concurring. I concur in the result, but I would reverse and dismiss for want of jurisdiction. The chancery court is totally devoid of jurisdiction to issue a writ of mandamus, which appellee admitted was the only remedy sought. I am not unmindful of Ark. Stat. Ann. § 33-101 (Repl. 1962) which is § 1 of Act 54 of 1939, but it is patently unconstitutional. It violates Article 7, §§ 11 and 15. The former provides that the circuit court shall have exclusive jurisdiction of all civil and criminal cases, the exclusive jurisdiction of which may not be vested in some other court provided for by the Constitution. A more apt example of a legislative attempt to extend or enlarge the jurisdiction of courts of equity could not be found.
That the writ of mandamus is a common-law writ and within the jurisdiction of the circuit court only should be without argument, being a remedy at law. 34 Am. Jur. 810, Mandamus, § 4. It is a common-law writ as distinguished from an equitable one and was unknown to the equity practice. 34 Am. Jur. 812, Mandamus, § 6 ; 55 C. J. S. 47, Mandamus, § 17b. In sustaining the jurisdiction of a circuit court, this court said that mandamus is essentially a proceeding at law. Faulkner Lake Drainage Dist. v. Williams, 169 Ark. 592, 276 S. W. 604. It is designed for the enforcement of legal rights. Arkansas State Highway Commission v. Otis & Company, 182 Ark. 242, 31 S. W. 2d 427 ; Bingham v. McGehee, 185 Ark. 707, 49 S. W. 2d 358 ; Barney v. City of Texarkana, 185 Ark. 1123, 51 S. W. 2d 509.
The legislature is without authority to give the chancery courts any jurisdiction they eould not exercise at the time of the adoption of the Constitution of 1874. It can vest chancery courts, only with jurisdiction in matters of equity. German Nat’l Bank v. Moore, 116 Ark. 490, 173 S. W. 401 ; Wilson v. Lucas, 185 Ark. 183, 47 S. W. 2d 8 ; Patterson v. McKay, 199 Ark. 140, 134 S. W. 2d 543. Their jurisdiction is fixed and permanent, and cannot be enlarged or abridged. Any law passed for the purpose of divesting, enlarging, diminishing, abridging or changing it is unconstitutional. Hester v. Bourland, 80 Ark. 145, 95 S. W. 992 ; Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579. In Patterson v. McKay, supra, this court said it did not offer a more extended discussion of this matter for the reason that it thought the principle must be universally recognized.
This court has held other legislative acts unconstitutional for this, reason. Among them are:
An act providing for contest of primary elections in the chancery court was held unconstitutional. Hester v. Bourland, 80 Ark. 145, 95 S. W. 992.
An act purporting to give the chancery court jurisdiction to oust an incumbent officeholder for corruption in office. Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579.
In matters of which-it has no jurisdiction, the judgments of a chancery court are void. Raney v. Hinkle, 80 Ark. 617, 95 S. W. 993 ; Miller v. Tatum, 170 Ark. 152, 279 S. W. 1002. The disregard of such void judgments would not constitute contempt. Miller v. Tatum, supra. They would not be res judicata in any future action. Weathers v. City of Springdale, 239 Ark. 535, 390 S. W. 2d 125. A fundamental want of judicial power cannot be supplied bv acquiescence of the parties. Sheffield v. Heslep, 206 Ark. 605, 177 S. W. 2d 412 ; O’Dell v. Newton, 224 Ark. 541, 275 S. W. 2d 453 ; Catlett v. The Republican Party of Arkansas, 242 Ark. 283, 413 S. W. 2d 657. The lack of jurisdiction of the subject matter cannot be waived by any act of the parties. Sugar Grove School Dist. No. 19 v. Booneville Special School Dist. No. 65, 208 Ark. 722, 187 S. W. 2d 339. Consent of the parties cannot possibly confer jurisdiction of the subject matter. Jernigan v. Baker, 221 Ark. 54, 251 S. W. 2d 999 ; Weathers v. City of Springdale, supra.
Whether the question is raised by the parties or not, it is not only the power but the duty of a court to determine whether it has jurisdiction of the subject matter. 20 Am. Jur. 2d 453, Courts, § 92 ; 21 C. J. S. 175, Courts, § 114.
I would dismiss, rather than remand with directions to transfer to a court of law, because I think appellee has sought to have the court control the discretion of the Superintendent of Schools and the Directors of the School District. The appellee had no right to a leave of absence under her contract, nor do there appear to be any statutory provisions governing the same. Provision for such leaves, then, becomes a discretionary matter with the school board. They exercised this discretion by providing administrative policies in connection therewith. While these regulations provide for re-employment of a teacher granted leave thereunder, after proper notice by the teacher, there is the proviso that there must be a vacancy which, in the judgment of the superintendent of schools, the returning employee is qualified to fill. Certainly the physical ability of appellee to perform -was an element to be considered by the superintendent and I feel that the evidence is clear that by the time this ■was established (assuming that it was established) the superintendent did not feel, in his judgment, that ap-pellee was qualified to fill any vacancy then existing.
It is elementary that mandamus will not lie to compel performance of an act that is discretionary. Smith v. Sullivan, 190 Ark. 859, 81 S. W. 2d 922 ; Jackson v. Collins, 193 Ark. 737, 102 S. W. 2d 548 ; Hardin v. Cassinelli, 204 Ark. 1016, 166 S. W. 2d 258 ; State ex rel Pilkinton v. Bush, 211 Ark. 28, 198 S. W. 2d 1004 ; Village Creek Drainage Dist. of Lawrence Co. v. Ivie, 168 Ark. 523, 271 S. W. 4. It will only lie to compel performance of a purely ministerial act or to require, but not control, the exercise of discretion. Arkansas State Highway Comm. v. Mabry, 229 Ark. 261, 315 S. W. 2d 900 ; Dotson v. Ritchie, 211 Ark. 789, 149 S. W. 2d 603 ; Satterfield v. Fewell, 202 Ark. 67, 202 S. W. 2d 949. It cannot be used to correct an erroneous decision already made by an officer or tribunal. Jackson v. Collins, 193 Ark. 737, 102 S. W. 2d 548 ; Mance v. Mundt, 199 Ark. 729, 135 S. W. 2d 848 ; Mobley v. Conway County Court, 236 Ark. 163, 365 S. W. 2d 122 ; Dotson v. Ritchie, supra ; State ex rel Latta v. City of Marianna, 183 Ark. 927, 39 S. W. 2d 301. It will not be granted to review the exercise of discretion by an officer or board. Better Way Life Ins. Co. v. Graves, 210 Ark. 13, 194 S. W. 2d 10.
I also think that mandamus would not lie because it is essential to the issuance of the writ that the legal right of the petitioner to the performance of the act be clear, undoubted and unequivocal, so as not to admit of any reasonable controversy. Naylor v. Goza, 232 Ark. 515, 338 S. W. 2d 923. The petitioner failed to make such a showing as to invoke this writ, regardless of whether she was entitled to other relief or not.
I am authorized to state that Brown, J., joins in this concurring opinion.