This is a proceeding in error, brought by the county superintendent of public instruction of Bryan county, to relieve himself from the obligations to obey an order of mandamus, made originally in the alternative, by the district judge, and later peremptory by the district court. The findings and judgment complained of can be found on page 89A of the record, and are as follows:
"Findings of Fact. "Now, on the 27th day of July, 1931, the court after hearing the testimony of the witnesses introduced by the plaintiff and the defendant and the argument of counsel, makes the following findings of fact:
"That this plaintiff, Joe Smith, on the *Page 44 2nd day of July, 1931, entered into a legal and valid contract with the school board of school district No. 51, Bryan county, Okla., under and by virtue of which contract the said Joe Smith was employed to perform the duties of superintendent and teacher for the Platter school for school district No. 51, Bryan county, Okla.
"That the said Joe Smith at the time of making said contract with said school board was the holder of a valid certificate or B.S. degree qualifying him to perform said duties in said county for said district; that said contract was in all respects made and executed in strict compliance with the laws of the state of Oklahoma governing such matters and was made and entered into by said school district board at a legal meeting held for that purpose by said school board, and was duly signed by L.S. Smith, director, R.E. Sims, clerk, and E.P. Hartwell, member, the said persons being the duly elected, qualified and acting members of said school board.
"The court further finds from the testimony that the said Joe Smith was not guilty of incompetency, cruelty, negligence, or immorality, but that according to all of the testimony offered in the case, and the court so finds, he was competent and qualified in all particulars.
"The court further finds that the said defendant, Sherl Shoffner, found and held the said plaintiff to be competent and qualified and guilty of no offense that would bar him from teaching school in Bryan county, Okla., and had offered to approve his contract to teach school in Bryan county, Okla., in some other district. The court further finds that the refusal of the county superintendent the defendant herein, to approve said contract was based on no legal justification whatsoever, but was founded simply on the personal desires of the said defendant, Sherl Shoffner.
"The court further finds that the said Sherl Shoffner agreed to countenance a trade of contracts between the said Joe Smith and one Earnest Sturch.
"Conclusions of Law. "The court therefore concludes as a matter of law that the peremptory writ of mandamus should issue; that it was plainly the intent of the Legislature that the local school boards should be the sole power authorized to make legal contracts with teachers to teach in their schools, and that the only restriction upon that right was that they could not employ teachers who were guilty of incompetency, cruelty, negligence or immorality; and that when the board had employed a teacher who was qualified and competent, who was not guilty of immorality, or negligence, that it then became the ministerial duty of the superintendent to approve such contract.
"The court concludes as a matter of law that it was not the intent of the Legislature of this state to put it in the power of one man, the county superintendent, to set aside and disregard the plain intent and wishes of the local community, the community most vitally affected by such an act. The court concludes as a matter of law that the duty sought to be enforced in this case is clear and indisputable and free from all doubt and uncertainty. To give other effect to the facts in this case would make it possible for the county superintendent of this county to totally disregard the wishes and the express written desires of the people expressed through their local representatives, the school boards.
"The court does not hold that it is the duty of the county superintendent to approve all contracts regardless of the character of the persons employed, and if there was any testimony before this court holding or showing that the plaintiff, Joe Smith, was incompetent or irresponsible, this court would hold that a writ of mandamus would not lie, but in this case no sucn allegation is made; no such proof is offered.
"The peremptory writ of mandamus will therefore issue.
"Both plaintiff and defendants save their exceptions to the findings of fact and conclusions of law.
"Porter Newman, District Judge.
"Indorsed:
"No. 10143 Joe Smith v. Sherl Shoffner, Co. Supt. Findings of Fact and Conclusions of Law. Filed in the office of the Court Clerk Bryan County Aug. 17, 1931. L.W. Hughes, Court Clerk, By L.W. Hughes."
The proceeding originated in an educational administrative matter. Its progress developed into the sensational, and its culmination resulted in conclusions as to legislative policy, followed by mandamus alternative, changed by testimonial evolution into mandamus peremptory. The evidence in a general way was a recital of the relations of the parties, and at times bordered on the salacious. Plaintiff was a married man of family. He had a college degree of B. S., conferred by the Southeastern Teachers College, that was relied on in the court below, and in the oral argument here, as evidence of competency to teach the Platter school in district No. 51 in Bryan county. The county superintendent took office July 6, 1931, and there was shortly thereafter presented to him for approval the contract of defendant in error with the school board of the district to teach the school for the school year 1931-32, on its face calling for salary for ten months at $175 per school month. The teacher was required to become a member *Page 45 of the county and state educational association, and to attend all educational meetings called by the county superintendent, and to co-operate with the county superintendent in the development of educational interests in the county, and the school board agreed not to deduct from the salary of the teacher for any loss of time so occurring. The plaintiff's interpretation of the contract, as developed on page 23 of the record, was that he was entitled to 12 months' salary for nine months work, and he had so taught at Platter in previous years. At page 25, the plaintiff said there was nothing unusual about teaching nine months and receiving pay for twelve months.
Charges of gross misconduct of plaintiff, in the way of drunkenness, and improper proposals to female acquaintances, who bore relations to the school, were brought to the attention of the county superintendent. These the plaintiff explained by admitting that he drank sometimes, but had never been intoxicated, but denied ever going to the school with whisky. He was charged with intoxication while driving an automobile on the highway. He explained it by stating the circumstances. He was driving 45 miles an hour on a misty night, with poor lights, and ran into a ditch. As to improper proposals, and making "dates," he explained these things by saying it was merely an invitation to go "swimming," while the young lady, testifying concerning the date, said: "He just said, 'Let's go somewhere,' and I laughed it off, and that was all that was said." She said she did not know how many times he had tried to "make a date," and it was just in a "joking way, that is all," and being asked about knowing about the plaintiff's meaning of "Let's go swimming," she replied. "I didn't know whether he did or not." Other charges were made of neglect of school work, and it appeared that practically each week the plaintiff had been away. His explanation was that classes had not suffered, and that he had been on philanthropic rather than philandering expeditions.
After a motion for new trial and notice of appeal, the case comes here regularly by case-made. Briefs have been filed by the county attorney, Roy Paul, and B.W. Carter, assistant county attorney, for the plaintiff in error, the county superintendent. On behalf of the defendant in error, a brief has been filed by Messrs. McDonald McDonald, and a reply brief has been filed by the county attorney and the assistant county attorney, and there has been added to this reply brief the names of Messrs. Ferguson Semple, and John L. Boland, as of counsel for plaintiff in error.
The cause was argued by the county attorney on the one side, and by one of the attorneys on the brief on the other side and also by Mr. W.E. Utterback, an attorney of Durant, Okla. The argument adduced on the side of the county superintendent tended to establish the position that he was convinced that the plaintiff was not a fit person, morally, to be granted the privilege of teaching the children in Bryan county, or being superintendent of a school therein. The argument advanced on the other side was that the plaintiff had a B.S. degree, and was qualified to teach school, and to superintend the school, and that the local school board had made a contract with him for the purpose of teaching, and that it was necessary to have the approval of the county superintendent in order to draw the salary. The argument is further made that it was a matter that a court should interfere with by mandamus, and compel the superintendent to approve the contract in accordance with the form that the contract was drawn on, which left a blank for such approval. At the base of the form there appears a statement as to the law not allowing the teacher to draw pay, except pursuant to an approved contract. And also there was an oath of allegiance to be taken by the teacher to support the Constitution of the United States and of the state of Oklahoma.
The briefs set out the evidence that was adduced before the court, and the statements therein contained as to what the evidence was, and the arguments adduced therefrom, both for and against, are somewhat startling, both as to facts and as to law. This court has practically decided, on more than one occasion, the law in this case, and it is frankly admitted by the attorney for defendant in error that unless this court overrules its former decisions, his client will never get the money, and strong urging is made that we overrule the case of Means v. Vernon, hereinafter referred to. It is urged in one brief that there is not a scintilla of evidence to justify the superintendent in believing that Mr. Smith was not qualified to teach school in Bryan county; in the other that the evidence was the contrary.
These challenges have necessitated our examination in full of the testimony submitted to the court below. That examination is by no means reassuring. Undoubtedly there was made a prima facie case of the complete unfitness of the plaintiff below to occupy *Page 46 the position of superintendent of schools at Platter, as measured by the usual standard.
The geography of Platter shows that it is in the southern part of the county, and that Bryan county is very richly endowed with streams of varied kinds. The Clear Boggy, according to the map, bounds it on the northeast, the Washita on the west, the Red on the south, and in its confines are found the Blue and the White Grass. Surrounded by so many waters, and possessed of a car, and it being in the months of the summer, the explanation of the plaintiff about going swimming, or, as one of the ladies put it, "somewhere," may have been the result of his surroundings, aided by an undesigning mind.
Whether rightfully or wrongfully, the superintendent did not think the plaintiff was fitted, and did not think he should approve the contract. It appears to us that the superintendent not only was justified in guarding, but was required to guard the interest of the taxpayers, and children of the county, as against contracts made as this one was. We have practically held in the case of Means v. Vernon, 108 Okla. 123, 235 P. 163, that his discretion in this matter should not be interfered with by the court. Evidently the remedy for the conduct of the superintendent is at the ballot box, if the people have a grievance, and is not in the courts.
In this case, learned counsel have struggled hard to get the doctrine established that the local school boards, practically 70 in number, have more judgment than the one county superintendent. But the law has required the superintendent of public instruction to perform certain duties, and he has been sworn to perform those duties, and is under oath and financial bond so to do. We do not think that the lower court was within its rights in granting this mandamus.
By reference to the statute on the subject of the duties of the superintendent, C. O. S. 1921, and the citations put there by the annotater, we probably can get additional light, other than that shed by the Means Case, upon the subject, though the light of that case shines forth as a beacon light from the hills, and the meaning of the court in that case could scarcely be misconstrued.
Most clearly the approval of the contract in a case of this; character calls for discretion of the highest order. The office of superintendent of public instruction for a county is clearly perpetuated in article 17, Sec. 2, of the Constitution. Section 10311, C. O. S. 1921, provides for the election by the electorate of the county of a county superintendent of public instruction, and the other sections prescribe duties for him. The name "superintendent" carries with it its own definition, and shows that he is above somebody, and required to look after the welfare of the schools, and we think that he is above the local school boards. Under section 10311 is, an annotation of the case of School District No. 17 v. Zediker, 4 Okla. 599,47 P. 482, and the annotator says that the court holds that the powers of the superintendent are judicial, and cannot be reviewed by the court in the absence of abuse. The reason given is stronger against the mandamus order in this case than the annotator expresses it.
As applied to the case here, and the responsibilities of the superintendent, and the necessity for safeguarding the morals, of our children and their teachers, we believe that the superintendent below was fully convinced of the justice and necessity of disapproving this contract. Whether the plaintiff was guilty of what he was charged with or not, for the purposes of this case, would not be controlling in every particular, for the reason that the superintendent had his duty to perform, and he had a reasonable ground for this refusal, and one that appealed to his conscience, and under these decisions the superintendent could be no more controlled in acting on that which was within his discretion, by mandamus, than the court that granted it could be controlled by mandamus in the manner of performing a discretionary duty. As to the people that are concerned in this case, it is not so much the attorneys in the case and the litigants as those who will make the future citizens of this state. It is, a proposition largely of child welfare. The Bible tells us of the decision of Solomon whereby he discovered who was the true mother when the two women were claiming the child. Perhaps the true mother in this case will be discovered and others will rise to call her "blessed" in after years in Bryan county. We should no more sin against the child now than in the days of the patriarchs. The exclamation of a son of Jacob, as found in the 22nd verse of the 42nd chapter of Genesis, is called to mind by a review of this case, and is as follows:
"22. And Reuben answered them, saying Spake I not unto you, saying, Do not sin against the child; and ye would not hear? therefore, behold, also his blood is required."
And experience, as embodied in Proverbs, *Page 47 22nd chapter, 6th verse, is just as convincing today as when the language was crystallized, as follows:
"6. Train up a child in the way he should go; and when he is old, he will not depart from it."
The superintendent appears not to have been long experienced, from this record, in dealing with the school situation, but his idea of preserving the morals of the community and the reputation of the schools in his charge is certainly to be commended. We think it would bring inextricable confusion for the courts to interfere with county superintendents of public Instruction under the circumstances detailed in the evidence in this case.
Recent utterances of this court can be found in the case of Herndon v. Excise Bd. of Garfield Co., 147 Okla. 126,295 P. 223.
The second paragraph of the syllabus to that case is as follows:
"Mandamus will not be awarded unless a clear legal right thereto exists, nor even where the legal right is clear, where the issue of the writ would disturb official action, or create disorder or confusion."
The writ of mandamus in this case is discharged, and the lower court is directed to dismiss the proceeding, all at the cost of the plaintiff below, defendant in error.
RILEY, CULLISON, and ANDREWS, JJ., concur. HEFNER and McNEILL, JJ., concur in conclusion. LESTER, C. J., not participating. CLARK, V. C. J., absent. SWINDALL, J., dissents.