Summary
In Trantham v. Russell, 171 Miss. 481, 158 So. 143, it was pointed out that the carriers were not included in Section 6732 of the Code.
Summary of this case from National Surety Corp. v. StateOpinion
No. 31464.
December 3, 1934.
1. SCHOOLS AND SCHOOL DISTRICTS.
Statute requiring state board of education to furnish certified copy of apportionment of equalizing fund to counties and school districts by implication required board to keep written record of its acts and doings (Code 1930, sec. 6740; Constitution 1890, sec. 203).
2. SCHOOLS AND SCHOOL DISTRICTS.
Under statute county superintendent of schools was liable on his official bond to holders of teachers' pay certificates issued in excess of school funds, notwithstanding he issued certificates on parol promise of state board of education to appropriate money to county, since good faith and mistaken judgment were no defense (Code 1930, secs. 6565, 6751, 6732, 6740).
3. SCHOOLS AND SCHOOL DISTRICTS.
County superintendent of schools held not liable on his official bond to holders of truck drivers' pay certificates issued in excess of school funds where superintendent acted in good faith within scope of authority (Code 1930, sec. 6565).
4. SCHOOLS AND SCHOOL DISTRICTS.
County superintendent of schools and bondsmen are not liable for errors of judgment or discretion made in good faith and without fraud in absence of statute imposing liability (Code 1930, sec. 6565).
APPEAL from the Circuit Court of Prentiss County.
W.C. Adams, of Corinth, and Butler Snow, of Jackson, for appellants.
We think it clear that the county superintendent is vested with both executive and judicial powers, and that neither he nor his bondsmen are liable for errors of judgment and discretion in the absence of fraud.
Lincoln County v. Green, 111 Miss. 32; Section 6732, Code of 1930.
Section 6732, Code of 1930, is in derogation of the common law, gives a right in the nature of a penalty where none existed before, is penal in its nature.
Adams v. Sanders, 93 Miss. 520; Mortgage Company v. Burke, 80 Miss. 643; Dubrill v. Dandridge, 51 Miss. 55; Mississippi Digest Statutes, sections 239 and 241, pages 823 and 825; 25 R.C.L. 1057; 59 C.J. 1110, 1124 and 1129.
Section 6732, Mississippi Code of 1930, does not render the superintendent of education and his surety liable for the face value of pay certificates issued in excess of the amount received on account of the public schools for the current year when issued to truck drivers or others for the transportation of pupils to the schools.
In the absence of statute requiring minutes to be kept, the acts of a public board can be proven, even though there is no written record thereof, but if such board is required to keep a written record or minutes of its proceedings, then their acts can be proven only by the minutes.
Wigmore on Evidence, sections 2451 and 3446; 44 C.J. 97; 14 C.J. 352, 376.
There is no statute at any place requiring the state board of education to keep written minutes of its proceedings or expressly requiring it to keep other written records.
It is not believed that if because of the delinquencies the county failed to receive all that was anticipated from local taxation, the county superintendent was made liable because of delinquencies. It would seem that if his contracts did not exceed the amount of the common school fund coming to his county and the amount expected to be raised by local taxation if there were no delinquencies, that he ought to be protected.
Article 13, chapter 163, Mississippi Code of 1930.
E.C. Sharpe, of Booneville, for appellee.
The bond required of the county superintendent of education is conditioned "upon the faithful performance of the duties of this office." And one of the duties required of him is set out in section 6571, Code of Mississippi 1930, which is as follows:
"Monthly salaries to be proportionate to the whole school fund. — Superintendents shall fix the salaries of teachers so that the amount to be paid in salaries and other expenses for maintaining all the schools for one month shall not exceed that fractional part of the whole school fund which one month is of the whole number of months the schools are taught."
By section 6732, Code of Mississippi 1930, another duty is placed upon the county superintendent, — that of fixing the salaries of the teachers so as to not allow a deficit in any one year.
It is clearly the intention of the Legislature in the enactment of all of the above statutes to prevent a deficit in the school funds for the current year and to provide that all expenses including transportation necessary for the maintaining of the schools shall be promptly paid out of current revenues, and by these statutes the county superintendent is given ample authority to reduce salaries if necessary, to keep within current revenues.
Section 6610, Code of 1930.
Matters requiring the action of a school board must be considered at a meeting properly held.
24 R.C.L. 576, 615; State ex rel. v. Alexander, 158 Miss. 557, 130 So. 754.
It is required by appellants that no recovery should be had on the transportation certificates because they are not specifically mentioned in section 6732, Code of 1930, and cites 25 R.C.L. 1057 to support this contention, overlooking section 283, page 1058, of the same authority.
It is a fundamental rule of statutory construction that not only should the intention of the lawmaker be deduced from a view of the whole statute and of its every material part, but statutes in pari materia should be construed together.
25 R.C.L. 1060.
No question was raised as to the transportation certificates in the lower court.
It was the duty of appellants to have raised this objection in the lower court, and having failed to do so there, they are now precluded from raising the question for the first time in this court.
Pierce v. Chapman, 165 Miss. 749, 143 So. 845; 22 R.C.L., p. 506, sec. 109; Gerber v. Ackley, 37 Wis. 43, 19 Am. Rep. 751.
Appellee had a right to presume that the superintendent would not disregard the law and issue certificates in excess of the current revenues, and relying upon this presumption he acquired these certificates in good faith, and should not have a right to recover from the official and his sureties.
City of Louisville v. Greer, 166 Miss. 554, 148 So. 356; Section 6634, Code of 1930.
Argued orally by George Butler, for appellant, and by E.C. Sharp, for appellee.
Appellee brought this action in the circuit court of Prentiss county against appellants, C.G. Trantham, superintendent of education of that county, and the surety on his official bond, National Surety Company, to recover the sum of eight hundred eighty-four dollars and sixteen cents, the aggregate amount of school teachers' pay certificates and school truck drivers' pay certificates issued by the superintendent and owned and held by appellee, which appellee alleged were issued in violation of law, and for payment of which the superintendent was liable on his official bond. The case was tried before the judge acting as judge and jury, resulting in a judgment in appellee's favor in the amount sued for.
During the first few months of 1932, appellant Trantham, in his official capacity as county superintendent of education, issued the pay certificates involved, amounting to eight hundred eighty-four dollars and sixteen cents, of which amount five hundred eleven dollars and twenty cents was for teachers' pay certificates, and the balance, three hundred seventy-two dollars and ninety-six cents, was for school truck drivers' pay certificates. They were for services rendered for the scholastic year 1931-32. During that year the total resources of the county for school purposes was the sum of fifty-five thousand nine hundred sixty-four dollars and eighty cents. Warrants and pay certificates were issued by the superintendent as follows: For teachers, sixty thousand three hundred ninety-six dollars and forty-three cents, for truck drivers, twenty-four thousand two hundred ninety-one dollars and forty-two cents, making a total of eighty-four thousand six hundred seventy-seven dollars and eighty-five cents. The result was that pay certificates for twenty-eight thousand seven hundred twelve dollars and ninety-five cents were issued to teachers and truck drivers in excess of the funds devoted to that purpose. Appellee acquired the certificates in due course for a valuable consideration after the expiration of the 1931-32 scholastic year. There being no funds with which to meet these obligations, he brought this action, as stated, on the official bond of the county superintendent of education to recover the face value of the certificates with six per cent. interest from the time due.
Sections 6732, 6571, and 6565, Code of 1930, provide as follows:
"6732. All school funds received and collected during the scholastic year shall constitute the school fund of the county for the scholastic year; and the salaries of the teachers shall be so fixed as not to allow a deficit in any year. It shall be unlawful for the superintendent to issue pay certificates to teachers in excess of the amount of money received on account of the public schools for the current year and any certificate so issued shall be illegal and void; but the superintendent shall be responsible on his bond to the holders for face value of such certificate and shall be so liable to any person whom he may cause to teach in a public school and for whose payment there is no money in the treasury."
"6571. Superintendents shall fix the salaries of teachers so that the amount to be paid in salaries and other expenses for maintaining all the schools for one month shall not exceed that fractional part of the whole school fund which one month is of the whole number of months the schools are taught."
"6565. The county superintendent shall, before entering upon the duties of this office, take the oath of office, and give bond with a surety company, in the penal sum of not less than two thousand dollars nor more than twenty thousand dollars, payable to the state, conditioned upon the faithful performance of the duties of this office, the amount of said bond to be fixed by the board of supervisors; and in case the superintendent fails to give the required bond within thirty days after his regular term of office begins, or when appointed, the office shall be vacant."
On the trial of the case, appellants undertook to show, by J.A. Cunningham and the superintendent of education, that during the month of September, 1931, the state board of education agreed with Prentiss county to appropriate to that county for school purposes from the state equalizing fund the sum of forty-nine thousand dollars, and that the pay certificates in question were issued by the superintendent in good faith, relying upon that agreement; that the agreement was not carried out, but if it had been the pay certificates issued by the superintendent would have been within the available funds — there would have been no deficit. There was no attempt to show that the state board of education made such an order on its minutes and furnished a certified copy thereof to the auditor, state treasurer, and the county superintendent of education. The court excluded the evidence on that ground.
It is inconceivable that the Legislature contemplated that the important and far-reaching acts of the state board of education should rest in parol — that no written record is necessary. The state board of education is a creature of the Constitution — section 203 — it consists of the state superintendent of education, the attorney-general, and the secretary of state. The department of education is one of the most important in our system of government. Among the powers conferred on it by law is the apportionment of the equalizing fund which annually now consists of more than two million dollars. This fund is required to be apportioned by the board semi-annually, or as often as may be necessary, to the several counties and school districts. The board is required to furnish a "certified copy" of the apportionment to be used by the superintendent in making out the warrants on this fund in favor of the county depositories and treasurers of separate school districts. Section 6740, Code of 1930. It is true that there is no statute expressly providing that the board shall keep a written record of its acts and doings, but it seems clear that the Legislature contemplated that it should be done; how could the board furnish a certified copy of the apportionment if the orders of apportionment rested in parol — what would there be to keep and certify to? We think that by implication section 6740 requires the board to keep a written record of its acts and doings.
So far as the teachers' pay certificates are concerned, we are unable to see any escape from liability of the superintendent on his official bond under section 6732 of the Code. It simply provides, in unmistakable language, that for teachers' pay certificates issued in violation of the statute, as these were, the superintendent shall be liable on his official bond to the holders, etc. Good faith and mistaken judgment are no defense. With such liability, there also goes six per cent. interest per annum on the amounts of the certificates from the time they were due. Section 1946, Code of 1930. The trial court so adjudged.
Now, taking up the question of liability for the truck drivers' pay certificates. So far as they are concerned, section 6732 has no application; by its language it is confined exclusively to teachers' pay certificates. Appellee contends that there is liability on the bond under section 6565 of the Code; that section provides for the official bond of the county superintendent "conditioned upon the faithful performance of the duties of this office." Appellee argues that the superintendent acted illegally and thereby breached his bond in issuing these certificates. There is no evidence that the superintendent acted in bad faith, in fact, the contrary is shown. The county superintendent is vested with both administrative and quasi judicial powers, and the efficiency of the public school system requires that large administrative powers be vested in him; and neither he nor his bondsmen are liable for errors of judgment or discretion in the absence of fraud, although by reason of such errors he pays teachers more than they are entitled to under the law. While he acts within the scope of his authority in good faith, he is not liable for errors of judgment. State to Use of Lincoln County v. Green, 111 Miss. 32, 71 So. 171. This principle, of course, has no application where section 6732 applies. This means that so far as the truck drivers' certificates are concerned, there is no liability on the bond.
Affirmed in part; reversed in part and judgment here.