state, ex rel attorney general v land, 231 miss 529 (miss 1957)

8/14/2019 state, ex rel attorney general v land, 231 miss 529 (miss 1957)

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STATE, ex rel. ATTORNEY GENERAL v. LAND, 231 Miss. 529(Miss.06/10/1957)

[1] SUPREME COURT OF MISSISSIPPI

[2] No. 40386

[3] 1957.MS.40094 231 Miss. 529

[4] JUNE 10, 1957

[5] STATE, ex rel. ATTORNEY GENERALv.

LAND

[6] 1. Quo warranto - definition.

[7] "Quo warranto" is a writ of inquiry as to the warrant for doing acts of

which complaint is made, and is the remedy by which the Statedetermines the legality of a claim which a party asserts to the use and

exercise of an office or franchise. Secs. 1120-1145, Code 1942.

[8] 2. Quo warranto - functions of writ.

[9] One of the functions of a writ of quo warranto at common law andunder the statutes was to serve as an appropriate means fordetermining the right or title to a public office, and to oust an

incumbent who is unlawfully holding it. Secs. 1120-1145, Code 1942.

[10] 3. Quo warranto - evidence and proof - as to title or right to publicoffice - where state is relator - burden of proof.

[11] In a quo warranto proceeding to try title to a public office, where

State is the relator instead of an individual claimant, burden is on thedefendant to prove his right or title to the office, and he must showgood legal title and not merely a colorable one, and must show a

right de jure and not merely de facto.


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[12] 4. Quo warranto - evidence and proof - where brought on relation ofprivate litigant - burden of proof.

[13] Where a suit in quo warranto is brought on relation of a privatelitigant, the petitioner must establish his right to the office, because

such suit is not a public action, but in the nature of a private suit.

[14] 5. Quo warranto - petition against County Superintendent ofEducation on ground that he unlawfully held office and for purpose of

trying right thereto - burden of proof.

[15] In petition for quo warranto against County Superintendent ofEducation on the ground that he unlawfully held public office and for

the purpose of trying his right thereto, burden of proof was uponSuperintendent to contest his legal right to the office. Sec. 9, Chap.10, Laws 1953 (Ex. Sess.).

[16] 6. Estoppel - in quo warranto against County Superintendent of

Education on ground that he unlawfully held office and for purpose oftrying right thereto - advisory opinion of Attorney General as notworking estoppel against State.

[17] In quo warranto to try right to office of County Superintendent ofEducation, advisory opinion of the Attorney General to CountySuperintendent of Education whether service as an on-the-farmveterans' teacher constituted experience in an administrative positionin public schools as required by the Act, which stated that suchpresented a factual as well as a legal question but gave the opinion

that such teaching would constitute administrative experience, did notestop the State where the defendant did not have the other necessaryqualifications Sec 9, Chap 10, Laws 1953 (Ex. Sess.).

[18] 7. Schools and school districts - veterans' on-the-farm teaching - asnot constituting "experience in an administrative position" withinstatute respecting qualifications of County Superintendent ofEducation

[19] Veterans' on-the-farm teaching does not constitute "experience in anadministrative position" in public schools within the statute respectingqualifications of a County Superintendent of Education Sec. 9, Chap.

10, Laws 1953 (Ex. Sess.).


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[20] 8. Decree - in quo warranto to try title to office of CountySuperintendent of Education - adverse decree in prior suit by

Superintendent against Democratic Executive Committee - as notbinding on State and Attorney General who were not parties to formeraction.

[21] In suit in quo warranto to try title to office of County Superintendentof Education, where Superintendent had brought suit against membersof the Democratic Executive Committee and a decree pro confessowas taken against 14 of them, only one member having answered, and

Chancery Court ordered Committee to place Superintendent's nameon the primary election ballot, holding the 1953 statute

unconstitutional and that he had qualified under the 1944 Act, thisdecree against the Democratic Executive Committee was not bindingupon State, or Attorney General in present suit since they were not

parties to the former action Sec. 1, Chap. 189, Laws 1944; Sec. 11,Chap. 10, Laws 1953 (Ex. Sess.).

[22] 9. Education - refusal of Department of Education to give candidatefor office of County Superintendent of Education certificate of

eligibility to be a candidate for and to hold such office equivalent ofan administrative ruling that candidate was not

[23] eligible to secure a Class A certificate for Administrators under 1953

Act.

[24] Where Department of Education refused to give elected CountySuperintendent of Education a certificate of eligibility to be acandidate for and to hold the office, such ruling was equivalent of an

administrative ruling by the department that the Superintendent wasnot eligible to secure a Class A Certificate for Administrators underthe 1953 Act. Secs. 6245-01 to 6245-14, 6245-02, Code 1942; Secs.

27, 28, Chap. 20, Laws 1953 (Ex. Sess.).

[25] 10. Schools and school districts - record established that duly electedCounty Superintendent of Education failed to comply with Actrespecting qualifications of such office.

[26] Record established that duly elected County Superintendent ofEducation failed to comply with the Act respecting qualifications ofthe Superintendent, in that he did not have a Class A Certificate for

Administrators or the required graduate work in school administration


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or five years actual experience in an administrative position in apublic school or a certificate of eligibility from the State Department

of Education. Secs. 6245-01 to 6245-14, 6245-02, 6281, Code 1942;Secs. 27, 28, Chap. 20, Laws 1953 (Ex. Sess.).

[27] 11. Constitutional law - Section 204 of Constitution vests inLegislature as to County Superintendents of Education, full legislative

power of State granted by Section 33 of Constitution.

[28] The constitutional provision giving the Legislature power to fixqualifications, compensation and duties of the Superintendent of

Education and stating that the Legislature may also abolish the officevests in the Legislature, as to County Superintendents of Education,

the full legislative power of the State granted by Section 33 of theConstitution. Secs. 33, 204, 250, Const. 1890; Sec. 9, Ch. 10, Laws1953 (Ex. Sess.).

[29] 12. Constitutional law - Section 250 of Constitution as not affectingLegislature's power in prescribing qualifications of CountySuperintendents of Education.

[30] The constitutional provision that all qualified electors shall be eligibleto office except as otherwise provided in the Constitution is not

limited in application to County Superintendents of Education, anddoes not affect Legislature's power in prescribing qualifications for

the County Superintendent of Education. Secs. 204, 250, Const. 1890;Sec. 9, Chap. 10, Laws 1953 (Ex. Sess.).

[31] 13. Constitutional law - statute establishing qualifications for CountySuperintendents of Education not unconstitutional as an improper

delegation of legislative power to State Board of Education andDepartment of Education.

[32] The statute establishing qualifications for the County Superintendent

of Education is not unconstitutional as an improper delegation oflegislative power to the State Board of Education and the Departmentof Education. Sec. 9, Chap. 10, Sec. 27, Chap. 20, Laws 1953 (Ex.Sess.).

[33] 14. Education - statutes - power of Board of Education to promulgateand administer rules governing issuance of all teachers' certificates.


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[34] Under the statute, the Board of Education is given power topromulgate rules governing the issuance of all teachers' certificates

and to administer them. Sec. 9, Chap. 10, Sec. 27, Chap. 20, Laws1953 (Ex. Sess.).

[35] 15. Constitutional law - Legislature cannot delegate its power to makea law, but it can delegate to an administrative agency power to

determine state of things upon which the law makes its applicationdepend.

[36] Although the Legislature cannot delegate its power to make a law, it

can delegate to an administrative agency the power to determine stateof things upon which the law makes or intends to make its

application depend.

[37] 16. Constitutional law - statute delegating legislative power mustreasonably define area in which administrative agency operates andlimitations upon its powers.

[38] A statute delegating legislative power must reasonably define the area

in which the administrative agency operates and the limitation uponits powers.

[39] 17. Constitutional law - statute establishing qualifications for County

Superintendents of Education not invalid as containing anunreasonable discrimination in favor of incumbents of the office oneffective date of Act.

[40] The statute establishing qualifications for County Superintendents of

Education is not invalid as containing an unreasonable discriminationin favor of incumbents of the office on the effective date of the Acton the ground that such exemption violates equal protection and due

process clauses of the Federal and State Constitutions, and beinginseparable from the remainder of the statute, the entire statute must

fall. Amend. XIV, U. S. Const.; Sec. 9, Chap. 10, Laws 1953 (Ex.Sess.).

[41] 18. Constitutional law - State may classify persons for legislation andpass laws applicable only to persons or objects within designated

class, provided such classification is reasonable.

[42] A State may classify persons for legislation and pass laws applicable


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only to persons or objects within a designated class, provided suchclassification is reasonable.

[43] 19. Constitutional law - question of classification of persons primarilyfor Legislature and does not become a judicial question except todetermine whether it is unreasonable.

[44] Question of classification of persons is primarily for the Legislatureand does not become a judicial question except to determine whetherit is clearly unreasonable.

[45] 20. Constitutional law - presumption obtains in favor of legislative

classification.

[46] A presumption obtains in the favor of legislative classification of thereasonableness and fairness of legislative action and of the legitimategrounds of distinction.

[47] 21. Constitutional law - presumption in favor of legislative

classification - rebuttable - courts not to declare classification invalidunless.

[48] Although presumption in favor of a classification is not conclusive

and is rebuttable, courts should not declare it invalid unless it is ofsuch character as to preclude the assumption that it rests upon anyrational basis within the knowledge and experience of the legislators.

[49] 22. Quo warranto - in proceeding to try right to office of County

Superintendent of Education. State not barred and estopped fromenforcing act respecting qualifications of Superintendent on ground ofdelay in bringing action within a reasonable time.

[50] In quo warranto to try right to office of County Superintendent ofEducation, State was not barred from enforcing the Act respectingqualifications of County Superintendent on ground of delay in notbringing action in a reasonable time. Sec. 9, Chap. 10, Laws 1953(Ex. Sess.).

[51] 23. Quo warranto - not writ of right - issues in sound discretion ofcourt.


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[52] The writ of quo warranto is not a writ of right, but issues in the sounddiscretion of the court.

[53] 24. Quo warranto - in proceeding to try right to office of CountySuperintendent of Education - under record in case, it was duty ofSupreme Court to enforce statute and issue writ finding

[54] Superintendent was exercising office without authority and removing

him therefrom.

[55] In quo warranto to try title to office of County Superintendent ofEducation, where judgment of the Circuit Court for the

Superintendent was not placed upon a discretionary exercise of powerin denial of the writ, but on an erroneous premise that the statute wasunconstitutional and it was undisputed that the superintendent did notcomply with the substantial requirements of the Statute and the Actwas valid and constitutional, Supreme Court had duty to enforce thestatute and to issue the writ finding that the superintendent was

exercising the office without authority and removing him therefrom.Sec. 9, Chap. 10, Laws 1953 (Ex. Sess.); Sec. 1129, Code 1942.

[56] Headnotes as approved by Ethridge, J.

[57] APPEAL from the Circuit Court of Kemper County; JOHN D.GREENE, JR., Judge.

[58] Suit in quo warranto by State of Mississippi, ex rel. Joe T. Patterson,Attorney General, to try the right of J. Chandler Land to office ofSuperintendent of Public Education in Kemper County. From anadverse judgment, the State on relation of the Attorney Generalappealed. Reversed and judgment rendered for the State.

[59] Wm. G. Burgin, Jr., Columbus; Ney M. Gore, Jr., Marks, forappellant.

[60] I. The Legislature has all political power not specifically vested in theFederal Government by the United States Constitution nor denied tothe Legislature by the State Constitution. Board of Trustees ofUniversity of Mississippi v. Waugh, 105 Miss. 623, 62 So. 827,L.R.A. 1915D 588, Ann. Cas. 1916E 522, 237 U.S. 589, 59 L. Ed.

1131, 35 S. Ct. 720; State ex rel. Greaves, Dist. Atty. v. Henry, 87

Miss. 125, 40 So. 152, 5 L.R.A. (N.S.) 340. Griffith's Mississippi


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Constitutions, pp. 25, 40.

[61] II. The Mississippi Constitution of 1890 is not a grant of power to the

Legislature but is a limitation upon the powers of the Legislature.Albritton v. City of Winona, 181 Miss. 75, 179 So. 799, 115 A.L.R.1436,

[62] 303 U.S. 627, 58 S. Ct. 766, 82 L.Ed. 1098; Farrar v. State, 191 Miss.1, 2 So. 2d 146; Martin v. First National Bank of Hattiesburg, 176Miss. 338, 164 So. 896; Miller v. State, 130 Miss. 564, 94 So. 766;Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505; St. Louis & S. F. R.

Co. v. Benton County, 132 Miss. 325, 96 So. 689; State v. Edwards,93 Miss. 704, 46 So. 964; State v. Grenada County, 141 Miss. 701,

105 So. 541; State v. Speakes, 144 Miss. 125, 109 So. 129.

[63] III. All statutes are presumed to be constitutional. Burge v. PearlRiver Co., 213 Miss. 752, 57 So. 2d 718; California Co. v. Oil & GasBoard, 200 Miss. 824, 27 So. 2d 542, 28 So. 2d 120; Coleman v.Trunkline Gas Co., 218 Miss. 285, 61 So. 2d 276, 63 So. 2d 73, 346U.S. 824, 98 L.Ed. 349, 74 S. Ct. 41; Commodore Corp. v. Davis, 178Miss. 376, 172 So. 867; Gabriel v. Brame, 200 Miss. 767, 28 So. 2d

581; Hart v. State, 87 Miss. 171, 39 So. 523; Hinds County v.Johnson, 133 Miss. 591, 98 So. 95; Johnson v. Reeves & Co., 112Miss. 227, 72 So. 925; Kennington-Saenger Theatres v. State, 196

Miss. 841, 18 So. 2d 483, 153 A.L.R. 383; Lawrence v. MississippiState Tax Comm., 162 Miss. 338, 137 So. 503, 286 U.S. 276, 76 L.Ed.

1102, 52 S. Ct. 556, 87 A.L.R. 374; Mai v. State, 152 Miss. 225, 119So. 177; Miller v. State, supra; Natchez & Southern R. Co. v.Crawford, 99 Miss. 697, 55 So. 596; Quinn v. City of McComb, 212Miss. 730, 55 So. 2d 479; Russell Investment Corp. v. Russell, 182Miss. 385, 178 So. 815, 182 So. 102; Sheffield v. Reece, 201 Miss.133, 28 So. 2d 745; Standard Oil Co. v. Stone, 191 Miss. 897, 199 So.

110; State v. Edwards, supra; State v. Gilmer Gro. Co., 156 Miss. 99,125 So. 714; State v. Jones, 106 Miss. 522, 64 So. 241, 469; State v.Quitman County, 181 Miss. 818, 181 So. 313; State; v. Roell, 192

Miss. 873, 7 So. 2d 867; Sugg v. Hendrix, 142 Fed. 2d 740; TecheLines v. Dayforth, 195 Miss. 226, 12 So. 2d 784; Turner v. Quitman

County, 196 Miss. 746,

[64] 18 So. 2d 122; Wheeler v. Shoemake, 213 Miss. 374, 57 So. 2d 267.

[65] IV. Wherever possible, it is the duty of the Court to uphold theconstitutionality of statutes. Hart v. State supra; Miller v. State, supra;Sheffield v. Reece, supra, State v. Wheatley, 113 Miss. 555, 74 So.

427.


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[66] V. Where there is a reasonable doubt as to the constitutionality of astatute, then the constitutionality of that statute must be upheld by this

Court, Board of Trustees of University of Mississippi v. Waugh,supra; Ivy v. Robertson, 220 Miss. 364, 70 So. 2d 862; Miller v. State,supra; Natchez & Southern R. Co. v. Crawford, supra; Quinn v. Cityof McComb, supra; Russell Investment Corp. v. Russell, supra; State

v. Edwards, supra; State ex rel. Greaves, Dist. Atty. v. Henry, supra.

[67] VI. Section 9, Chapter 10, Laws of the Extraordinary Session of 1953,is constitutional. Board of Trustees of University of Mississippi v.

Waugh, supra; Burnham v. Sumner, 50 Miss. 517; McCool v. State,149 Miss. 32, 115 So. 121; Miller v. State, supra; St. Louis & S. F. R.

Co. v. Benton County, supra; Wynn v. State, 67 Miss. 312, 7 So. 353;Sec. 4, Art. 8, Constitution 1869; Sec. 204, Constitution 1890.

[68] J. D. Guyton, John D. Guyton, Kosciusko; Helen J. McDade, DeKalb,for appellee.

[69] I. The Legislature has no power, under Section 204, of the

Constitution, to prescribe specific qualifications for an electiveCounty Superintendent of Education. Burnham v. Sumner, 50 Miss.517, McCool v. State ex rel. Howie, Dist. Atty., 149 Miss. 82, 115 So.

121; Wynn v. State, 67 Miss. 312, 7 So. 353; Secs. 18, 250, 265,Constitution 1890.

[70] II. Section 9, Chapter 10, Acts of the Extraordinary Session of 1953,is an unconstitutional delegation of legislative power. Abbott v. State,106 Miss. 340, 63 So.

[71] 667; Clark v. State, 169 Miss. 369, 152 So. 820; Foreman, ex rel.Dist. Atty. v. Oberlin, 222 Miss. 42, 75 So. 2d 56; Lee v. Memphis

Publishing Co., 195 Miss. 264, 14 So. 2d 351, 152 A.L.R. 1428;Livingston, Dist. Atty. v. Bounds, 52 So. 2d 660; State ex rel. Atty.

Gen. v. County School Board of Quitman County, 181 Miss. 818, 181So. 313; Tatum v. Wheeless, 180 Miss. 800, 178 So. 95; Wilkins v.Large, 163 Miss. 279, 141 So. 585; Wynn v. State, 67 Miss. 312, 7So. 353; Secs. 2, 33, 204, 250, Constitution 1890; Secs. 6563, 6564,Code 1930; Secs. 6245-01, 6245-14, 6253, Code 1942; Chap. 189,Laws 1944; Chap. 297, Laws 1946; Chap. 105, Laws 1955 (Ex.

Sess.); 11 Am. Jur., Constitutional Law, Secs. 214-215 pp. 921, 924.

[72] III. Section 9, Chapter 10, Acts of Extraordinary Session of 1953, is


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unconstitutionally discriminatory. Adams v. Standard Oil Co., 97Miss. 879, 53 So. 692; American Express Co. v. Beer, 107 Miss. 528,

65 So. 575; Barthelmess v. Cukor, 231 N.Y. 435, 132 N.E. 140, 16A.L.R. 1404; Clark v. State, supra; Conolly v. Union Sewer Pipe Co.,

184 U.S. 450, 22 S. Ct. 431, 46 L.Ed. 679; Lowry v. City ofClarksdale, 154 Miss. 155, 122 So. 195; McCool v. State ex rel.Howie, Dist. Atty., supra; Shaw v. City Council of Marshalltown, 131Iowa 135, 104 N.W. 1121, 10 L.R.A. (N.S.) 825; Sorrenson v. Webb,

111 Miss. 87, 71 So. 273; Wheeler v. Shoemake, 213 Miss. 374, 57So. 2d 267; Wynn v. State, supra; Sec. 1, Amend. XIV, U. S.Constitution; Secs. 1, 2, 6, 7, 87, Constitution 1890; Chap. 10, Secs. 8,12, Laws 1953 (Ex. Sess.); 12 Am. Jur., Secs. 469, 479 pp. 129, 146;50 Am. Jur., Statutes, Sec. 439 p. 460.

[73] IV. Appellant barred by estoppel and laches - quo warranto beingdiscretionary. Capital Stages, Inc. v. State ex rel. Hewitt, Dist. Atty.,157 Miss. 576, 128 So. 759; City of Winter Haven v. State of Florida

ex rel. Landis, Atty. Gen., 125 Fla. 392, 170 So. 100; Denkmann Lbr.

[74] Co. v. Morgan, 219 Miss. 269, 69 So. 2d 802; Humphreys v. City ofGreenwood, 159 So. 657; Lee v. Duncan, 220 Miss. 234, 70 So. 2d615; Reedy v. Johnson's Estate, 200 Miss. 205, 26 So. 2d 685; State

ex rel. Jordan, Dist. Atty. v. Mayor and Commissioners of City ofGreenwood, 157 Miss. 836, 127 So. 704, 129 So. 682; Sec. 203,Constitution 1890; Secs. 1122, 1128, 3105 et seq., 3204 et seq., 3228,

3281, 4045, Code 1942; 19 Am. Jur., Estoppel, Sec. 166 p. 818; 44Am. Jur., Quo Warranto, Sec. 15 p. 97.

[75] APPELLANT IN REPLY.

[76] I. Answer to Point I of appellee's brief. McCool v. State ex rel.

Howie, Dist. Atty., 149 Miss. 82, 115 So. 121; Wilkins v. Large, 163Miss. 297, 141 So. 585; Wynn v. State, 67 Miss. 312, 7 So. 353; Secs.204, 250, Constitution 1890; Chap. 10, Secs. 11, 12, Laws 1953.

[77] II. No part of Section 9, Chapter 10, Laws of 1953 was repealed byChapter 105, Laws of 1955. Ascher & Baxter v. Edward Moyse &Co., 101 Miss. 36, 57 So. 299; Burdeaux v. Cowan, 182 Miss. 621,181 So. 852; Coker v. Williamson, 142 Miss. 1, 106 So. 886;Commercial Bank v. Chambers, 8 Sm. & M. 9; Dugger v. PanolaCounty, 139 Miss. 552, 104 So. 459; Ex parte McInnis, 98 Miss. 773,

54 So. 260; Gilmore Puckett Grocery Co. v. J. Lindsey Wells Co.,103 Miss. 468, 60 So. 580; Green v. Hutson, 139 Miss. 471, 104 So.171; Harrell v. Johnston, 109 Miss. 570, 68 So. 752; Holly Springs v.

Marshall County, 104 Miss. 752, 61 So. 703; Mississippi Highway


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Dept. v. Haines, 162 Miss. 216, 139 So. 168; Panola County v. Sardis,171 Miss. 490, 157 So. 579; Pattison v. Clingan, 93 Miss. 310, 41 So.

503; Planters Bank v. State, 6 Sm. & M. 628; Richards v. Patterson,30 Miss. 583; State v. Jackson, 119 Miss. 727, 81 So. 1; White v.

Johnson, 23 Miss. 668; Chap. 105, Laws 1955.

[78] III. Answer to Point II of appellee's brief. Abbott v. State, 106 Miss.

340, 63 So. 667; Bailey & Bean v. Wilson,

[79] 129 Miss. 29, 90 So. 362; Clark v. State, 169 Miss. 369, 152 So. 820;Hawkins v. Hoye, 108 Miss. 282, 66 So. 741; New Orleans, M. & C.

R. Co. v. State, 110 Miss. 290, 70 So. 355; Tatum v. Wheeless, 180Miss. 800, 178 So. 95; Unemployment Compensation Commission v.

Barlow, 191 Miss. 156, 2 So. 2d 544; Wilkins v. Large, supra; Secs.6245-01 to 6245-14, 6281, Code 1942; Chap. 20, Sec. 27, Laws 1953.

[80] IV. Answer to Point III of appellee's brief. Adams v. Standard OilCo., 97 Miss. 879, 53 So. 692; American Express Co. v. Beer, 107Miss. 528, 65 So. 575; Ballard v. Mississippi Cotton Oil Co., 81 Miss.507, 34 So. 533, 62 L.R.A. 407, Barthelmess v. Cukor, 231 N.Y. 435,132 N. E. 140, 16 A.L.R. 1404; Clark v. State, supra; Enochs v. State,

133 Miss. 107, 97 So. 534; Huggins v. Home Mutual Fire Ins. Co.,107 Miss. 650, 65 So. 646; In re Extension of Boundaries of City ofBrookhaven, 217 Miss. 860, 65 So. 2d 436; Magoun v. Illinois Trust

& Savings Bank, 170 U.S. 283, 18 S. Ct. 595, 42 L.Ed. 1037;Metropolitan Casualty Insurance Co. v. Brownell, 79 L.Ed. 1070, 294

U.S. 580; Miller v. Lamar Life Insurance Co., 158 Miss. 753, 131 So.282; Shaw v. City Council of Marshalltown, 131 Iowa 135, 104 N.W.1121, 10 L.R.A. (N.S.) 825; Standard Oil Co. v. Stone, 191 Miss. 897,2 So. 2d 155; State v. Evans-Terry Co., 173 Miss. 526, 159 So. 658;State v. Gilmer Grocery Co., 156 Miss. 99, 125 So. 710; State TaxComm. v. Flora Drug Co., 167 Miss. 1, 148 So. 373; Stone v. General

Electric Contracts Corp., 193 Miss. 317, 7 So. 2d 811; Waugh v.Board of Trustees of the University of Mississippi, 105 Miss. 623, 62So. 827.

[81] V. Answer to Point IV of appellee's brief. Capitol Stages, Inc. v. Stateex rel. Hewitt, Dist. Atty., 157 Miss. 576, 128 So. 759; City of WinterHaven v. City of Florida ex rel. Landis, Atty. Gen., 125 Fla. 392, 170So. 100; Denkmann Lbr. Co. v. Morgan, 219 Miss. 269, 69

[82] So. 2d 802; Jones v. State, 207 Miss. 208, 42 So. 2d 128; Kennington-Saenger Theatres v. State, 196 Miss. 841, 18 So. 2d 483; Lee v.Duncan, 220 Miss. 334, 70 So. 2d 615; McKenzie v. Thompson, 186

Miss. 524, 191 So. 487; May v. Young, 165 Miss. 35, 143 So. 703;


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Moore v. Tunica County, 143 Miss. 821, 107 So. 659; O'Brien v.Wheelock, 184 U.S. 450, 46 L.Ed. 636; Omar v. West, 186 Miss. 136,

188 So. 917; Pate v. Bank of Newton, 116 Miss. 666, 77 So. 608;Pearl River County v. Lacey Lbr. Co., 123 Miss. 85, 86 So. 755;

Reedy v. Johnson, 200 Miss. 205, 26 So. 2d 685; Shepard v. Barron,194 U.S. 553, 48 L. Ed. 1115; State v. City of Greenwood, 157 Miss.836, 127 So. 704, 129 So. 682.

[83] ETHRIDGE, J.

[84] This case originated with a petition or information filed by Joe T.

Patterson, Attorney General of the State of Mississippi, for a writ ofquo warranto against appellee, J. Chandler Land, who is serving as

the Superintendent of Public Education in Kemper County, on theground that he unlawfully holds and exercises that public office, andfor the purpose of trying his right to that office.

[85] The case involves three questions: (1) Whether Section 9 of Chaper10, Miss. Laws 1953, Ex. Sess., is constitutional; (2) if so, whether infact appellee Land fails to qualify under that statute; and (3) whetherthe undisputed facts would permit any discretionary refusal of the

writ.

[86] The circuit court recognized that Land was not qualified under thestatute, but, holding the act to be unconstitutional, it dismissed the

State's petition. We think the writ should issue.

[87] 1.

[88] Section 9 of Chapter 10 is part of the large body of new legislationenacted by the 1953 Extraordinary Session of the Legislature whichwas directed toward re-organizing

[89] the public school system of the State. It provides: "No person shall beeligible to the office of county superintendent of education unlesssuch person shall hold a certificate to be issued by the statedepartment of education certifying that he holds a Bachelor's Degreeand also that he shall hold, or be eligible to secure, a Class Acertificate for administrators as defined in the rules and regulations of

the State Department of Education covering the certification ofinstructional personnel, one-half of the work in which shall have beenin school administration, awarded by an institution approved by the

state department of education, and that he has not less than five (5)


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years' actual experience in an administrative position in some publicschool of the State of Mississippi, or of a state extending reciprocal

licensing of teachers to the State of Mississippi; provided that noperson who is serving as county superintendent of education at the

effective date of this act shall be ineligible for the office of countysuperintendent of education because of lack of the qualificationsprescribed by this section. It shall be unlawful for the electioncommissioners of any county to place the name of any person upon

the ballot as a candidate for county superintendent of education whodoes not qualify under the terms of this act; and, in counties whereinsuch office is appointive, it shall be unlawful for the county board ofeducation to appoint a person to such office who does not qualifyunder the terms of this act."

[90] It will be noted that this act expressly states that no one shall beeligible for the office unless he meets certain specified requirements.And it further makes it "unlawful for the election commissioners of

any county to place the name of any person upon the ballot as acandidate for county superintendent of education who does notqualify under the terms of this act."

[91] (Hn 1) In its broadest sense quo warranto is a writ of inquiry as to the

warrant for doing acts of which complaint

[92] is made. It is the remedy by which the state determines the legality ofa claim which a party asserts to the use and exercise of an office or

franchise. 44 Am. Jur., Quo Warranto, Section 2. The writ came intoexistence at some unascertained period early in the history of thecommon law. In Mississippi it is defined in a chapter in theMississippi Code of 1942, Sections 1120-1145.

[93] (Hn 2) One of the functions of the writ at common law and under thestatutes is to serve as an appropriate and adequate means fordetermination of the right or title to a public office, and to oust an

incumbent who is unlawfully holding the same. Ibid., Section 22.Code Section 1120 provides for the use of the writ of quo warranto in

ten different types of cases, and in part, states:

[94] "The remedy by information in the nature of a quo warranto shall lie,in the name of the state, against any person or corporation offendingin the following cases, viz.:

[95] " First. - Whenever any person unlawfully holds or exercises the

functions of any public office, civil or military, or franchise, or any


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office in any corporation, city, town, or village, and to try the right toany such office. "

[96] Section 1128 states:" All such informations shall be deemed civilproceedings, and shall be put at issue and tried at the return termaccording to the rules which govern the trials of other civil causes. "

[97] And Section 1129 describes the judgment to be rendered:" Ifjudgment be against the defendant, finding that he has beenexercising the functions of an office without authority, he shall beremoved from office and debarred therefrom, and shall pay costs. The

court shall order the defendant to deliver over all records, books, andpapers in his custody or under his control, belonging to the office, and

may make and enforce all orders proper to carry its judgment intoeffect. "

[98] (Hn 3) It is well-established that, in a quo warranto proceeding to trythe title to a public office, where the

[99] state is the relator instead of an individual claimant, the burden is on

the defendant to prove his right or title to the office. It is incumbentupon him to show a good legal title and not merely a colorable one,for he must rely wholly on the strength of his own title. The

defendant must show a right de jure and not merely de facto. Jones v.State, 207 Miss. 208, 213, 42 So. 2d 123 (1949); 44 Am. Jur., Quo

Warranto, Section 107. (Hn 4) On the other hand, where a suit isbrought on the relation of a private litigant, the petitioner has theburden of establishing his right to the office, because such suit is nota public action, but in the nature of a private suit. State, ex rel., Parksv. Tucei, 175 Miss. 218, 223, 166 So. 370 (1936); Hood v. Cneso, 179Miss. 234, 174 So. 552 (1937). (Hn 5) Hence the burden of proof is

upon defendant Land in this action brought by the State, through itsAttorney General, to contest his legal right to the office.

[100] 2.

[101] The State filed this petition for quo warranto on May 12, 1956, aboutfour and one-half months after Land took office as Superintendent ofEducation for Kemper County. Briefly stated, the petition chargedthat Land procured his name to be placed on the primary and general

election ballots for County Superintendent of Education contrary tothe provisions of Section 9, Chapter 10; that he received the highestnumber of votes in each election, was declared elected, issued a

commission, and is now unlawfully occupying the office and


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performing the functions thereof in violation of the laws of the state.

[102] It was charged that appellee does not meet the qualifications of the

statute because he does not hold and is not eligible to secure a ClassA certificate for Administrators as defined in the rules and regulationsof the State Board and Department of Education. Land's answeradmitted that he did not have and was unable to secure

[103] such a certificate. The petition averred that Land does not have twelvesemester hours or sixteen quarter hours of graduate credit in schooladministration, as required by these rules. He admitted that he did not

have this requirement.

[104] The petition charged that he does not have five years actualexperience in an administrative position in a public school, which the

answer denied. It was averred that defendant does not have acertificate of eligibility for the office of County Superintendent,which is required by the statute as a condition precedent to theplacing of his name on the general election ballot. The answer ineffect admits that defendant does not hold a certificate of eligibilityunder the 1953 statute, but it pleads affirmatively that Land holds

such a certificate from the State Department of Education datedMarch 3, 1951, which was issued under Mississippi Laws 1938,Chapter 231. However, this statute under which the 1951 certificate

was issued, being Code 1942, Section 6253, was repealed by the 1953Laws, Ex. Sess., Chapter 10, Section 11.

[105] The petition charged and defendant admitted that he had neverpreviously served and was not serving on December 28, 1953, asSuperintendent of Education of Kemper County, so defendant doesnot come within the exception in Section 9 of Chapter 10. Hence the

petition alleged that defendant is not legally qualified to hold theoffice; that he is now usurping it and its functions and powers; andprayed that the court would enter an order ousting him from the office

and declaring the same vacant.

[106] In addition to the above admissions in the answer of Land, defendantpleaded that he had received a majority of the votes in the primaryand general elections; he denied that it was unlawful for his name tobe upon the ballots; admitted that he is now holding the office, andaverred that he is holding it in accordance with the statutes

[107] prior to 1953. The answer claimed that the 1953 Act is

unconstitutional, because it is not authorized by Section 204, is an


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invalid delegation of legislative power, and contains an unreasonableclassification as to incumbents. The answer pleads affirmatively a

letter from the Attorney General, dated January 4, 1955, to I. M.Latimer, giving an opinion that service as an On-the-Farm Veterans'

teacher constitutes experience in an administrative position; and adecree of the Chancery Court of Kemper County of May 19, 1955, inwhich, in a suit against the members of the Kemper County

Democratic Executive Committee, that court ordered the Committeeto place Land's name upon the primary election ballot, holding thatthe 1953 Act was unconstitutional. The answer concluded that forthese reasons the State is estopped from contesting Land's right to theoffice.

[108] At the hearing in the Circuit Court of Kemper County, there was

introduced in evidence a stipulation of facts executed by attorneys forboth sides. It admits that defendant does not hold and is" not eligibleto secure a Class A Certificate for Administrators as defined in the

rules and regulations of the Board of Education of the State ofMississippi, covering the certification of institutional personnel "; thatBulletin 130, entitled" `Rules and regulations for the certification ofinstructional personnel' contains the rules and regulations of the StateBoard of Education covering the issuance of the Class A certificatesfor administrators "; and that" the Department of Education of the

State of Mississippi is the administrative arm of the Board ofEducation of the State . . . and executes and implements andadministers the rules, regulations and policies of the Board of

Education. . . "

[109] The stipulation further admits that defendant does not have twelvesemester or sixteen quarter hours of graduate credit in schooladministration, as required by the statute and the rules of the Board ofEducation. It states

[110] defendant has three years actual experience in an administrativeposition in the public schools as a high school principal; and he has

had about five years experience as a teacher in the On-the-FarmVeterans' school conducted in Kemper County. It admits that

defendant has never secured a certificate of eligibility as a candidatefor the office of County Superintendent of Education under the 1953laws. The State Department of Education advised him that he was noteligible for a Class A certificate, and refused to issue one to him.

[111] (Hn 6) Two affirmative pleas made by appellee may be disposed of atthis point. The advisory opinion of the Attorney General of January 4,1955, to I. M. Latimer, Superintendent of Education in Neshoba

County, was in response to a letter from Latimer which inquired


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whether service as an On-the-Farm Veterans' teacher constitutesexperience in an administrative position in public schools. The

Attorney General's letter noted that this" presents a factual as well asa legal question ", but gave the opinion that such teaching would

constitute administrative experience. The inquiry of Latimer and theopinion assumed that the person in question had" all the othernecessary qualifications. "But appellee does not have the othernecessary qualifications, aside from holding a Bachelor's Degree. (Hn

7) Moreover, we do not think that Veterans' On-the-Farm teachingconstitutes experience in an administrative position in public schools,within the terms of Section 9 of Chapter 10.

[112] (Hn 8) Land brought a suit against the fifteen members of the KemperCounty Democratic Executive Committee. A decree pro confesso was

taken against fourteen of them; only one answered. On May 19, 1955,the Chancery Court of Kemper County ordered the Committee toplace Land's name on the primary election ballots, holding the 1953

statute was unconstitutional and he had qualified under the 1944 Act,Laws of 1944, Ch. 189, which was repealed in 1953. But this decreeof the

[113] chancery court against the Kemper County Democratic Executive

Committee is of course not binding upon the State or the AttorneyGeneral in the present suit, since they were not parties to the formeraction.

[114] The circuit court observed that there is no real issue concerningappellee's failure to comply with the statute. The only question iswhether Section 9 violates Section 204 of the Constitution. The trialcourt held that it does, concluding the Legislature does not have theauthority to prescribe any qualifications for an elected countysuperintendent of education other than that he should be a qualified

elector, as prescribed by Constitution Section 250. So the judgment ofthe circuit court held that the statute is unconstitutional, Land wasqualified to occupy and hold the office, dismissed the State's petition,

and denied the requested writ of quo warranto. This appeal is fromthat judgment.

[115] 3.

[116] An appraisal of the constitutional issues must be based upon an

understanding of the constitutional and legislative history of theoffice of county superintendent of education in Mississippi.


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[117] Section 4 of Article 8 of the Mississippi Constitution 1869, which wasin effect before the present Constitution of 1890, provided:" There

shall be a superintendent of public education in each county, whoshall be appointed by the board of education, by and with the advice

and consent of the senate, whose term of office shall be two years,and whose compensation and duties shall be prescribed by law,Provided, That the legislature shall have power to make said office of

county-school superintendent of the several counties elective as othercounty officers are. "It is noted that this provision did not state thatthe Legislature could prescribe qualifications.

[118] In Burnham v. Sumner, 50 Miss. 517 (1875), Sumner filed an

information in the nature of a quo warranto, in

[119] which he alleged that he was appointed by the state board of publiceducation as county superintendent of public education for Holmes

County, and was confirmed by the Senate in January 1875. Burnhamanswered that he had been appointed to such office in November1872, and claimed that he had the right to hold over until hissuccessor was duly appointed. It was admitted that Sumner was neverexamined by the State Board of Examiners, and did not procure acertificate from the State Board of Education as required by the Act

of 1873. It was held that the statutory requirement that Sumner musthold such a certificate was a legitimate exercise of legislative power,so the relator Sumner was not entitled to the office. Hence the trial

court was reversed and the information dismissed. It was also heldthat, since the Constitution did not authorize a county superintendent

to hold over, respondent Burnham had no right to hold the office.

[120] Wynn v. State, 67 Miss. 312, 7 So. 353 (1889), was also decidedunder the 1869 Constitution, a short time before the ConstitutionalConvention of 1890. An Act of 1888 provided that in Yalobusha and

other named counties the county superintendent of education shouldbe elected. Section 2 stated that no person shall be eligible who doesnot hold a first grade certificate. Wynn was elected to this office in

Yalobusha County in November 1889, and entered upon its duties.The District Attorney on behalf of the State filed an information in the

nature of a quo warranto to try his right to the office. The respondenthad a certificate dated 1886, which the court held was not therequired certificate. The trial court held for the State, but on appealthe case was reversed. Construing the 1869 Constitution, including aprovision that all qualified electors are eligible for public office, theCourt held that the act requiring a first grade certificate was invalid.

The Legislature was not authorized by the Constitution to increase thequalifications for


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[121] county superintendent of education. The Court impliedly but notexpressly overruled Burnham v. Sumner.

[122] In less than a year after Wynn v. State, the new Constitution of 1890became effective. Section 204, with which we are here concerned,provides:" There shall be a superintendent of public education in eachcounty, who shall be appointed by the board of education by and with

the advice and consent of the senate, whose term of office shall befour years, and whose qualifications, compensation, and duties, shallbe prescribed by laws: Provided, That the legislature shall have powerto make the office of county school superintendent of the severalcounties elective, or may otherwise provide for the discharge of the

duties of county superintendent, or abolish said office. "(Emphasisadded.) As contrasted with the clause in the 1869 Constitution, it is

noted that Section 204 of the 1890 Constitution expressly providesthat the Legislature may prescribe the qualifications of the countysuperintendent of education, or may otherwise provide for the

discharge of his duties, or may abolish the office.

[123] Judge George Ethridge, in his Mississippi Constitutions (1928), pages373-374, states that the design of the Convention was to reservecontrol of the educational interests of the State in the Legislature; that

the clause authorizing the Legislature to fix qualifications" wasdesigned, among other things, to permit the Legislature to requirecertain educational qualifications "; and that under the 1869

Constitution the Court had held that the Legislature could not" requireadditional qualifications to that of being a qualified voter. "

[124] Pursuant to Section 204 of the 1890 Constitution, the Legislaturepromptly began establishing educational qualifications for countysuperintendents of education. It first made them applicable tosuperintendents who were appointive only. Code 1892, Sections

4257-4264. A committee of three examiners was appointed by theState Board of Education. No one could be a county

[125] superintendent unless he passed the examination provided for him by

such state board of examiners. See also Code 1892, Section 3964.

[126] However, at least as early as 1906, the Legislature, acting underConstitution Section 204, began requiring additional educationalqualifications for elected county superintendents of education. And

beginning in 1906 all county superintendents of education wereelected. Code 1906, Section 4809. That statute further provided:"Before any one shall be elected to the office he shall have attained

the age of twenty-one years, and shall be a qualified elector and a


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resident citizen of the state for four years and of the county for twoyears immediately preceding his election, and shall have passed the

examination provided for in the section following the next one andhave received a certificate accordingly. "

[127] Code 1906, Section 4811, further provided:" All applicants or

candidates for the office of county superintendent shall pass anexamination on the branches required for first grade license, and inaddition on the art of teaching. The examination shall be held in thecounty of the applicant by the state board of examiners, underregulations passed by the state board of education. Candidates orapplicants who prefer to take the examination at Jackson can do so by

giving the superintendent of education ten days' notice by registeredletter. "

[128] Since 1906 the Legislature has continuously exercised its power under

Constitution Section 204 to require county superintendents ofeducation to pass certain examinations, to meet stated minimumeducational requirements, and to have a certificate of eligibility fromthe State Board of Education before they were eligible to run for theoffice.

[129] By Chapter 283, Miss. Laws 1924, the State enacted new legislationdealing with county superintendents of education. It was embodied in

Miss. Code 1930, Section 6559-6580. Section 6559 created a stateboard of examiners

[130] appointed by the State Superintendent of Education. Their duties wereto prepare examinations for teachers, to grade applications, renewlicenses and" to examine all applicants or candidates for the office ofcounty superintendent of education under regulations passed by the

state board of education. "They must be elected in each county.Section 6562.

[131] Section 6563 provided:" Before anyone shall be eligible to the office

of county superintendent he shall be a qualified elector and a residentcitizen of the state for four years and of the county for two yearsimmediately preceding his election. He shall also hold a certificateattesting that he possesses the following educational and professionalqualifications:

[132] "1. Be a graduate of a high school requiring at least fifteen units forgraduation, or the equivalent thereof.


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[133] " 2. He must have had at least two years of successful experience as ateacher in the public schools of the state, or be a graduate of astandard college.

[134] "3. Pass the examination required by law.

[135] " 4. The state board of education shall enforce the requirements ofthis section. "

[136] Code 1930, Section 6564, further stated:" All applicants or candidatesfor the office of county superintendent of education except those whohold professional life licenses, shall pass the examination on the

branches required for first grade license, which license shall besubject to renewal under rules and regulations of the state board ofeducation. The examination shall be held in the county of theapplicant on questions prepared by the state board of examiners; thepapers shall be graded and the results of such examination shall bemade known speedily to said applicant by the state board of

examiners. Candidates or applicants who decide to take theexamination at the state capitol may do so, under regulations of thestate board of examiners. "

[137] In 1938 the Legislature again raised the standards for elected countysuperintendents. Laws 1938, Chapter 231, provided that" beforeanyone shall be eligible to hold the office of county superintendent ofeducation "he must be a qualified elector, a citizen of the State forfour years and of the county for two years. It further stated:" He shallalso hold a certificate attesting that he possesses the following

educational and professional qualifications:

[138] "1. For the term beginning the first Monday in January, 1940, andthereafter, he must have had not less than two years of college

training in an institution approved by the state board of examiners andin addition thereto must have had not less than two scholastic years ofexperience as county superintendent, school superintendent,supervisor or teacher in the public schools of the state; or he shallhave had not less than four (4) years of college training in an

institution approved by the state board of examiners.

[139] " Sec. 2. A candidate for the office of county superintendent ofeducation must hold a valid certificate from the state board ofexaminers certifying that he possesses the qualifications required by

this act, and it shall be unlawful for the election commissioners of

any county to place on the ballot the name of any candidate not so


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certified. For each such certificate issued by the state board ofexaminers shall be allowed a fee of one dollar to be paid by the

candidate applying for the same. "

[140] In 1944 the Legislature revised some of the organization of the StateDepartment of Education, and also a few provisions with reference to

county superintendents of education. Miss. Laws 1944, Chapter 189.Section 1 re-enacted the above-quoted Chapter 231, Laws of 1938,except it provided that the institution must be approved by the stateboard of education rather than the state board of examiners, and thecandidate must hold a valid

[141] certificate from the" division of certification ", rather than from the"

state board of examiners. "

[142] Before reaching the 1953 changes in the qualifications for candidatesfor county superintendent of education, two significant cases, whichwere decided after the effective date of Constitution Section 204,should first be analyzed.

[143] McCool v. State, ex rel., Howie, District Attorney, 149 Miss. 82, 115So. 121 (1928), is important because the court contrasted theconstitutional provisions concerning qualifications for candidates for

municipal aldermen and county officers with those of countysuperintendents of education. The district attorney filed a petition for

quo warranto against three aldermen of the City of Canton. Code1906, Section 3430, created certain limitations on the budgets ofmunicipalities, and stated:" In case of an increase of indebtedness notso authorized, the mayor and aldermen shall not succeed themselvesor each other. "The three respondents were each elected to anotherterm of office. This suit was brought to remove them because in their

prior terms they had violated the quoted statute. The question waswhether the Legislature could impose upon candidates for aldermen adisqualification in addition to that provided for in Constitution

Section 250, which states," All qualified electors and no others, shallbe eligible to office, except as otherwise provided in this constitution.

"It was held that Section 250 applies to municipal and other statutoryoffices, and, where the constitution itself has not provided to thecontrary, Section 250 prescribes the only qualifications required forpublic offices. Hence the quoted part of Section 3430, Code of 1906,was invalid.

[144] Significantly, the Court contrasted this situation with that concerningcounty superintendents of education. It first discussed Wynn v. State,

supra, noting that the 1869 Constitution gave the Legislature no power


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to add qualifications, and said:" This decision was rendered at the

[145] October term, 1889, the year preceding the constitutional convention

of 1890, and must have been fresh and clear in the minds of themembers of that convention. The fact that it was in their minds isapparent from the fact that the qualification for county superintendentwas provided for in section 204 of that Constitution, and the

legislature was given power to prescribe the qualification,compensation, and duties therefor in express terms. "

[146] In Wilkins v. Large, 163 Miss. 279, 141 So. 585 (1932), the Court

expressly upheld the additional educational qualifications for countysuperintendents of education required by Code 1930, Sections 6560

and 6563. This was a quo warranto proceeding in the name of thedistrict attorney on the relation of Large against Wilkins to try theright to the office of superintendent of education of Wayne County.Petitioner Large alleged that he was duly elected in November 1931

to the office for a four year term beginning January, 1932; thatdefendant Wilkins was superintendent of education of the county withhis term expiring December 31, 1931; that on January 1, 1932,petitioner demanded of Wilkins possession of the office, which wasrefused. To this Wilkins pleaded: (1) Petitioner had not been a

resident citizen of the State for four years and of the county for twoyears immediately preceding his election; (2) Large was not eligiblebecause he did not hold certificate of eligibility as required by the act,

which required him to be a graduate of a high school, or have twoyears experience in teaching, or a graduate of a standard college, andrequired him to have passed an examination; and (3) Large had not

paid a poll tax for the two years preceding his election. PetitionerLarge demurred to these three pleas, his demurrer was sustained, and,defendant declining to plead further, final judgment was enteredremoving Wilkins from the office and installing Large.

[147] On appeal that decision was reversed and remanded. It was stated thatWilkins had the right to contest Large's

[148] claim to the office. After quoting the statute requiring a certificate ofeligibility, the Court held that the first and second pleas of defendantwere not demurrable, and said:" Section 204 of the Constitutionprovides, among other things, that the qualifications, compensation,and duties of the county superintendents of education shall beprescribed by law. In pursuance of that constitutional authority, the

Legislature enacted Sections 6560 and 6563 of the Code of 1930, andother provisions in the Code chapter on schools. Section 6560, amongother things, provides that the state board of examiners shall examine

all applicants or candidates for the office of county superintendent of


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education under regulations passed by the state board of education. "

[149] It was further held that the statute establishes" experience and

educational qualifications ", and, in a contest involving his eligibility,the courts may inquire into whether the elected county superintendentof education meets the statutory requirements." On the other hand, if

he lacks the requirements provided by the first clause of the statute, ordoes not possess the certificate as to his educational and professionalqualifications provided by the statute, he is ineligible to the office,and the courts will so adjudge. "So the first and second pleas set upgood defenses. (It was not necessary to pass upon the third.)

[150] In brief, Wilkins v. Large expressly upholds the constitutional validity

of the statutes requiring additional educational qualifications forelected county superintendents of education; and further holds that, ifhe lacks the statutory qualifications," he is ineligible to the office, and

the courts will so adjudge. "Aside from other reasons stated, this caseis directly in point and controlling here in favor of the validity andenforceability of Section 9.

[151] 4.

[152] At the Extraordinary Session of 1953 the Legislature completely

revised the State's educational laws and again raised the qualificationsfor county superintendents of education. Chapter 10, Section 8 (a)

requires that he must be a qualified elector, a citizen of the State forfour years and of the county for two years immediately preceeding hiselection. Appellee complies with these citizenship standards. Chapter10, Section 9, quoted above, then establishes the qualifications ofexperience and training which appellee agrees he does not meet.Moreover, the testimony is undisputed that he fails to meet such

requirements.

[153] A Class A Certificate for Administrators is defined in the rules andregulations of the State Board of Education covering the certification

of instructional personnel, and is referred to in Section 9 of Chapter10 and made a part of the stipulation in this case. These rules containthe rules and regulations of the State Board of Education covering theissuance of such certificates; and the Department of Education is theadministrative arm of the Board of Education, executing andadministering the rules, regulations and policies of the Board.

[154] Code 1942, Section 6281, provided:" The state board of education is

hereby authorized, empowered, and directed to set up, as soon as


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practicable after the passage of this act, rules and regulationsgoverning the issuance of all teachers' certificates, and to administer

said rules and regulations. Such rules and regulations shall not bechanged without giving a minimum notice of one year to all holders

of teaching certificates affected by this act. "This act was first passedin Miss. Laws 1938 Ex. Sess., Chapter 44. It was repealed by Miss.Laws 1953, Ex. Sess., Chapter 20, Sec. 28. But it was re-enacted andstrengthened in Chapter 20, Section 27 of the 1953 Laws:" The state

board of education is authorized,

[155] empowered, and directed to adopt and promulgate rules andregulations governing the issuance of all teachers' certificates and to

administer said rules and regulations. It is the purpose of this sectionto continue in existence the power and authority previously conferred

upon the state board of education by section 6281, code of 1942, aslast amended by chapter 279, laws of 1948, and the rules andregulations adopted by the state board under the said statutes shallremain in full force and effect until changed in the manner provided

by law. "

[156] It will be noted that Section 27 expressly provides that the existingrules of the state board shall remain in full force and effect, and

adopts them.

[157] These rules state:" This bulletin contains the rules and regulations ofcertification adopted by the state board of education. "The forewordto them notes that the statutes place in the hands of the State Board of

Education the duty of setting up and administering teacher educationand certification.

[158] Miss. Code 1942, Sections 6245-01 through 6245-14, as amended by

Chapter 297, Laws of 1946, set up the State Department of Education,provide its organization, and charge it with the execution of all lawsrelating to public schools, and" subject to the direction of the state

board of education as provided by law, the administration,management and control of the department is hereby vested in the

superintendent of public education, who shall be directly responsiblefor the rightful functioning thereof. "Section 6245-02.

[159] Hence the rules of the State Board of Education and Department ofEducation are recognized and authorized by the 1953 statute, and are

carried forward by it. They establish on page 30 the requirements fora Class A Certificate for Administrators, except insofar as Section 9raises the standards. This is the certificate referred to in Section 9.

Appellee's answer admits that he does not have and is not eligible to


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secure from the Department

[160] of Education a Class A Certificate for Administrators, and does not

have twelve semester hours or sixteen quarter hours of graduate creditin school administration," in administrative and supervisory fields ",as described in the rules. The stipulation filed in this case also

contains the same admissions that appellee does not have suchqualifications. Therefore the answer and stipulation admit thatappellee is not qualified under the statute.

[161] Section 9 requires" not less than five years school actual experience in

an administrative position in some public school . . . "Appellee servedas principal for three years. He contends that he met this requirement

by adding to his three years as principal fifty-two months duringwhich he taught On-the-Farm Veterans' school classes. Land testifiedthat he taught vocational agriculture to war veterans who were usually

over twenty-one years of age. He met the students one afternoon aweek in class at the school building, and visited the farms of thestudents one evening a week. On such visits he supervised theirfarming, care and maintenance of tools, record keeping, etc. Thestudents kept records, he checked them, and made monthly reports tothe State Department of Education. There were three of these classes,

with a teacher for each. Neither of the other two teachers were underLand's supervision or administrative control. He did not supervise anyschool employees or teachers. He taught the students, graded their

work and made monthly reports to the State Department of Education.He worked only with the students. There were supervisors over him

from the state department. Appellee holds a Grade A teacher'scertificate for secondary education. Appellee's teaching work in theveteran's school cannot be considered work in an administrativeposition. In that sense, every teacher serves in an administrativeposition, and the statutory requirement would be meaningless.

[162] The only persons he supervised were students. His job was to teachthem vocational agriculture.

[163] Moreover, the rules of the Board of Education make a distinctionbetween teaching certificates and Class A certificates forAdministrators. The latter authorizes one" to serve as superintendentof schools or assistant superintendent of schools ". The graduatecollege work must be" in administrative and supervisory fields ", and"in school administration. "The rules define the duties of a supervisor,

principal, assistant superintendent and superintendent. These officersadminister a school system," performing administrative duties ", asdistinguished from a teacher" to whom is entrusted the instruction of

pupils in a grade or subject. "So appellee failed to comply also with


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the statutory requirement that he have five years experience in anadministrative position in a public school.

[164] (Hn 9) In addition, appellee admitted that the Department ofEducation had refused to give him a certificate of eligibility to be acandidate for and to hold the office of county superintendent ofeducation. This is the equivalent of an administrative ruling by the

Department that he is not eligible to secure a Class A certificate forAdministrators under the 1953 Act. Such certificates of eligibilityhave been required by statute for at least fifty-one years, since theCode of 1906. Although appellee possesses a certificate under thenow repealed requirements of the Laws of 1938, Chapter 231, he does

not have and cannot secure such certificate of eligibility underSection 9. Under that statute, it is" unlawful for the election

commissioners to place the name of any person upon the ballot ascandidate for county superintendent of education who does not"possess such certificate of eligibility.

[165] (Hn 10) In brief it is undisputed under appellee's answer andstipulation, and his own testimony that he wholly fails to comply withthe act; he does not have a Class

[166] A Certificate for Administrators, or the required graduate work inschool administration, or five years actual experience in an

administrative position in a public school, or a certificate of eligibilityfrom the State Department of Education.

[167] 5.

[168] (Hn 11) Since appellee in fact does not comply with the requirements

of Section 9, Chapter 10, the next question is whether the statute isconstitutional. The express terms of Constitution Section 204 supportits enactment. It gives the Legislature power to fix" qualifications,

compensation and duties ". Section 204 then goes further andprovides that the Legislature" may otherwise provide for the

discharge of the duties of county superintendent ", thus authorizingperformance of the duties of that position by some other officer or insome other way. To make the grant of power to the Legislature evenmore specific, Section 204 also states that the Legislature may abolishthe office. So Section 204 vests in the Legislature, as to countysuperintendents of education, the full legislative power of the State

which is granted by Constitution Section 33.

[169] (Hn 12) Constitution Section 250 provides," All qualified electors and


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no others, shall be eligible to office, except as otherwise provided inthis Constitution. "(Emphasis added.) The contention of appellee, that

this provision applies also to county superintendents of education, iscontrary to the terms of Section 250, which renders it pertinent"

except as otherwise provided in this Constitution. "Section 204otherwise provides in the Constitution for the appointment, orelection, or abolition of the office, and vests in the Legislature power

to prescribe qualifications, compensation and the duties. So Section250 does not affect the Legislature's power in prescribingqualifications for county superintendents of education. Thisdistinction from other county offices

[170] was noted in McCool v. State. And in Wilkins v. Large additionaleducational qualifications and a certificate of eligibility from the State

Department of Education were held to be valid exercises of legislativepower.

[171] (Hn 13) Appellee contends that the statute is an unconstitutionaldelegation of legislative power to the State Board of Education and itsadministrative arm, the Department of Education. Legislative historyconcerning county superintendents of education reflects that for morethan fifty-one years the Legislature has delegated to the State Board

of Education the rule-making power to carry out statutoryrequirements for qualifications of this office. Wilkins v. Largespecifically upheld this grant of power.

[172] (Hn 14) Chapter 9, Section 10, provides in effect that the StateDepartment of Education, the administrative arm of the Board ofEducation, has the power to define in its rules and regulations a ClassA Certificate for Administrators. It also prescribes certainrequirements for such a certificate. Chapter 20, Section 27, Miss.Laws 1953, Ex. Sess., quoted above, is a legislative recognition and

adoption of the rules and regulations of the Board" until changed inthe manner provided by law. "The Board is given power topromulgate rules and regulations governing the issuance of all

teachers' certificates, and to administer them. Miss. Laws 1953, Ex.Sess., Chapter 20, Section 27.

[173] (Hn 15) It has been said," This Court is committed to a liberal rulegoverning the delagation of legislative functions. "Abbott v. State, 106Miss. 340, 63 So. 667 (1913). Although the Legislature cannotdelegate its power to make a law, it can delegate to an administrative

agency the power to determine some fact or state of things uponwhich the law makes or intends to make its application depend. (Hn16) The essential is that the statute delegating the power must

reasonably define the area in which the administrative agency


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operates and the limitations

[174] upon its powers. Section 9 and the other legislation dealing with

licensing of teachers and administrators comply with thisrequirement. The power exercised is similar to the rule-making powerof such agencies as the State Oil and Gas Board and the Workmen'sCompensation Commission. The legislative delegation of power to

administer the laws with reference to teacher-licensing and thecertification of instructional personnel is the basis of the board's rulesand regulations designed to carry out and administer these statutes.

[175] (Hn 17) It is argued that Section 9 is invalid because it contains anunreasonable discrimination in favor of incumbents of the office on

the effective date of the act. The clause complained of is:" providedthat no person who is serving as county superintendent of educationat the effective date of this act shall be ineligible for the office ofcounty superintendent of education because of lack of the

qualifications prescribed by this section. "It is said that the exemptionof incumbents of the office from being required to have theprescribed qualifications in future elections violates the equalprotection and due process clauses of the Federal and StateConstitutions and, being inseparable from the remainder of Section 9,

the entire section must fall.

[176] (Hn 18) A state may classify persons for the purpose of legislationand pass laws applicable only to persons or objects within a

designated class, provided such classification is reasonable and notclearly arbitrary. 12 Am. Jur., Constitutional Law, Section 476. (Hn19) The question of classification is primarily for the Legislature. Itdoes not become a judicial question except for the purpose ofdetermining whether it is clearly unreasonable. Great liberality hasalways been indulged in the matter of classification. It must be looked

at from the standpoint of the Legislature enacting it. (Hn 20) Hencethere is a presumption in favor of legislative classification, of thereasonableness and fairness of legislative action,

[177] and of legitimate grounds of distinction. So if any state of factsreasonably can be conceived which would sustain it, the existence ofthat state of facts at the time the law was enacted must be assumed.(Hn 21) Although the presumption in favor of a classification is notconclusive and is rebuttable, courts should not declare it invalidunless it is of such a character as to preclude the assumption that it

rests upon any rational basis within the knowledge and experience ofthe legislators. Ibid., Sections 519-521.


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[178] Conditions facing the Legislature at the time of the enactment in 1953of the statutes reorganizing the school system of the state apparently

indicated to it that the qualifications for county superintendents ofeducation should be raised. The Legislature had been doing this at

frequent intervals over a period of fifty-one years or more. Section 9increases these qualifications for future aspirants to the office.Apparently the Legislature believed that on the basis of experience,

information and knowledge secured while in office, those who wereincumbents at the effective date of the act, having acquired suchexperience, information and knowledge, would be as qualified asthose who might be elected in the future without previous experiencebut who complied with the increased qualifications for the office.Moreover, it may have thought that, as a matter of fairness to

incumbents of the office, they should not be precluded from seekingthat office again. At any rate, whether these ideas were in the minds

of the legislators or not, they certainly furnish a reasonable and justbasis for the distinction made in Section 9 between incumbents andaspirants to the office who are not incumbents. So this classification

meets the requirements of the law as to reasonableness. Board ofTrustees of University of Mississippi v. Waugh, 105 Miss. 623, 62So. 827 (1913), affirmed in 237 U.S. 589, 35 S. Ct. 720, 59 L.Ed.1131; Clark v. State, 169 Miss. 369, 152 So. 820 (1934); Miss. StateTax Commission v.

[179] Flora Drug Company, 167 Miss. 1, 148 So. 373 (1933); State, ex rel.,Jordan, District Attorney v. Gilmer Grocery Company, 156 Miss. 99,

125 So. 710 (1930); Stone, Chairman of State Tax Commission v.General Electric Contracts Corporation, 193 Miss. 317, 7 So. 2d 811

(1942); Standard Oil Company, Inc. in Kentucky v. Stone, ChairmanState Tax Commission, 191 Miss. 897, 2 So. 2d 155 (1941).

[180] 6.

[181] Since the act is constitutional, and it is undisputed that Land does notmeet the qualifications required by it, the court's constitutional duty is

to enforce the law as written and grant the relief prayed for by theState.

[182] (Hn 22) Appellee argues that since the court has a discretionary powerin issuing a writ of quo warranto, that discretion should be exercisedhere by refusing issuance of the writ; and that the State should bebarred and estopped from bringing this action, because of its delay in

enforcing the act, the Attorney General's opinion with reference toappellee's teaching in Veterans' On-the-Farm classes, and because theChancery Court of Kemper County on May 19, 1955, held that the act

was unconstitutional and ordered the County Democratic Executive


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Committee to place his name upon the primary election ballot.

[183] But the State did not delay bringing this action in an unreasonable

time. The suit was filed on May 12, 1956, slightly less than four andone-half months after Land took office. The Attorney General'sopinion was directed solely to whether teaching in Veterans' On-the-Farm classes constituted experience in an administrative position in

some public school. Even assuming the correctness of that opinion, itis undisputed that appellee does not meet other importantrequirements of Section 9 and of the rules and regulations of the StateDepartment of Education. Moreover, this opinion is persuasive butnot

[184] determinative of whether in fact appellee complies with thisrequirement, and we hold that he does not. The decree of theChancery Court of Kemper County of May 19, 1955, ordering theCounty Democratic Executive Committee to place appellee's name

upon the primary election ballot, is not binding upon the State or theAttorney General, since they were not parties to that suit.

[185] (Hn 23) The writ of quo warranto is not a writ of right, but issues in

the sound discretion of the court. 44 Am. Jur., Quo Warranto, Section15. The judgment of the circuit court was not placed upon adiscretionary exercise of power in denial of the writ. It was based

upon the erroneous premise that Section 9, Chapter 10, wasunconstitutional. The rule applicable to this case is that stated in State

ex rel., Fatzer, Attorney General v. Kansas City, 169 Kansas 702, 222P.2d 714, 726-727 (1950):" It is true the court has a measure ofdiscretion in quo warranto proceedings. . . . This is a judicialdiscretion. It is not to be used without reason and does not authorize acourt to ignore a valid applicable statute which has been promptlyinvoked. "

[186] (Hn 24) And so in the instant case, the judicial discretion which the

court exercises in quo warranto proceedings must be used reasonablyand in the light of the facts of the case. It is undisputed that appellee

does not comply with substantial, and practically all of therequirements of the statute. And the act is valid and constitutional. Soour duty is to enforce the act and to issue the writ of quo warranto,finding that appellee has been exercising the functions of the officewithout authority and removing him therefrom, as provided by Codeof 1942, Section 1129.

[187] To support his argument that the court should exercise a discretionary

power and refuse the writ, appellee relies upon State, ex rel., Jordan,


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District Attorney v. Mayor and Commissioners of the City ofGreenwood, 157 Miss. 836, 127 So. 704, 129 So. 682 (1930).

However, that case

[188] is clearly distinguishable from the instant one. The State brought thesuit six years after the city, through its aldermen, had begun

exercising jurisdiction over some adjacent territory under an invalidordinance extending the city limits. The citizens of the adjoiningterritory had for six years been voting and paying taxes as citizens ofthe city, and the State had acquiesced in those actions. Ouster of thecity officers would simply have been a punitive measure on atechnical issue which would have resulted in considerable detriment

to the city and to those living in the adjacent area. Moreover, a laterstatute, which had the effect of abolishing the Town of North

Greenwood, rendered" the whole object of this action . . . vain anduseless. "Most of the other cases relied upon by appellee deal withsuits against private and municipal corporations.

[189] In Kennington-Saenger Theatres, Inc. v. State, ex rel., DistrictAttorney, 196 Miss. 841, 873, 18 So. 2d 483, 153 A.L.R. 883 (1944),which was a suit for the forfeiture of a corporation's franchise, it wasobserved that where statutory grounds for forfeiture exist in a quo

warranto action the trial court" is left no discretion as to whether ornot such penalty shall be enforced . . . "Moreover, appellee does notclaim that he is now qualified under the statute. Assuming arguendo

that such a circumstance, if it existed, might affect exercise of thecourt's discretion, it is not possible that it exists in this case, since,

among other things, he could not now have five years of experiencein an administrative position in a public school. Nor does he claimthat he now has a Class A Certificate for Administrators, or acertificate of eligibility from the State Department of Education, orthe required graduate work in school administration.

[190] There is no area in this case within which in a sound discretion thewrit could be refused by this Court. Failure to enforce the act, as

written, in a clear case such as this, where the defendant wholly failsto comply with

[191] the statute, would in effect repeal the act and remove it from thebooks. That is not a judicial but a legislative function. Theestablishment and the administration of the school laws of the Statetouch the lives of every child, parent and citizen. The importance in a

sound educational system of an adequate licensing system forteachers and school administrators is manifest. The determination ofwhat those requirements shall be is for the Legislature. Its intentions,

as set forth in Section 9 of Chapter 10 and in the rules and regulations


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of the State Board of Education, apply to the defendant as well as toevery other citizen. The final judgment of this Court and the writ of

quo warranto will be issued and directed to defendant as prayed forby the State in its petition, adjudicating that defendant has been

exercising the functions of the office without authority and removinghim therefrom, as provided by Code of 1942, Section 1129.

[192] Reversed and judgment rendered for appellant.

[193] Hall, Lee, Kyle, Holmes, Arrington and Gillespie, JJ., concur.

[194] ROBERDS, DISSENTING IN PART:

[195] I concur in the holding that the legislature had the power to prescribe,in the manner here adopted, the requirements for eligibility of

candidates for the office of county superintendent of education for theyear 1955. However, the issuance or denial of the writ of quowarranto to eject one from office is addressed to the sound discretionof the court and, in my opinion, the writ under consideration shouldbe denied. I think that the proceedings, under the circumstances in

this case, are unjust to Land and serve no good purpose from thestandpoint of the public.

[196] The rule seems now universal that the issuance or refusal of the writ

is addressed to the sound discretion of

[197] the court. In 44 Am. Jur., page 96, Section 15, the rule is stated in thislanguage:" Although originally the writ of quo warranto was a writ ofright, it is in modern times, and generally speaking, not of that

character, but issues in the sound discretion of the court, even wherethe state is seeking the writ, and this discretion in regard to theproceeding is in some states recognized by statute. This is rightly so,

for the writ, or a judgment of ouster thereunder, is one which mayhave drastic consequences affecting the public welfare. In exercising

such discretion, the court may and should consider all thecircumstances in the case, including lapse of time and circumstanceswhich would establish laches, acquiescence, or estoppel, and whetherthe public interest will be served, for the court may refuse the writ orjudgment of ouster upon considerations of public policy, interest, orconvenience. Where, in quo warranto to test the right of a city to

exercise jurisdiction over certain territory, a judgment of ouster wouldcause confusion or disaster in the administration of the affairs of thecity, and it does not appear that its refusal would be detrimental to the

public interests or prejudicial to the constitutional rights of the


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citizens, duly claimed and asserted, the court has the power to refusejudgment of ouster. "

[198] In State, ex. rel., Jordan v. Mayor and Commissioners of City ofGreenwood, 157 Miss. 836, 127 So. 704, on the suggestion of errorreported in 129 So. 682, this Court said:" Although the opinion

heretofore delivered in this case did not in express words so say, itcarries the implication, as fully as if said, that we intended to holdand did hold that we would exercise the discretion to consider all thecircumstances of a case, in quo warranto, and if on a full view ofthese circumstances it appeared clear that the public welfare not onlywould not be promoted, but the reverse would be the result, and that

by reason of the lapse of time harm rather than good would

[199] result to the public interest, we would decline to interfere in aproceeding in quo warranto designed to `disturb the peace and quiet'

of any public or quasi public corporation, and that the doctrine oflaches would be applied in such cases, although not ordinarilyapplicable in proceedings by the state. In other words, in such aproceeding we would not consent that the principle that no lapse oftime runs against the state, a doctrine established to promote theinterests of the state and to save it from harm, shall be reversed in its

purpose and be so used as to harm the state and the general welfare.The language has often been used in this court that that which isdesigned as a shield shall not be permitted to be turned into a sword.

"

[200] These are the facts and events which brought about the presentsituation: Land was a school man. The general election was comingup in 1955. In the latter part of 1954 many of the voters solicitedLand to make the race for County Superintendent of Education ofKemper County. Land held a certificate of eligibility for that office

dated March 3, 1951. Some changes had been made in the law. Therewas some question whether Land was then eligible for the officeunder the strict requirements of the State Department of Education as

the Department might interpret them. Land sought the advice of hisfriend I. M. Latimer, who was Superintendent of Education of

Neshoba County. They decided to write the Attorney General of theState of Mississippi. Mr. Latimer did that under date of December 9,1954. The Attorney General replied on January 4, 1955. Latimer andLand interpreted the reply, whether rightfully or wrongfully, to meanthat Land was eligible as a candidate.

[201] Land then requested a Class A Certificate for Administrators beissued to him by the State Department of Education, giving that

department his scholastic and educational qualifications. He was


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advised by that department

[202] that it did not consider him entitled to a Class A Certificate. The

grounds for refusing this certificate are somewhat confusing becausethe agreed statement of facts in this case recites that" the StateDepartment of Education of the State of Mississippi has no rules orregulations which define a Class A certificate for administrators, and

has no rules or regulations covering certification of instrumentalpersonnel. "It may be pertinent to here state that Land had had threeyears actual experience in the administrative position in the publicschools of Mississippi as a high school principal and five yearsexperience as a teacher in the On-the-Farm Veterans' School in

Kemper County under the direction of the State Board of Education.He was a graduate of Mississippi State College, had a BA degree

from that institution, had eight semester hours of credit in the Schoolof Education at Mississippi Southern College and, as stated, had acertificate of eligibility dated March 3, 1951.

[203] Land then, in order to be sure of his eligibility, instituted aproceeding in the Chancery Court of Kemper County against themembers of the Kemper County Democratic Executive Committee todetermine whether his name should be placed upon the ballot as a

candidate for County Superintendent of Education. This matter washeard at the county courthouse on May 19, 1955, before a largegathering of the citizens of Kemper County. On that date the

chancellor held that Section 9, Chapter 10, Acts of Ex. Sess. of 1953,purporting to define the eligibility of those occupying the office of

county superintendent of education, to be unconstitutional, andfurther held that Land had the qualifications for that office andordered the Executive Comm

Documents

state, ex rel attorney general v land, 231 miss 529 (miss 1957)