Ussery v. City of Laredo , 65 Tex. 406 ( 1886 )

Willie, Chief Justice.

The contract of Ussery to teach a public school was made with three persons claiming to act as trustees of public free schools, by appointment of the county judge of Webb county. Several months previous to the date of this contract, the city of Laredo had assumed control of the public schools within its limits, and the trustees, acting in accordance with the law authorizing cities to take charge of free schools, were, at that time, alone authorized to make such a contract. There is no pretense that the school taught by Ussery had ever been recognized by the proper authorities as a public school, or that the city or its trustees had become parties to the contract in any manner that would make it binding upon them. The city authorities do not appear ever to have known that the appellant was claiming to act in the capacity of a public teacher, until he called upon them for payment of salary for his services as such. The law points out the method by which public schools may be created, teachers employed, and what will entitle them to salaries, and how these shall be paid. This method was not pursued, in any respect, in this case, and the school taught by Ussery was no more than a private school and the court did not err in so finding.

Under such circumstances, we cannot see that the council had any authority to order the salary demanded by him to be paid. The fund in their hands devoted to educational purposes was to be appropriated to public schools alone, and they could not misapply it to the support of schools of any other character. Under this view, it does not seem necessary to determine whether or not the resolution to pay Ussery was passed by a sufficient number of votes after it was vetoed by the mayor. It seems, however, that it received the votes of only three out of six aldermen, the latter being the whole number of which the board was composed, and, under art. 360, Revised Statutes, the resolution failed.

The superintendent of public instruction had no authority to command the city to pay Ussery’s salary. His authority extended only to public school matters; and, even if we admit that he might reverse the action of a board of aldermen refusing the claim of a public teacher, he had no authority to order them to pay salaries to the teachers of private schools. Such a case is beyond his jurisdiction, and the city was not bound to obey his order upon the subject.

We think the court below committed no error in refusing the mandamus, and the judgment is affirmed.

Affirmed.

[Opinion delivered February 2, 1886.]