State ex rel. Fourroux v. Board of Directors

CLAIBORNE, J. Plaintiff applies for a mandamus to order the Parish Superintendent of the Public Schools for the Parish of Jefferson to issue a permit to-enable his son to attend a public school in the Parish of Orleans. Relator alleges that he is the father of Charles Fourroux, Jr., aged 14 years; that his son has been attending the public schools in Kenner, Parish of Jefferson, for several years; that on account of the advanced studies and desiring to complete the education of his son he has applied to the School Board for the Parish of Jefferson for a permit to enable his son to attend the Warren Easton High School of the City of New Orlans; that at a meeting said Board held November 3, 1922, a resolution was adopted granting said permit; that the Superintendent of Public Schools, J. C. Ellis, has refused to issue said permit; that it is the ministerial duty of the Superintendent to carry out the instructions of the School Board and for that purpose a mandamus is necessary and a mandamus is also necessary to order the School Board to compel the Superintendent to execute its orders. The defendant, Ellis, pleaded that the court was without jurisdiction. This exception was not pressed in argument, but must be considered, as want of jurisdic [3] tion must be notieéd ex officio, and a judgment rendered by a court without jurisdiction, ratione materise, is null. 2 La. Dig. 425, S. 12. But the court had jurisdiction. Sec. 35, p. 48 of the Constitution grants District Courts, throughout the State, the Parish of Orleans excepted, “original jurisdiction in all Civil matters regardless of the amount in dispute * * * and in all cases where * * * Civil or political rights are involved, and in all cases where no specific amount is in contest”. Sec. 6, p. 2—Scott vs. President of the Police Jury, 46 La. Ann. 278, 14 South. 521; Sentell vs. Police Jury, 48 La. Ann. 96, 18 South. 910; Mouton State ex rel. vs. Judge, 49 La. Ann. 1535, 22 South. 761. The other exceptions have not been pressed, except that of no cause of action which will be considered on the merits. For answer Ejlis denied that the Board of School Directors had any voice in the matter of the issuance of the permits demanded by relator; that relator attended the Public Schools in Kenner for several years and was regularly promoted from the seventh to the eighth grade where he became a pupil; that he refused to issue the permit for the reason that the School at Kenner, which relator’s son attended, was an adequate school of suitable grade and because he was authorized to issue said permits where such conditions did not exist; that the Board of School Directors passed a resolution granting said permit, but that the law did not vest in said Board any power to issue said permits or to order such permit to issue; that under the law the Superintendent is vested with exclusive power to issue said permit. There was judgment for relator against both defendants and J. 0. Ellis the superintendent, alone has appealed. in a well-considered written opinion the District Judge came to the conclusion that the School Board had authority to • review the action of thte School Superintendent in refusing to grant the permit, and if, in their judgment, the action of the Superintendent was error, that they could order him to issue the permit. We cannot agree with him. The law on the subject is contained in Act 100 of 1922, p. 204: Sec. 17 creates a Parish School Board for each Parish, and makes it a body corporate; the subsequent sections provide for the election, and qualifications of the members of the Board, and define their duties and rights. Nowhere is any mention made of the right of the Board to issue permits, or to order permits to be issued, such as are demanded in these proceedings. Section 19 provides that: “Each board shall elect or appoint a Parish Superintendent of Schools, having such qualifications as may be fixed by the State Board of Education for a period of four years.” Sec. 43 and others following prescribe the duties of the Parish Superintendent which appear to be quite numerous and different from the duties of the School Board; and section 47 creates him Secretary of the Board and section 51, its Treasurer, and defines his duties as such. Section 48 provides that if any teacher becomes incompetent, the superintendent shall report the fact to the Board for such action ' as the case might warrant. Sébtion 54 áuthórizes the principal of a school to suspend a pupil subject to the appeal of the Parish Superintendent whose decision shail tie final. Section 59 applicable to the present controversy reads as follows: “Children for whom adequate Schools of suitable grade have not been provided in their home parish may attend schools in an ádjoining parish. In such cásés permits shall he secíired from the Parish Superintendent of the children’s home parish, and after they have been approved by the Parish Superintendent of the Parish in [4] ■which the schools that the, children desire-to attend are located they; shall be' pre-. sented to the principals ’ of the schools which the ■ children wish to attend,, who shall be required to - admit the', children and provide for their instruction the same as if they were residents of the Parish.” . The same, provisions are repeated in the next paragraph relative to .children living, beyond the limits of a city which supports and' operates public schools sepafate and apuit from the system of schools under the ' jurisdiction of the Parish School Board. ‘ ' It will thus be seen that, the Parish School Board, and the Superintendent. of the Public Schools are treated as. separate and ‘ different persons and are vested with different rights and subjected to different' duties and obligations separate and distinct. The functions of each are -clearly defined. ‘ It is ■ not for us to inquire into the reasons for that difference. But- without going-far it might be that the legislature was of the opinion that the Superintendent, on áccount of the qualifications -required of him by Sec. 19 of the Act, was better able to decide whether “adequate schools of suitable grade” had been provided, than the members' of - the School Board whose only qualifications for the office were under Sec. Í7, to be abie to read and write and assessed for not'less than $500”. ‘ When the law prescribes, that “permits shall be' secured from the Parish Superintendent” we cannot substitute, in his place the Board of School Directors. The law evidently confers upon /the; Superintendent the discretion .to decide lipón the presence of “adequate schools'of suitable grade”. When the law authorizes an officer to do or not- to. do. a certain act which in his -judgment should be done or riot done, the court cannot substitute its own judgment to thaf of the officer and take his place, unless the action of-the officer is manifestly illegal, or arbitrary. That question was ventilated by this - Court in the recent case- of State ex rel. vs. Ray. " There is no evidence in this case that the action of the Superintendent was arbitráry or illegal. The evidence is that relator’s son’ had passed the elementary course of studies, or fhe seventh grade, and that he waá - entitled to enter a high school or'one teaching'the eighth grade. The evidence'is that'there was in -the City of Kenner a high school, or a school' of the • eighth,-- ninth, tenth and eleventh grades, and that relator’s - son had actually entered the eighth grade thereof, but had discontinued his • attendárice because- he found fault with the teachers and with the administration -of the school. There were 16 pupils in the eighth grade, 9 in the ninth, 3 in the tenth, and 5 in the eleventh grade. This testimony showed that there were “adequate schools of suitable grade” to meet relator’s demands. But relator’s petition, disclosed no cause of action. He did not solicit the “permit’.’ for the want of “adequate schools of suitable grade”, which’ was the only reason recognized by ' the law' to permit him to enter the school of an adjoining parish. He alleged .that it was on account “of the advance studies- and desiring to complete the education of his said, child”. This was not a. reason for the permit. It is evident that he wanted the permit because he preferred the Warren Easton School to the Kenner School,, and that the law will not permit. It is therefore ordered that the judgment' herein against J, C. Ellis, ^Superintendent of. the Parish’ Public School be reversed and set aside - and that relator’s petition as- .against him -be. dismissed at relator’s cost in both, courts.