer, and must be taken as true.
Under rules of general application county school officers are not liable individually for acts in their official capacity, or for errors in their exercise of judgment and discretion.
56 C.J. 297; Lincoln County v. Green, 111 Miss. 32; Kendall v. Stokes et al., 3 How. 87, 11 L.Ed. 506; Pegram v. State, 83 So. 741; Reese et al. v. Isola State Bank, 140 Miss. 355.
The principle that a public officer acting in the performance of his official duty and in the exercise of his best judgment and discretion, and in good faith, is not liable on his official bond for such acts, was again approved by this court in the case of National Surety Co. v. Miller, 155 Miss. 115.
Trantham et al. v. Russell, 158 So. 143; State for use of Lincoln County v. Green, 111 Miss. 32, 71 So. 171; Whitehurst v. Smith, 155 So. 683.
The action of the trial court in overruling the plaintiff's demurrer to the second plea of the defendants was correct, and should be affirmed on this direct appeal.
Section 6610 of the Mississippi Code of 1930, provides that in years when the state appropriation is made after the beginning of the fall school term it shall be lawful for the county superintendent of education to cause the schools to be taught without contract until he shall have officially ascertained the amount of the common school fund that will be distributed to his county for that scholastic year.
Appellant brought this action in the circuit court of Yazoo county against appellee H.L. Clark, formerly superintendent of education of that county, on his official bond, and appellee the Fidelity Deposit Company of Maryland, the surety on such bond, to recover the sum of one thousand two hundred fifty dollars alleged to be due him as superintendent of the Anding Consolidated School for the scholastic year 1931-32, which he charges he was deprived of because appellee Clark, as such county superintendent, in bad faith and unlawfully refused to recognize him and contract with him and pay him as superintendent of such consolidated school.
In addition to the general issue, the appellees pleaded three special pleas, to which appellant demurred. The demurrer was sustained to the first and third pleas and overruled as to the second. Appellant declining to plead further, final judgment was entered dismissing the cause. From the judgment dismissing the cause appellant prosecutes a direct appeal, and from the judgment sustaining the demurrer to appellees' first and third pleas appellees prosecute a cross-appeal.
This is the fifth appeal to this court of five separate cases growing out of the same transactions. State ex rel. Plunkett et al. v. Miller et al., 162 Miss. 149, 137 So. 737; McCandless v. Day et al., 162 Miss. 859, 140 So. 337; Day et al. v. McCandless, 167 Miss. 832, 142 So. 486; McCandless v. State, 167 Miss. 539, 142 So. 490. The bearing of the facts in the former cases on the present cause will be considered later.
The declaration alleges, in substance, that appellee Clark was the county superintendent of education of Yazoo county for the term beginning January 2, 1928, and ending January 2, 1932; that appellant was duly and legally elected superintendent of the Anding Consolidated School of that county for the scholastic year 1931-32, and presented himself to Clark prior to the opening of the school and demanded that Clark contract with him as provided by law; that although it was Clark's official duty to do so, he unlawfully, willfully, and arbitrarily refused, and on the contrary he set about to and did prevent appellant from performing the services as such superintendent and deprived him of the compensation therefor, amounting to one thousand two hundred fifty dollars; and that Clark thereby breached his official bond, and he and his surety became liable thereon for that sum.
In their first special plea appellees set up that appellant was not entitled to recover because when he presented himself to Clark, as county superintendent, to be contracted with he was under an injunction issued by the chancery court of Yazoo county, which injunction had not been sued out at the instance of appellees or either of them, and which injunction restrained appellant from entering upon and performing any of the duties whatsoever as superintendent of the Anding Consolidated School; that appellant stood under this injunction during the entire scholastic year 1931-32; that appellee Clark, as county superintendent, knew of this injunction; and that if he had been willing to contract with appellee he could not have done so without violating this injunction.
The second plea avers that the legality of appellant's election as superintendent of the Anding school was questioned on the ground that the board of trustees electing him was an illegal board, and therefore was without authority; that later appellant resigned as such superintendent and then claimed a re-election immediately; that pursuant to the duties devolving upon the county superintendent of education to settle all controversies arising under the school laws, Clark declined to recognize as legal either of these elections of appellant; that in so doing he was acting on the advice of the attorney-general of the state, as well as private counsel; that on these controverted questions he acted in good faith and according to his best judgment.
In the third plea it is averred that it was not the duty of the county superintendent to contract with the appellant because under section 6610, Code 1930, it is provided that in years when the state appropriation is made after the beginning of the fall school term, the county superintendent shall cause the schools to be taught without contracts with the teachers and superintendents until he shall have officially ascertained the amount of the common school fund that will be distributed to his county for that scholastic year; that this statute applied because the appropriation was not made for the scholastic year 1931-32 until after the beginning of the fall term, and not until after the expiration of Clark's term of office, which took place on the 2d of January, 1932.
There is no attempt by the pleadings in this case to make the contents of the records in the other four cases appealed to this court a part of the record in this. If, in the consideration of this case, it is the duty of the court to take judicial notice of the contents of the records in the other four cases one result will be reached, while if that is not done a different result might, and probably would, follow. The question then is whether under the facts revealed by the records in these five cases this court should take judicial notice of those in the first four. The foundation of the litigation in all five of the cases arose out of the question as to which was the legal board of trustees of the Anding School for the scholastic year 1931-32.
What is known in the records of these cases as the Plunkett board claimed to be the legal board, while the Miller board also claimed to be. It turned out that the Plunkett board was the legal board; that is the board that elected appellant superintendent of the school. The Plunkett board brought quo warranto to test the right of the Miller board. The Miller board elected Box as superintendent of the school; Clark, as county superintendent, recognized Box and put him in charge as superintendent, refusing thereby to recognize appellant as being entitled to the position. In the quo warranto proceeding the circuit court held that the Plunkett board was the legal board. On appeal to this court that judgment was affirmed on November 23, 1931. The Miller board brought an action of unlawful entry and detainer against appellant to recover from him certain property belonging to the Anding school, which they claimed he was unlawfully in possession of. The circuit court of Yazoo county rendered a judgment against appellant. On appeal to this court that judgment was reversed and the cause remanded. McCandless v. Day, 162 Miss. 859, 140 So. 337. On August 27, 1931, before the scholastic year began, the Miller board obtained from the chancery court an injunction restraining appellant from going upon the Anding school grounds and in the buildings and from exercising or attempting to exercise in any manner the duties as superintendent of the school. On January 16, 1932, a decree was entered dissolving the injunction and awarding appellant damages in the sum of one hundred fifty dollars, attorney's fee for procuring its dissolution. A supersedeas appeal was taken from that decree to the Supreme Court, and on June 6, 1932, the judgment of the lower court was affirmed. At that time the Anding school year had expired, this injunction having been in force during the entire term. Day v. McCandless, 167 Miss. 832, 142 So. 486. The other case was a contempt proceeding against appellant for an alleged violation of the injunction. It came to this court and is reported in McCandless v. State, 167 Miss. 539, 142 So. 490.
It will be observed that each of the five cases arose out of substantially the same facts, and the parties to some of them were the same. However, Clark, the county superintendent, was not not a party to the injunction suit, that was between the Miller board and the appellant. Where cases in the same court are interwoven and interdependent, in the trial of one the court will take judicial notice of the proceedings in the other. 23 C.J., p. 114, sec. 1920. Our court recognized and applied this principle in Keeton et al. v. Robinson, 144 Miss. 899, 110 So. 839. In that case the court held that where pending an appeal from a judgment against a garnishee the judgment in the original action was reversed by the Supreme Court, that court would take judicial notice that the basis of the garnishment proceeding had thereby been rendered nugatory, and would dismiss the garnishment proceeding and discharge the garnishee. There is no conflict between that decision and the holding of the court in Illinois Central R. Co. v. Walker, 116 Miss. 431, 77 So. 191, in which the court held that it would not take judicial notice of the ownership of a railroad proven in another and a different case growing out of a different transaction.
We will consider first the direct appeal which involved the question of the propriety of the action of the court in overruling the appellant's demurrer to appellees' second plea. To sustain his contention appellant relies principally upon State, to Use of Lincoln County, v. Green, 111 Miss. 32, 71 So. 171, and Trantham et al. v. Russell (Miss.), 158 So. 143, in which the court held that a county superintendent of education was not liable personally for his honest mistakes of judgment. That principle does not apply, however, where the superintendent has the law staring him in the face — where there is no escape from his knowing it. The quo warranto proceedings were instituted in June, 1931, and on September 3 of the same year the circuit court held that the Plunkett board was the legal one. That judgment was affirmed by the Supreme Court on November 23d thereafter. Clark, as county superintendent, had to recognize and obey that judgment from the time it was rendered by the circuit court; he had no right to assume that it might be reversed by the Supreme Court. He cannot claim good faith while acting in the face of the judgment of a court of competent jurisdiction. It was his duty to either put appellant in charge of the school, or at least withhold the salary until the question was finally settled by the Supreme Court. He did neither. We think, therefore, he is not in a position to claim good faith. This question was touched on but not decided in the last paragraph of the opinion in Whitehurst v. Smith (Miss.), 155 So. 683. It follows from these views that the judgment of dismissal should be reversed.
Appellant's demurrer to the first special plea should have been overruled. That plea sets up a good defense. In substance, it avers that all during the scholastic year in question appellant was under an injunction restraining him from in any wise performing the duties of superintendent of the Anding school. If Clark, as county superintendent, had been willing to contract with appellant, he could not have made a contract without appellant violating the injunction. In other words, one of the parties was prohibited by law (the injunction) from entering into the contract. Certainly, the other could not be charged with a breach of duty in failing to contract under those conditions.
Appellant's demurrer to the third plea was properly sustained. The basis of it is that under section 6610, Code 1930, Clark, as county superintendent, was not authorized to enter into a contract with appellant, because the appropriation for the public schools for 1931-32 was not made until after the fall term had begun. That section provides, among other things, that when the state appropriation is made after the beginning of the fall school term, it shall be lawful for the county superintendent of education to cause the schools to be taught without contracts until he shall have officially ascertained the amount of the common school fund that will be distributed to his county for that scholastic year. It is averred in the plea that the appropriation was not made until January, 1932, and after the expiration of Clark's term of office, which took place on the 2d of January of that year; that, therefore, under the law he could not contract with the superintendent and the teachers. We are of opinion that the statute refers to the formal written contracts in which the things provided for in the statute are set out, including the salaries of teachers and superintendents. The statute does not mean that the county superintendent cannot enter into informal contracts to be followed by formal ones after the appropriation is made. On the contrary, the statute plainly provides that that can be and should be done. We are of opinion, therefore, that if nothing else stood in the way it was the duty of the county superintendent to put appellant in charge of the superintendency of the school, subject to the terms of a formal contract to be entered into after the appropriation was made.
It follows from what has been said that the first special plea presented a good defense, while the second and third pleas presented no defense. The cause is therefore reversed on both direct and cross appeal, and remanded.
Reversed and remanded.