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 <http://www.versuslaw.com> 231 Miss. 529

[4] JUNE 10, 1957

[5] STATE, ex rel. ATTORNEY GENERAL

v.
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 State
determines 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 and
under the statutes was to serve as an appropriate means for
determining 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 public

office - 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 the
defendant to prove his right or title to the office, and he must show
good legal title and not merely a colorable one, and must show a
right de jure and not merely de facto.
[12] 4. Quo warranto - evidence and proof - where brought on relation of
private litigant - burden of proof.

[13] Where a suit in quo warranto is brought on relation of a private

litigant, 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 of

Education 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 of

Education on the ground that he unlawfully held public office and for
the purpose of trying his right thereto, burden of proof was upon
Superintendent 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 of
trying right thereto - advisory opinion of Attorney General as not
working estoppel against State.

[17] In quo warranto to try right to office of County Superintendent of

Education, advisory opinion of the Attorney General to County
Superintendent of Education whether service as an on-the-farm
veterans' teacher constituted experience in an administrative position
in public schools as required by the Act, which stated that such
presented a factual as well as a legal question but gave the opinion
that such teaching would constitute administrative experience, did not
estop the State where the defendant did not have the other necessary
qualifications Sec 9, Chap 10, Laws 1953 (Ex. Sess.).

[18] 7. Schools and school districts - veterans' on-the-farm teaching - as

not constituting "experience in an administrative position" within
statute respecting qualifications of County Superintendent of
Education

[19] Veterans' on-the-farm teaching does not constitute "experience in an

administrative position" in public schools within the statute respecting
qualifications of a County Superintendent of Education Sec. 9, Chap.
10, Laws 1953 (Ex. Sess.).
[20] 8. Decree - in quo warranto to try title to office of County
Superintendent of Education - adverse decree in prior suit by
Superintendent against Democratic Executive Committee - as not
binding on State and Attorney General who were not parties to former
action.

[21] In suit in quo warranto to try title to office of County Superintendent

of Education, where Superintendent had brought suit against members
of the Democratic Executive Committee and a decree pro confesso
was taken against 14 of them, only one member having answered, and
Chancery Court ordered Committee to place Superintendent's name
on the primary election ballot, holding the 1953 statute
unconstitutional and that he had qualified under the 1944 Act, this
decree against the Democratic Executive Committee was not binding
upon 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 candidate

for office of County Superintendent of Education certificate of
eligibility to be a candidate for and to hold such office equivalent of
an 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 County

Superintendent of Education a certificate of eligibility to be a
candidate for and to hold the office, such ruling was equivalent of an
administrative ruling by the department that the Superintendent was
not eligible to secure a Class A Certificate for Administrators under
the 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 elected
County Superintendent of Education failed to comply with Act
respecting qualifications of such office.

[26] Record established that duly elected County Superintendent of

Education failed to comply with the Act respecting qualifications of
the Superintendent, in that he did not have a Class A Certificate for
Administrators or the required graduate work in school administration
 or five years actual experience in an administrative position in a
public 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 in

Legislature 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 fix

qualifications, compensation and duties of the Superintendent of
Education and stating that the Legislature may also abolish the office
vests in the Legislature, as to County Superintendents of Education,
the full legislative power of the State granted by Section 33 of the
Constitution. Secs. 33, 204, 250, Const. 1890; Sec. 9, Ch. 10, Laws
1953 (Ex. Sess.).

[29] 12. Constitutional law - Section 250 of Constitution as not affecting

Legislature's power in prescribing qualifications of County
Superintendents of Education.

[30] The constitutional provision that all qualified electors shall be eligible
to office except as otherwise provided in the Constitution is not
limited in application to County Superintendents of Education, and
does 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 County

Superintendents of Education not unconstitutional as an improper
delegation of legislative power to State Board of Education and
Department of Education.

[32] The statute establishing qualifications for the County Superintendent

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

[33] 14. Education - statutes - power of Board of Education to promulgate

and administer rules governing issuance of all teachers' certificates.
[34] Under the statute, the Board of Education is given power to
promulgate rules governing the issuance of all teachers' certificates
and to administer them. Sec. 9, Chap. 10, Sec. 27, Chap. 20, Laws
1953 (Ex. Sess.).

[35] 15. Constitutional law - Legislature cannot delegate its power to make
a law, but it can delegate to an administrative agency power to
determine state of things upon which the law makes its application
depend.

[36] Although the Legislature cannot delegate its power to make a law, it
can delegate to an administrative agency the power to determine state
of things upon which the law makes or intends to make its
application depend.

[37] 16. Constitutional law - statute delegating legislative power must

reasonably define area in which administrative agency operates and
limitations upon its powers.

[38] A statute delegating legislative power must reasonably define the area
in which the administrative agency operates and the limitation upon
its powers.

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

Superintendents of Education not invalid as containing an
unreasonable discrimination in favor of incumbents of the office on
effective date of Act.

[40] The statute establishing qualifications for County Superintendents of

Education is not invalid as containing an unreasonable discrimination
in favor of incumbents of the office on the effective date of the Act
on the ground that such exemption violates equal protection and due
process clauses of the Federal and State Constitutions, and being
inseparable 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 and
pass 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
 only to persons or objects within a designated class, provided such
classification is reasonable.

[43] 19. Constitutional law - question of classification of persons primarily

for Legislature and does not become a judicial question except to
determine whether it is unreasonable.

[44] Question of classification of persons is primarily for the Legislature

and does not become a judicial question except to determine whether
it 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 the

reasonableness and fairness of legislative action and of the legitimate
grounds of distinction.

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

classification - rebuttable - courts not to declare classification invalid
- unless.

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

and is rebuttable, courts should not declare it invalid unless it is of
such character as to preclude the assumption that it rests upon any
rational 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 from
enforcing act respecting qualifications of Superintendent on ground of
delay in bringing action within a reasonable time.

[50] In quo warranto to try right to office of County Superintendent of

Education, State was not barred from enforcing the Act respecting
qualifications of County Superintendent on ground of delay in not
bringing 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 of
court.
[52] The writ of quo warranto is not a writ of right, but issues in the sound
discretion of the court.

[53] 24. Quo warranto - in proceeding to try right to office of County

Superintendent of Education - under record in case, it was duty of
Supreme 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 of

Education, where judgment of the Circuit Court for the
Superintendent was not placed upon a discretionary exercise of power
in denial of the writ, but on an erroneous premise that the statute was
unconstitutional and it was undisputed that the superintendent did not
comply with the substantial requirements of the Statute and the Act
was valid and constitutional, Supreme Court had duty to enforce the
statute 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 of
Superintendent of Public Education in Kemper County. From an
adverse judgment, the State on relation of the Attorney General
appealed. Reversed and judgment rendered for the State.

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

[60] I. The Legislature has all political power not specifically vested in the
Federal Government by the United States Constitution nor denied to
the Legislature by the State Constitution. Board of Trustees of
University 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
 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, 176
Miss. 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. Pearl

River Co., 213 Miss. 752, 57 So. 2d 718; California Co. v. Oil & Gas
Board, 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, 346
U.S. 824, 98 L.Ed. 349, 74 S. Ct. 41; Commodore Corp. v. Davis, 178
Miss. 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., 112
Miss. 227, 72 So. 925; Kennington-Saenger Theatres v. State, 196
Miss. 841, 18 So. 2d 483, 153 A.L.R. 383; Lawrence v. Mississippi
State 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, 119
So. 177; Miller v. State, supra; Natchez & Southern R. Co. v.
Crawford, 99 Miss. 697, 55 So. 596; Quinn v. City of McComb, 212
Miss. 730, 55 So. 2d 479; Russell Investment Corp. v. Russell, 182
Miss. 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; Teche
Lines 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 the
constitutionality of statutes. Hart v. State supra; Miller v. State, supra;
Sheffield v. Reece, supra, State v. Wheatley, 113 Miss. 555, 74 So.
427.
[66] V. Where there is a reasonable doubt as to the constitutionality of a
statute, 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. City
of 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 elective
County 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, 181
So. 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, 7
So. 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

 unconstitutionally discriminatory. Adams v. Standard Oil Co., 97
Miss. 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, 16
A.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 of
Clarksdale, 154 Miss. 155, 122 So. 195; McCool v. State ex rel.
Howie, Dist. Atty., supra; Shaw v. City Council of Marshalltown, 131
Iowa 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, 57
So. 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 being
discretionary. 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 of
Greenwood, 159 So. 657; Lee v. Duncan, 220 Miss. 234, 70 So. 2d
615; Reedy v. Johnson's Estate, 200 Miss. 205, 26 So. 2d 685; State
ex rel. Jordan, Dist. Atty. v. Mayor and Commissioners of City of
Greenwood, 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; 44
Am. 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, 163
Miss. 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 by
Chapter 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. Panola
County, 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
 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, 180
Miss. 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 Oil
Co., 97 Miss. 879, 53 So. 692; American Express Co. v. Beer, 107
Miss. 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 of
Brookhaven, 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 Tax
Comm. 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, 62
So. 827.

[81] V. Answer to Point IV of appellee's brief. Capitol Stages, Inc. v. State

ex rel. Hewitt, Dist. Atty., 157 Miss. 576, 128 So. 759; City of Winter
Haven v. City of Florida ex rel. Landis, Atty. Gen., 125 Fla. 392, 170
So. 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;
 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 of
quo warranto against appellee, J. Chandler Land, who is serving as
the Superintendent of Public Education in Kemper County, on the
ground that he unlawfully holds and exercises that public office, and
for the purpose of trying his right to that office.

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

[86] The circuit court recognized that Land was not qualified under the
statute, 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 legislation

enacted by the 1953 Extraordinary Session of the Legislature which
was directed toward re-organizing

[89] the public school system of the State. It provides: "No person shall be
eligible to the office of county superintendent of education unless
such person shall hold a certificate to be issued by the state
department of education certifying that he holds a Bachelor's Degree
and also that he shall hold, or be eligible to secure, a Class A
certificate for administrators as defined in the rules and regulations of
the State Department of Education covering the certification of
instructional personnel, one-half of the work in which shall have been
in school administration, awarded by an institution approved by the
state department of education, and that he has not less than five (5)
 years' actual experience in an administrative position in some public
school of the State of Mississippi, or of a state extending reciprocal
licensing of teachers to the State of Mississippi; provided that no
person who is serving as county superintendent of education at the
effective date of this act shall be ineligible for the office of county
superintendent of education because of lack of the qualifications
prescribed by this section. It shall be unlawful for the election
commissioners of any county to place the name of any person upon
the ballot as a candidate for county superintendent of education who
does not qualify under the terms of this act; and, in counties wherein
such office is appointive, it shall be unlawful for the county board of
education to appoint a person to such office who does not qualify
under the terms of this act."

[90] It will be noted that this act expressly states that no one shall be
eligible 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 a
candidate for county superintendent of education who does not
qualify 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 of
a 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 into
existence at some unascertained period early in the history of the
common law. In Mississippi it is defined in a chapter in the
Mississippi Code of 1942, Sections 1120-1145.

[93] (Hn 2) One of the functions of the writ at common law and under the
statutes is to serve as an appropriate and adequate means for
determination 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 offending
in 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
 office in any corporation, city, town, or village, and to try the right to
any such office. "

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

[97] And Section 1129 describes the judgment to be rendered:" If

judgment be against the defendant, finding that he has been
exercising the functions of an office without authority, he shall be
removed from office and debarred therefrom, and shall pay costs. The
court shall order the defendant to deliver over all records, books, and
papers in his custody or under his control, belonging to the office, and
may make and enforce all orders proper to carry its judgment into
effect. "

[98] (Hn 3) It is well-established that, in a quo warranto proceeding to try

the 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 incumbent
upon 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 is
brought on the relation of a private litigant, the petitioner has the
burden of establishing his right to the office, because such suit is not
a public action, but in the nature of a private suit. State, ex rel., Parks
v. Tucei, 175 Miss. 218, 223, 166 So. 370 (1936); Hood v. Cneso, 179
Miss. 234, 174 So. 552 (1937). (Hn 5) Hence the burden of proof is
upon defendant Land in this action brought by the State, through its
Attorney General, to contest his legal right to the office.

[100] 2.

[101] The State filed this petition for quo warranto on May 12, 1956, about
four and one-half months after Land took office as Superintendent of
Education for Kemper County. Briefly stated, the petition charged
that Land procured his name to be placed on the primary and general
election ballots for County Superintendent of Education contrary to
the provisions of Section 9, Chapter 10; that he received the highest
number of votes in each election, was declared elected, issued a
commission, and is now unlawfully occupying the office and
 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 Class
A certificate for Administrators as defined in the rules and regulations
of the State Board and Department of Education. Land's answer
admitted that he did not have and was unable to secure

[103] such a certificate. The petition averred that Land does not have twelve
semester hours or sixteen quarter hours of graduate credit in school
administration, 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 actual
experience in an administrative position in a public school, which the
answer denied. It was averred that defendant does not have a
certificate of eligibility for the office of County Superintendent,
which is required by the statute as a condition precedent to the
placing of his name on the general election ballot. The answer in
effect admits that defendant does not hold a certificate of eligibility
under the 1953 statute, but it pleads affirmatively that Land holds
such a certificate from the State Department of Education dated
March 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 1953
Laws, Ex. Sess., Chapter 10, Section 11.

[105] The petition charged and defendant admitted that he had never
previously served and was not serving on December 28, 1953, as
Superintendent of Education of Kemper County, so defendant does
not come within the exception in Section 9 of Chapter 10. Hence the
petition alleged that defendant is not legally qualified to hold the
office; that he is now usurping it and its functions and powers; and
prayed 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, defendant

pleaded that he had received a majority of the votes in the primary
and general elections; he denied that it was unlawful for his name to
be upon the ballots; admitted that he is now holding the office, and
averred 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
 invalid delegation of legislative power, and contains an unreasonable
classification 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 a
decree of the Chancery Court of Kemper County of May 19, 1955, in
which, in a suit against the members of the Kemper County
Democratic Executive Committee, that court ordered the Committee
to place Land's name upon the primary election ballot, holding that
the 1953 Act was unconstitutional. The answer concluded that for
these reasons the State is estopped from contesting Land's right to the
office.

[108] At the hearing in the Circuit Court of Kemper County, there was
introduced in evidence a stipulation of facts executed by attorneys for
both sides. It admits that defendant does not hold and is" not eligible
to secure a Class A Certificate for Administrators as defined in the
rules and regulations of the Board of Education of the State of
Mississippi, covering the certification of institutional personnel "; that
Bulletin 130, entitled" `Rules and regulations for the certification of
instructional personnel' contains the rules and regulations of the State
Board of Education covering the issuance of the Class A certificates
for administrators "; and that" the Department of Education of the
State of Mississippi is the administrative arm of the Board of
Education of the State . . . and executes and implements and
administers the rules, regulations and policies of the Board of
Education. . . "

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

[110] defendant has three years actual experience in an administrative

position in the public schools as a high school principal; and he has
had about five years experience as a teacher in the On-the-Farm
Veterans' school conducted in Kemper County. It admits that
defendant has never secured a certificate of eligibility as a candidate
for the office of County Superintendent of Education under the 1953
laws. The State Department of Education advised him that he was not
eligible 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 at

this 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
 whether service as an On-the-Farm Veterans' teacher constitutes
experience in an administrative position in public schools. The
Attorney General's letter noted that this" presents a factual as well as
a legal question ", but gave the opinion that such teaching would
constitute administrative experience. The inquiry of Latimer and the
opinion assumed that the person in question had" all the other
necessary qualifications. "But appellee does not have the other
necessary qualifications, aside from holding a Bachelor's Degree. (Hn
7) Moreover, we do not think that Veterans' On-the-Farm teaching
constitutes 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 Kemper
County 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 to
place 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 decree
of the

[113] chancery court against the Kemper County Democratic Executive

Committee is of course not binding upon the State or the Attorney
General in the present suit, since they were not parties to the former
action.

[114] The circuit court observed that there is no real issue concerning
appellee's failure to comply with the statute. The only question is
whether Section 9 violates Section 204 of the Constitution. The trial
court held that it does, concluding the Legislature does not have the
authority to prescribe any qualifications for an elected county
superintendent of education other than that he should be a qualified
elector, as prescribed by Constitution Section 250. So the judgment of
the circuit court held that the statute is unconstitutional, Land was
qualified to occupy and hold the office, dismissed the State's petition,
and denied the requested writ of quo warranto. This appeal is from
that judgment.

[115] 3.

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

understanding of the constitutional and legislative history of the
office of county superintendent of education in Mississippi.
[117] Section 4 of Article 8 of the Mississippi Constitution 1869, which was
in effect before the present Constitution of 1890, provided:" There
shall be a superintendent of public education in each county, who
shall 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 other
county officers are. "It is noted that this provision did not state that
the 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 public
education as county superintendent of public education for Holmes
County, and was confirmed by the Senate in January 1875. Burnham
answered that he had been appointed to such office in November
1872, and claimed that he had the right to hold over until his
successor was duly appointed. It was admitted that Sumner was never
examined by the State Board of Examiners, and did not procure a
certificate from the State Board of Education as required by the Act
of 1873. It was held that the statutory requirement that Sumner must
hold 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 held
that, 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 decided
under the 1869 Constitution, a short time before the Constitutional
Convention of 1890. An Act of 1888 provided that in Yalobusha and
other named counties the county superintendent of education should
be elected. Section 2 stated that no person shall be eligible who does
not 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 respondent
had a certificate dated 1886, which the court held was not the
required certificate. The trial court held for the State, but on appeal
the case was reversed. Construing the 1869 Constitution, including a
provision that all qualified electors are eligible for public office, the
Court held that the act requiring a first grade certificate was invalid.
The Legislature was not authorized by the Constitution to increase the
qualifications for
[121] county superintendent of education. The Court impliedly but not
expressly overruled Burnham v. Sumner.

[122] In less than a year after Wynn v. State, the new Constitution of 1890
became effective. Section 204, with which we are here concerned,
provides:" There shall be a superintendent of public education in each
county, who shall be appointed by the board of education by and with
the advice and consent of the senate, whose term of office shall be
four years, and whose qualifications, compensation, and duties, shall
be prescribed by laws: Provided, That the legislature shall have power
to make the office of county school superintendent of the several
counties elective, or may otherwise provide for the discharge of the
duties of county superintendent, or abolish said office. "(Emphasis
added.) As contrasted with the clause in the 1869 Constitution, it is
noted that Section 204 of the 1890 Constitution expressly provides
that the Legislature may prescribe the qualifications of the county
superintendent 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), pages

373-374, states that the design of the Convention was to reserve
control of the educational interests of the State in the Legislature; that
the clause authorizing the Legislature to fix qualifications" was
designed, among other things, to permit the Legislature to require
certain educational qualifications "; and that under the 1869
Constitution the Court had held that the Legislature could not" require
additional qualifications to that of being a qualified voter. "

[124] Pursuant to Section 204 of the 1890 Constitution, the Legislature

promptly began establishing educational qualifications for county
superintendents of education. It first made them applicable to
superintendents who were appointive only. Code 1892, Sections
4257-4264. A committee of three examiners was appointed by the
State 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 under

Constitution Section 204, began requiring additional educational
qualifications for elected county superintendents of education. And
beginning in 1906 all county superintendents of education were
elected. 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
 resident citizen of the state for four years and of the county for two
years immediately preceding his election, and shall have passed the
examination provided for in the section following the next one and
have received a certificate accordingly. "

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

candidates for the office of county superintendent shall pass an
examination on the branches required for first grade license, and in
addition on the art of teaching. The examination shall be held in the
county of the applicant by the state board of examiners, under
regulations passed by the state board of education. Candidates or
applicants who prefer to take the examination at Jackson can do so by
giving the superintendent of education ten days' notice by registered
letter. "

[128] Since 1906 the Legislature has continuously exercised its power under
Constitution Section 204 to require county superintendents of
education to pass certain examinations, to meet stated minimum
educational requirements, and to have a certificate of eligibility from
the State Board of Education before they were eligible to run for the
office.

[129] By Chapter 283, Miss. Laws 1924, the State enacted new legislation
dealing with county superintendents of education. It was embodied in
Miss. Code 1930, Section 6559-6580. Section 6559 created a state
board of examiners

[130] appointed by the State Superintendent of Education. Their duties were

to prepare examinations for teachers, to grade applications, renew
licenses and" to examine all applicants or candidates for the office of
county 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 resident
citizen of the state for four years and of the county for two years
immediately preceding his election. He shall also hold a certificate
attesting that he possesses the following educational and professional
qualifications:

[132] "1. Be a graduate of a high school requiring at least fifteen units for
graduation, or the equivalent thereof.
[133] " 2. He must have had at least two years of successful experience as a
teacher in the public schools of the state, or be a graduate of a
standard college.

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

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

[136] Code 1930, Section 6564, further stated:" All applicants or candidates
for the office of county superintendent of education except those who
hold professional life licenses, shall pass the examination on the
branches required for first grade license, which license shall be
subject to renewal under rules and regulations of the state board of
education. The examination shall be held in the county of the
applicant on questions prepared by the state board of examiners; the
papers shall be graded and the results of such examination shall be
made known speedily to said applicant by the state board of
examiners. Candidates or applicants who decide to take the
examination at the state capitol may do so, under regulations of the
state board of examiners. "

[137] In 1938 the Legislature again raised the standards for elected county
superintendents. Laws 1938, Chapter 231, provided that" before
anyone shall be eligible to hold the office of county superintendent of
education "he must be a qualified elector, a citizen of the State for
four years and of the county for two years. It further stated:" He shall
also 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, and
thereafter, he must have had not less than two years of college
training in an institution approved by the state board of examiners and
in addition thereto must have had not less than two scholastic years of
experience as county superintendent, school superintendent,
supervisor or teacher in the public schools of the state; or he shall
have 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 of

education must hold a valid certificate from the state board of
examiners 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
 certified. For each such certificate issued by the state board of
examiners 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 State
Department 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 state
board of education rather than the state board of examiners, and the
candidate 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 candidates
for county superintendent of education, two significant cases, which
were 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, 115
So. 121 (1928), is important because the court contrasted the
constitutional provisions concerning qualifications for candidates for
municipal aldermen and county officers with those of county
superintendents of education. The district attorney filed a petition for
quo warranto against three aldermen of the City of Canton. Code
1906, Section 3430, created certain limitations on the budgets of
municipalities, and stated:" In case of an increase of indebtedness not
so authorized, the mayor and aldermen shall not succeed themselves
or each other. "The three respondents were each elected to another
term of office. This suit was brought to remove them because in their
prior terms they had violated the quoted statute. The question was
whether the Legislature could impose upon candidates for aldermen a
disqualification in addition to that provided for in Constitution
Section 250, which states," All qualified electors and no others, shall
be eligible to office, except as otherwise provided in this constitution.
"It was held that Section 250 applies to municipal and other statutory
offices, and, where the constitution itself has not provided to the
contrary, Section 250 prescribes the only qualifications required for
public offices. Hence the quoted part of Section 3430, Code of 1906,
was invalid.

[144] Significantly, the Court contrasted this situation with that concerning
county superintendents of education. It first discussed Wynn v. State,
supra, noting that the 1869 Constitution gave the Legislature no power
 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 the
members of that convention. The fact that it was in their minds is
apparent from the fact that the qualification for county superintendent
was 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 county
superintendents of education required by Code 1930, Sections 6560
and 6563. This was a quo warranto proceeding in the name of the
district attorney on the relation of Large against Wilkins to try the
right 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; that
defendant Wilkins was superintendent of education of the county with
his term expiring December 31, 1931; that on January 1, 1932,
petitioner demanded of Wilkins possession of the office, which was
refused. To this Wilkins pleaded: (1) Petitioner had not been a
resident citizen of the State for four years and of the county for two
years immediately preceding his election; (2) Large was not eligible
because 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 two
years experience in teaching, or a graduate of a standard college, and
required him to have passed an examination; and (3) Large had not
paid a poll tax for the two years preceding his election. Petitioner
Large demurred to these three pleas, his demurrer was sustained, and,
defendant declining to plead further, final judgment was entered
removing Wilkins from the office and installing Large.

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

[148] claim to the office. After quoting the statute requiring a certificate of
eligibility, the Court held that the first and second pleas of defendant
were not demurrable, and said:" Section 204 of the Constitution
provides, among other things, that the qualifications, compensation,
and duties of the county superintendents of education shall be
prescribed by law. In pursuance of that constitutional authority, the
Legislature enacted Sections 6560 and 6563 of the Code of 1930, and
other provisions in the Code chapter on schools. Section 6560, among
other things, provides that the state board of examiners shall examine
all applicants or candidates for the office of county superintendent of
 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 superintendent
of education meets the statutory requirements." On the other hand, if
he lacks the requirements provided by the first clause of the statute, or
does not possess the certificate as to his educational and professional
qualifications provided by the statute, he is ineligible to the office,
and the courts will so adjudge. "So the first and second pleas set up
good 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 for
elected county superintendents of education; and further holds that, if
he lacks the statutory qualifications," he is ineligible to the office, and
the courts will so adjudge. "Aside from other reasons stated, this case
is directly in point and controlling here in favor of the validity and
enforceability 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 qualifications
for county superintendents of education. Chapter 10, Section 8 (a)
requires that he must be a qualified elector, a citizen of the State for
four years and of the county for two years immediately preceeding his
election. Appellee complies with these citizenship standards. Chapter
10, Section 9, quoted above, then establishes the qualifications of
experience 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 and

regulations of the State Board of Education covering the certification
of instructional personnel, and is referred to in Section 9 of Chapter
10 and made a part of the stipulation in this case. These rules contain
the rules and regulations of the State Board of Education covering the
issuance of such certificates; and the Department of Education is the
administrative arm of the Board of Education, executing and
administering 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
 practicable after the passage of this act, rules and regulations
governing the issuance of all teachers' certificates, and to administer
said rules and regulations. Such rules and regulations shall not be
changed without giving a minimum notice of one year to all holders
of teaching certificates affected by this act. "This act was first passed
in 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 and
strengthened 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 and

regulations governing the issuance of all teachers' certificates and to
administer said rules and regulations. It is the purpose of this section
to continue in existence the power and authority previously conferred
upon the state board of education by section 6281, code of 1942, as
last amended by chapter 279, laws of 1948, and the rules and
regulations adopted by the state board under the said statutes shall
remain 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 existing
rules 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 of
certification adopted by the state board of education. "The foreword
to them notes that the statutes place in the hands of the State Board of
Education the duty of setting up and administering teacher education
and 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 laws
relating 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 responsible
for the rightful functioning thereof. "Section 6245-02.

[159] Hence the rules of the State Board of Education and Department of
Education are recognized and authorized by the 1953 statute, and are
carried forward by it. They establish on page 30 the requirements for
a Class A Certificate for Administrators, except insofar as Section 9
raises 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
 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 credit
in 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 such
qualifications. Therefore the answer and stipulation admit that
appellee 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 served
as principal for three years. He contends that he met this requirement
by adding to his three years as principal fifty-two months during
which he taught On-the-Farm Veterans' school classes. Land testified
that he taught vocational agriculture to war veterans who were usually
over twenty-one years of age. He met the students one afternoon a
week in class at the school building, and visited the farms of the
students one evening a week. On such visits he supervised their
farming, care and maintenance of tools, record keeping, etc. The
students kept records, he checked them, and made monthly reports to
the State Department of Education. There were three of these classes,
with a teacher for each. Neither of the other two teachers were under
Land's supervision or administrative control. He did not supervise any
school 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's
certificate for secondary education. Appellee's teaching work in the
veteran's school cannot be considered work in an administrative
position. In that sense, every teacher serves in an administrative
position, and the statutory requirement would be meaningless.

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

[163] Moreover, the rules of the Board of Education make a distinction

between teaching certificates and Class A certificates for
Administrators. The latter authorizes one" to serve as superintendent
of schools or assistant superintendent of schools ". The graduate
college 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 officers
administer a school system," performing administrative duties ", as
distinguished from a teacher" to whom is entrusted the instruction of
pupils in a grade or subject. "So appellee failed to comply also with
 the statutory requirement that he have five years experience in an
administrative position in a public school.

[164] (Hn 9) In addition, appellee admitted that the Department of

Education had refused to give him a certificate of eligibility to be a
candidate for and to hold the office of county superintendent of
education. This is the equivalent of an administrative ruling by the
Department that he is not eligible to secure a Class A certificate for
Administrators under the 1953 Act. Such certificates of eligibility
have been required by statute for at least fifty-one years, since the
Code of 1906. Although appellee possesses a certificate under the
now repealed requirements of the Laws of 1938, Chapter 231, he does
not have and cannot secure such certificate of eligibility under
Section 9. Under that statute, it is" unlawful for the election
commissioners to place the name of any person upon the ballot as
candidate 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 and

stipulation, and his own testimony that he wholly fails to comply with
the act; he does not have a Class

[166] A Certificate for Administrators, or the required graduate work in

school administration, or five years actual experience in an
administrative position in a public school, or a certificate of eligibility
from 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 is
constitutional. The express terms of Constitution Section 204 support
its enactment. It gives the Legislature power to fix" qualifications,
compensation and duties ". Section 204 then goes further and
provides that the Legislature" may otherwise provide for the
discharge of the duties of county superintendent ", thus authorizing
performance of the duties of that position by some other officer or in
some other way. To make the grant of power to the Legislature even
more specific, Section 204 also states that the Legislature may abolish
the office. So Section 204 vests in the Legislature, as to county
superintendents 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
 no others, shall be eligible to office, except as otherwise provided in
this Constitution. "(Emphasis added.) The contention of appellee, that
this provision applies also to county superintendents of education, is
contrary to the terms of Section 250, which renders it pertinent"
except as otherwise provided in this Constitution. "Section 204
otherwise provides in the Constitution for the appointment, or
election, or abolition of the office, and vests in the Legislature power
to prescribe qualifications, compensation and the duties. So Section
250 does not affect the Legislature's power in prescribing
qualifications for county superintendents of education. This
distinction from other county offices

[170] was noted in McCool v. State. And in Wilkins v. Large additional

educational qualifications and a certificate of eligibility from the State
Department of Education were held to be valid exercises of legislative
power.

[171] (Hn 13) Appellee contends that the statute is an unconstitutional

delegation of legislative power to the State Board of Education and its
administrative arm, the Department of Education. Legislative history
concerning county superintendents of education reflects that for more
than fifty-one years the Legislature has delegated to the State Board
of Education the rule-making power to carry out statutory
requirements for qualifications of this office. Wilkins v. Large
specifically upheld this grant of power.

[172] (Hn 14) Chapter 9, Section 10, provides in effect that the State
Department of Education, the administrative arm of the Board of
Education, has the power to define in its rules and regulations a Class
A Certificate for Administrators. It also prescribes certain
requirements 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 in
the manner provided by law. "The Board is given power to
promulgate 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 rule
governing the delagation of legislative functions. "Abbott v. State, 106
Miss. 340, 63 So. 667 (1913). Although the Legislature cannot
delegate its power to make a law, it can delegate to an administrative
agency the power to determine some fact or state of things upon
which the law makes or intends to make its application depend. (Hn
16) The essential is that the statute delegating the power must
reasonably define the area in which the administrative agency
 operates and the limitations

[174] upon its powers. Section 9 and the other legislation dealing with
licensing of teachers and administrators comply with this
requirement. The power exercised is similar to the rule-making power
of such agencies as the State Oil and Gas Board and the Workmen's
Compensation Commission. The legislative delegation of power to
administer the laws with reference to teacher-licensing and the
certification of instructional personnel is the basis of the board's rules
and regulations designed to carry out and administer these statutes.

[175] (Hn 17) It is argued that Section 9 is invalid because it contains an

unreasonable discrimination in favor of incumbents of the office on
the effective date of the act. The clause complained of is:" provided
that no person who is serving as county superintendent of education
at the effective date of this act shall be ineligible for the office of
county superintendent of education because of lack of the
qualifications prescribed by this section. "It is said that the exemption
of incumbents of the office from being required to have the
prescribed qualifications in future elections violates the equal
protection and due process clauses of the Federal and State
Constitutions 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 legislation
and pass laws applicable only to persons or objects within a
designated class, provided such classification is reasonable and not
clearly arbitrary. 12 Am. Jur., Constitutional Law, Section 476. (Hn
19) The question of classification is primarily for the Legislature. It
does not become a judicial question except for the purpose of
determining whether it is clearly unreasonable. Great liberality has
always been indulged in the matter of classification. It must be looked
at from the standpoint of the Legislature enacting it. (Hn 20) Hence
there is a presumption in favor of legislative classification, of the
reasonableness and fairness of legislative action,

[177] and of legitimate grounds of distinction. So if any state of facts

reasonably can be conceived which would sustain it, the existence of
that state of facts at the time the law was enacted must be assumed.
(Hn 21) Although the presumption in favor of a classification is not
conclusive and is rebuttable, courts should not declare it invalid
unless it is of such a character as to preclude the assumption that it
rests upon any rational basis within the knowledge and experience of
the legislators. Ibid., Sections 519-521.
[178] Conditions facing the Legislature at the time of the enactment in 1953
of the statutes reorganizing the school system of the state apparently
indicated to it that the qualifications for county superintendents of
education should be raised. The Legislature had been doing this at
frequent intervals over a period of fifty-one years or more. Section 9
increases 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 were
incumbents at the effective date of the act, having acquired such
experience, information and knowledge, would be as qualified as
those who might be elected in the future without previous experience
but 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 seeking
that office again. At any rate, whether these ideas were in the minds
of the legislators or not, they certainly furnish a reasonable and just
basis for the distinction made in Section 9 between incumbents and
aspirants to the office who are not incumbents. So this classification
meets the requirements of the law as to reasonableness. Board of
Trustees of University of Mississippi v. Waugh, 105 Miss. 623, 62
So. 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. State
Tax 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, Chairman
State 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 not
meet the qualifications required by it, the court's constitutional duty is
to enforce the law as written and grant the relief prayed for by the
State.

[182] (Hn 22) Appellee argues that since the court has a discretionary power
in issuing a writ of quo warranto, that discretion should be exercised
here by refusing issuance of the writ; and that the State should be
barred and estopped from bringing this action, because of its delay in
enforcing the act, the Attorney General's opinion with reference to
appellee's teaching in Veterans' On-the-Farm classes, and because the
Chancery Court of Kemper County on May 19, 1955, held that the act
was unconstitutional and ordered the County Democratic Executive
 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 and
one-half months after Land took office. The Attorney General's
opinion 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, it
is undisputed that appellee does not meet other important
requirements of Section 9 and of the rules and regulations of the State
Department of Education. Moreover, this opinion is persuasive but
not

[184] determinative of whether in fact appellee complies with this

requirement, and we hold that he does not. The decree of the
Chancery Court of Kemper County of May 19, 1955, ordering the
County Democratic Executive Committee to place appellee's name
upon the primary election ballot, is not binding upon the State or the
Attorney 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, Section
15. The judgment of the circuit court was not placed upon a
discretionary exercise of power in denial of the writ. It was based
upon the erroneous premise that Section 9, Chapter 10, was
unconstitutional. The rule applicable to this case is that stated in State
ex rel., Fatzer, Attorney General v. Kansas City, 169 Kansas 702, 222
P.2d 714, 726-727 (1950):" It is true the court has a measure of
discretion in quo warranto proceedings. . . . This is a judicial
discretion. It is not to be used without reason and does not authorize a
court to ignore a valid applicable statute which has been promptly
invoked. "

[186] (Hn 24) And so in the instant case, the judicial discretion which the
court exercises in quo warranto proceedings must be used reasonably
and in the light of the facts of the case. It is undisputed that appellee
does not comply with substantial, and practically all of the
requirements of the statute. And the act is valid and constitutional. So
our duty is to enforce the act and to issue the writ of quo warranto,
finding that appellee has been exercising the functions of the office
without authority and removing him therefrom, as provided by Code
of 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,
 District Attorney v. Mayor and Commissioners of the City of
Greenwood, 157 Miss. 836, 127 So. 704, 129 So. 682 (1930).
However, that case

[188] is clearly distinguishable from the instant one. The State brought the
suit six years after the city, through its aldermen, had begun
exercising jurisdiction over some adjacent territory under an invalid
ordinance extending the city limits. The citizens of the adjoining
territory had for six years been voting and paying taxes as citizens of
the city, and the State had acquiesced in those actions. Ouster of the
city officers would simply have been a punitive measure on a
technical issue which would have resulted in considerable detriment
to the city and to those living in the adjacent area. Moreover, a later
statute, which had the effect of abolishing the Town of North
Greenwood, rendered" the whole object of this action . . . vain and
useless. "Most of the other cases relied upon by appellee deal with
suits against private and municipal corporations.

[189] In Kennington-Saenger Theatres, Inc. v. State, ex rel., District

Attorney, 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 was
observed that where statutory grounds for forfeiture exist in a quo
warranto action the trial court" is left no discretion as to whether or
not such penalty shall be enforced . . . "Moreover, appellee does not
claim that he is now qualified under the statute. Assuming arguendo
that such a circumstance, if it existed, might affect exercise of the
court's discretion, it is not possible that it exists in this case, since,
among other things, he could not now have five years of experience
in an administrative position in a public school. Nor does he claim
that he now has a Class A Certificate for Administrators, or a
certificate of eligibility from the State Department of Education, or
the required graduate work in school administration.

[190] There is no area in this case within which in a sound discretion the
writ could be refused by this Court. Failure to enforce the act, as
written, in a clear case such as this, where the defendant wholly fails
to comply with

[191] the statute, would in effect repeal the act and remove it from the
books. That is not a judicial but a legislative function. The
establishment and the administration of the school laws of the State
touch the lives of every child, parent and citizen. The importance in a
sound educational system of an adequate licensing system for
teachers and school administrators is manifest. The determination of
what 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
 of the State Board of Education, apply to the defendant as well as to
every other citizen. The final judgment of this Court and the writ of
quo warranto will be issued and directed to defendant as prayed for
by the State in its petition, adjudicating that defendant has been
exercising the functions of the office without authority and removing
him 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 the
year 1955. However, the issuance or denial of the writ of quo
warranto to eject one from office is addressed to the sound discretion
of the court and, in my opinion, the writ under consideration should
be denied. I think that the proceedings, under the circumstances in
this case, are unjust to Land and serve no good purpose from the
standpoint 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 this
language:" Although originally the writ of quo warranto was a writ of
right, it is in modern times, and generally speaking, not of that
character, but issues in the sound discretion of the court, even where
the state is seeking the writ, and this discretion in regard to the
proceeding is in some states recognized by statute. This is rightly so,
for the writ, or a judgment of ouster thereunder, is one which may
have drastic consequences affecting the public welfare. In exercising
such discretion, the court may and should consider all the
circumstances in the case, including lapse of time and circumstances
which would establish laches, acquiescence, or estoppel, and whether
the public interest will be served, for the court may refuse the writ or
judgment of ouster upon considerations of public policy, interest, or
convenience. Where, in quo warranto to test the right of a city to
exercise jurisdiction over certain territory, a judgment of ouster would
cause confusion or disaster in the administration of the affairs of the
city, and it does not appear that its refusal would be detrimental to the
public interests or prejudicial to the constitutional rights of the
 citizens, duly claimed and asserted, the court has the power to refuse
judgment of ouster. "

[198] In State, ex. rel., Jordan v. Mayor and Commissioners of City of

Greenwood, 157 Miss. 836, 127 So. 704, on the suggestion of error
reported in 129 So. 682, this Court said:" Although the opinion
heretofore delivered in this case did not in express words so say, it
carries the implication, as fully as if said, that we intended to hold
and did hold that we would exercise the discretion to consider all the
circumstances of a case, in quo warranto, and if on a full view of
these circumstances it appeared clear that the public welfare not only
would 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 a

proceeding in quo warranto designed to `disturb the peace and quiet'
of any public or quasi public corporation, and that the doctrine of
laches would be applied in such cases, although not ordinarily
applicable in proceedings by the state. In other words, in such a
proceeding we would not consent that the principle that no lapse of
time runs against the state, a doctrine established to promote the
interests 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 is
designed as a shield shall not be permitted to be turned into a sword.
"

[200] These are the facts and events which brought about the present
situation: Land was a school man. The general election was coming
up in 1955. In the latter part of 1954 many of the voters solicited
Land to make the race for County Superintendent of Education of
Kemper County. Land held a certificate of eligibility for that office
dated March 3, 1951. Some changes had been made in the law. There
was some question whether Land was then eligible for the office
under the strict requirements of the State Department of Education as
the Department might interpret them. Land sought the advice of his
friend I. M. Latimer, who was Superintendent of Education of
Neshoba County. They decided to write the Attorney General of the
State of Mississippi. Mr. Latimer did that under date of December 9,
1954. The Attorney General replied on January 4, 1955. Latimer and
Land interpreted the reply, whether rightfully or wrongfully, to mean
that Land was eligible as a candidate.

[201] Land then requested a Class A Certificate for Administrators be

issued to him by the State Department of Education, giving that
department his scholastic and educational qualifications. He was
 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 because
the agreed statement of facts in this case recites that" the State
Department of Education of the State of Mississippi has no rules or
regulations which define a Class A certificate for administrators, and
has no rules or regulations covering certification of instrumental
personnel. "It may be pertinent to here state that Land had had three
years actual experience in the administrative position in the public
schools of Mississippi as a high school principal and five years
experience 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 School
of Education at Mississippi Southern College and, as stated, had a
certificate of eligibility dated March 3, 1951.

[203] Land then, in order to be sure of his eligibility, instituted a

proceeding in the Chancery Court of Kemper County against the
members of the Kemper County Democratic Executive Committee to
determine whether his name should be placed upon the ballot as a
candidate for County Superintendent of Education. This matter was
heard at the county courthouse on May 19, 1955, before a large
gathering 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, and
further held that Land had the qualifications for that office and
ordered the Executive Committee to have Land's name printed on the
ballots used in the primary election. A certified copy of the decree
was delivered to the executive committee and Land's name was
printed on the ballot for

[204] the primary election to be held August 2, 1955. There was no appeal
from this decree.

[205] It appears that there were three candidates for the office and Land
received a majority of all of the votes cast and was nominated as the
Democratic candidate at said first primary. The County Election
Commissioners placed Land's name upon the ballot for the general
election to be held in November 1955, and the agreed stipulation
between counsel, says he" was elected to said office by an
overwhelming majority "of the votes cast in the said general election.
Land was issued a commission as Superintendent of Education of
Kemper County by the Secretary of State and the Governor of
 Mississippi, as provided by law.

[206] He executed bond, took the oath of office, and entered upon his duties
the Second Monday in January 1956.

[207] Some four and one-half months thereafter the present quo warranto
petition was filed.

[208] The agreed stipulation of counsel recites that" in order to accept said
office of County Superintendent of Education of said Kemper County
and enter into, occupy and discharge the duties thereof, Respondent
necessarily gave up his work and avocation and profession of
teaching and superintending public schools in said Kemper County by
means of which he customarily earned a livelihood. "The agreed
stipulation further recites that" An appreciable number of persons who
did not hold and were ineligible to obtain the Class A Certificate for
administrators therein mentioned, became candidates for the office of
County Superintendent of Education in the general election held in
November, 1955, and were elected to said office, and were issued
commissions to hold said office, and now (June 8, 1956) occupy and
hold said office in the same manner as your Respondent. "

[209] It will be noted too in this connection that Chapter 10 of the Ex. Sess.
of the Legislature of 1953, changing the eligibility requirements of
candidates for the office of

[210] county superintendents of education, exempted from the requirements

those in office on the effective date of the passage of the act, to wit,
December 28, 1953. This, in effect, exempted from the eligibility
requirements eighty-two prospective candidates. This at least
indicates that the possession of the requirements which the State
Department of Education might impose were not absolutely essential
to the qualifications of candidates for said office.

[211] It is clear to me that it would be unfair and unjust to now eject Land
from the office.

[212] Nor is it perceived just how the public interest would be served by the
ejection of Land. In the first place no one else is claiming a right to
the office. This is not a contest between two people claiming the right
of occupancy of one office. No one is being deprived of his
individual rights. If Land is put out there must be the expense and
trouble of another election. Nowhere in this record is it claimed that
 Land is not, as a matter of fact, well qualified to fill the office or that
he has not done so in a most satisfactory manner. For ought that is
shown here, he is as good a county superintendent of education as the
State affords. Indeed, his qualifications above set out would seem
without question to qualify him in fact to be county superintendent of
education. Another, taking Land's place, might be far less efficient
than is Land. Land may, or may not, be eligible when the ultimate
time arrives for selection of his successor. That can only be
determined by the facts and circumstances, including the rules and
legislative enactments, which may exist at the time. Any attempt to
adjudicate that question now would be pure dicta. The question is not
before us. But he may sincerely and honestly think he is qualified and
make the race and receive the greater number of votes, thus bringing
about the anomalous situation of an ejected man being re-elected to
the office from which he was ejected. But this only adds to the public

[213] confusion. Apparently, since his unexpired term is to run longer than
six months, his successor will be appointed by the board of
supervisors to serve until succeeded by one elected at a special
election, who, upon certificate by the board of supervisors, will be
commissioned by the Governor. Section 3293, Vol. 3, Miss. Code
1942 Recompiled. Again, Land has drawn his compensation as county
superintendent of education. Is suit to be instituted in an effort to
recover what he has been paid? It is disclosed in this proceeding that
there are some eight other county superintendents in the State in
substantially the same situation as is Land. Are eight other quo
warranto proceedings to be instituted to eject these eight from office?
If they are ejected, then the question of recovery from them of the
money they have received naturally arises, as well as the matter of the
expense and inconvenience of eight special elections, with the
incidental disruptions of the educational systems in nine counties of
the State. There will be involved also the question of the appointment
of nine county superintendents of education to act from the time of
ejection of the present occupants to date of induction into office of
the newly elected officers. It seems to me that nothing can come from
sustaining this quo warranto proceeding except private injustice to
Land and confusion and expense to the public. If the people want a
change they can make it at the next primary.

[214] In my view fairness and sound discretion call for denial of this writ.
More harm than good will result from its issuance. There will be
confusion confounded.

[215] Chief Justice McGehee, who presented this case to the conference en
banc in the first instance, and who is not absent because of illness,
has requested me to say that he joins in this dissent, and that he also
thinks that the provisio in Section 9, Chapter 10, Laws of the Ex.
 Sess. 1953, is inseparable from the remainder of the section, so as to
render the same unconstitutional as a classification

[216] of candidates for County Superintendent of Education, there being no

difference between the experience possessed by incumbents of the
office on the effective date of the Act and former incumbents.

[217] McGehee, C.J., joins in this dissent.

[218] ON SUGGESTION OF ERROR

[219] September 23, 1957 96 So. 2d 828

[220] HALL, J.

[221] Chief Justice McGehee and Associate Justice Roberds adhere to the
views expressed by them in the dissenting opinion written by Judge
Roberds when this case was originally decided by this Court. They,
therefore, are of the opinion the suggestion of error should be
sustained.

[222] The other members of the Court are of the opinion the suggestion of
error is not well taken, which necessarily results in its being
overruled.

[223] Suggestion of error overruled.

[224] Lee, Kyle, Holmes, Arrington, Ethridge and Gillespie, JJ., concur.
McGehee, C.J. and Roberds, J., dissenting.

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