Mississippi Advisory Opinions April 12, 1979: 19790412 (April 12, 1979)

Advisory Opinion Text

Mr. Percy Washington

Route 3

Box 382 A

Greenwood, Mississippi 38930

Dear Mr. Washington:

Per your request in your letter to this office dated April 2, 1979, we are enclosing, as an accommodation to you, a copy of Section 37–5–73, Mississippi Code of 1972 which prescribes the qualifications required to be eligible ‘. . . to the office of County Superintendent of Education.’

Very truly yours,

A. F. Summer, Attorney General.

George M. Swindoll Assistant Attorney General.

ATTACHMENT

§ 37–5–73. Qualifications of superintendent.

(1) Before anyone shall be eligible to hold by election the office of county superintendent of education he shall be a qualified elector and a citizen of the state for four years, and of the county for two years immediately preceding his election. In counties where the office of county superintendent of education is made appointive, the said county superintendent shall not be a public officer per se, and in the discretion of the county board of education and for good cause set forth on its minutes, such appointive county superintendent need not be a qualified elector or a citizen of the State of Mississippi on the date of his employment; the term of his employment shall be by written contract not to exceed four years.

(2) No person shall be eligible to the office of county superintendent of education unless such person shall hold a certifiate 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 as defined in the rules and regulations of the state department of education covering the certification of instructional personal, awarded by an institution approved by the state department of education, and that he has not less than four years' actual experience as a teacher, or 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. 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 subsection, 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 subsection.

SOURCES: Codes, 1942, §§ 6271–08, 6271–09; Laws, 1953, Ex Sess ch. 10, §§ 8, 9; 1957, Ex Sess ch. 14; 1962, chs. 344, 345, 346; 1966, ch. 406, § 1; 1968, ch. 384, § 1; ch 398, § 1; 1970, ch. 372, § 1, eff from and after passage (approved April 1, 1970).

Cross references—

For other sections derived from same 1942 code section, sec §§ 37–5–61, 37–5–63, 37–5–65, 37–5–67, 37–5–69, 37–5–75.

Research and Practice References—

47 Am Jur (1st ed), Schools § 31.

48 CJS, Schools and School Districts §§ 94, 95.

JUDICIAL DECISIONS

Section 9, Chapter 10, Laws of 1953 (this section [Code 1942, § 6271–09]), prescribing additional qualification requirements for county superintendents of education, is constitutional. State es rel. Patterson v Land , 231 M 529, 95 So.2d 764, sugg of error over 231 M 574, 96 So.2d 828.

Section 9, Chapter 10, Laws of 1953 (this section [Code 1942, § 6E71–09]) prescribing, in effect, that the 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 and setting fourth certain requirements for such certificate, is not an unconstitutional delegation of legislative powers to state board of education. State ex rel. Patterson v Land , 231 M 529, 95 so 2d 764, sugg of error overr 231 M 574, 96 So.2d 828.

Since Mississippi Const. § 204 otherwise provides for the appointment, or election, or abolition of the office, and vests in the legislature power to prescribe qualifications, compensation and duties, Mississippi Const. § 250 does not affect the legislature's power in prescribing qualifications for county superintendents of education. State ex rel. Patterson v Land , 231 M 529, 95 So.2d 764, sugg of error overr 231 M 574, 96 So.2d 828.

Where the judgment of the circuit court was not placed upon the discretionary exercise of power in the denial of the writ of quo warranto but was based upon the erroneous premise that § 9, Chapter 10 of the Laws of 1953 (this section [Code 1942, § 6271–09]), was unconstitutional, and the defendant, who was serving as county superintendent of public education, did not comply with substantially all of the requirements of the section, the supreme court, upon determining that the statute was constitutional, was under the duty to enforce the section and issue the writ, finding that the defendant had been exercising the functions of office without authority and removing him therefrom. State ex rel. Patterson v Land , 231 M 529, 95 So.2d 764, sugg of error overr 231 M 574, 96 So.2d 828.