McDONALD SONS v. McQUEEN

W.W. Stockstill, of Bay St. Louis, and J.E. Stockstill, of Picayune, for appellant.

In the case of Trantham v. Russell, 171 Miss. 481, 158 So. 143, the court distinctly held that the superintendent and the surety on his bond were liable on pay certificates issued to teachers in excess of the school funds for the scholastic year. In that case, the certificates involved were regular pay certificates, and not pretended duplicates. It appears that the holder of these certificates acquired them after the close of the scholastic year in which they were issued, and it seems to us that this was sufficient at least to require the purchaser to make inquiry in regard to the condition of the school funds before he purchased certificates issued in a scholastic year which had closed. However, the court held that the superintendent and his sureties were liable in the following language: "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 6 per cent interest per annum on the amounts of the certificates from the time they were due. Section 1946, Code of 1930."

Section 6634, Code of 1930, provides that "the schools shall be kept in session for at least eight months in each scholastic year, provided funds are sufficient, and the trustees and county superintendent approve that length of school term". In the case of the City of Louisville v. Greer, 166 Miss. 554, 148 So. 356, the court, in construing this section, distinctly held that it "clearly contemplates that the schools are not to be kept open unless the school revenues are sufficient to pay the expenses thereof — in other words, that they should be closed whenever the school revenues are insufficient for their further maintenance." Therefore, McQueen's failure to close the schools when the school revenues were exhausted, and the extra clause inserted in the yellow certificates, were both guarantees that funds would be available during the scholastic year to pay these certificates.

Under the last clause of section 6732, the superintendent and his bond are "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." This liability exists whether the teacher has received a certificate or other evidence of service performed or not, if they are so liable to the teacher, they would certainly be liable to the assignee of the teacher. In other words, this liability becomes a chose in action, and under section 505 of the Code of 1930, any chose in action may be assigned, and suit prosecuted thereon in the name of the assignee.

It is only in cases where the proof for the plaintiff, when it tends to sustain the issue, is so unreasonable and contradictory within itself that it cannot be reasonably accepted as being true that a peremptory instruction should be granted.

Fore v. A. V.R.R. Co, 39 So. 493; Newton v. Homochitto Lbr. Co., 138 So. 564; Thomas v. Williamson, 187 So. 220; Relations Board v. Columbian, etc., Co., 59 S.Ct. 501; Davis, Director General, v. Temple, 129 Miss. 6, 91 So. 689. Gex Gex, of Bay St. Louis, and Geo. R. Smith, of Gulfport, for appellee.

The burden of the proof rested upon appellants, and in addition to the requirement that they prove the ownership of the claims sued upon, it was incumbent that they prove first that the instruments sued upon were teachers' pay certificates; second, that the same had been executed by the appellee, the Superintendent of Education; third, that the amount of pay certificates issued for the year exceeded the amount of money received for school purposes for that year. This burden, we respectfully submit, appellants have utterly failed to meet.

Subsection 7 of section 6570 of the Code of 1930, provides that teachers' pay certificates must be in the form prescribed by the Board of Education, and there is not the least scintilla of evidence in the record that any of the instruments offered in evidence, or concerning which proof was had, complied with this requirement. To the contrary, it is obvious that none of these instruments even purported to be pay certificates and that the same were never treated as such.

A pay certificate, in addition to meeting the statutory requirements, should be an unconditional order for the issuance of a warrant.

Pearman v. Robinson, 119 Miss. 384, 80 So. 786.

In the case of Trantham v. Russell, 171 Miss. 481, 158 So. 143, this court held a Superintendent of Education is not liable upon his bond for the issuance of pay certificates for transportation expenses; that by its language (section 6732), it is confined exclusively to teachers' pay certificates.

Surely, under the provisions of the highly penal statute under which this action is brought, no liability could be incurred by the Superintendent of Education because some individual attempted to assign an alleged claim and directed that he comply with such assignment.

McGaha v. Curlee et al., 176 Miss. 671, 169 So. 694.

In the case of Smith v. Covington County, 171 Miss. 879, 158 So. 119, this court held that where a Board of Supervisors ordered the issuance of a warrant "when funds are available out of funds that may be due the above district," such action was void. An order for the payment of money by a public officer or body must be unconditional.

This court, in the case of Borham v. White, 171 Miss. 303, 157 So. 465, held that a county warrant signed, sealed, and detached from the warrant book ready for delivery to payee, has no vitality until it left the hands of the county officials and was delivered to payee. The same rule was followed in Beckett v. McCaslin, 161 Miss. 557, 137 So. 519.

Appellants have failed to prove that any pay certificates were issued in excess of the amount of revenues for any of the years involved in this controversy. Section 6732 of the Code of 1930, being a highly penal statute this court will not engraft additional grounds of liability as was held in the case of Trantham v. Russell, above cited. Neither have appellants proved a case under the last sentence of section 6732, which imposes liability on the part of the county superintendent "to any person whom he may cause to teach in a public school and for whose payment there is no money in the treasury." Appellants did not allege a case on this theory in either their original declaration or amended declaration but refer to such liability in their brief apparently as an afterthought and in so doing by implication acknowledge the weakness of their case upon the written instruments.

To have maintained a case on the latter theory, as assignee of the individual teachers, it was incumbent upon appellants to have proved the existence of a valid contract of employment; to have proved that the services under such contract for which payment was claimed had actually been performed, and there is no proof in the record in this regard. In other words, to have proceeded on the theory as assignee of an indebtedness, it would have been necessary for appellants to have proved the existence of the indebtedness as well as the assignment thereof to appellants.

Polk v. Bd. of Supervisors of Tunica County, 52 Miss. 422.

The proof shows, and this thread runs through the entire controversy, that the County Superintendent of Education of Hancock County during the dark days of the depression, made every effort to fulfill the duties of his office; to provide the people of that county with schools and to accommodate the teachers, as well as the persons who were engaging in purchasing the claims of school teachers. In doing these things the County Superintendent used his best judgment.

State, To Use of Lincoln County, v. Green, 111 Miss. 32, 71 So. 171; Kendall v. Stokes et al., 3 How. 87, 11 L.Ed. 506.

We respectfully suggest that appellants are not without remedy if their claims are valid; section 6621 of the Code of 1930 provides the procedure under which the holder of valid claims based upon indebtedness due teachers may be inquired into by the Board of Supervisors and warrant directed to be issued for such amounts as they may determine to be justly due, even to the extent that a special tax levy may be imposed for the payment of such obligations.

Chap. 255, Laws of 1936; Prentiss County v. McRee (Miss.), 189 So. 95; Greenville Consolidated School District v. Gordon (Miss.), 189 So. 97.

Argued orally by J.E. Stockstill, for appellant.