Faul v. Superintendent of Education

367 So. 2d 1267
CourtLouisiana Court of Appeal
DecidedFebruary 5, 1979
Docket6828
StatusPublished
Cited by2 cases

This text of 367 So. 2d 1267 (Faul v. Superintendent of Education) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Faul v. Superintendent of Education, 367 So. 2d 1267 (La. Ct. App. 1979).

Opinion

367 So.2d 1267 (1979)

Mrs. Leroy FAUL et al., Plaintiffs-Appellees,
v.
SUPERINTENDENT OF EDUCATION, Louis F. Gaudet and the School Board of Jefferson Davis Parish, Defendants-Appellants.

No. 6828.

Court of Appeal of Louisiana, Third Circuit.

February 5, 1979.

*1269 Rankin & Yeldell by Stephen J. Katz, Bastrop, for defendants-appellants.

Tate & Tate by Paul C. Tate, Mamou, for plaintiffs-appellees.

Before CULPEPPER, GUIDRY and SWIFT, JJ.

GUIDRY, Judge.

This appeal questions the correctness of a judgment making peremptory an alternative writ of mandamus which compels certification by the Jefferson Davis Parish Superintendent of Education, Louis F. Gaudet, of petitions submitted to him requesting the institution of a French language program in certain schools within that parish pursuant to LSA-R.S. 17:273.[1]

*1270 On July 6, 1978 and July 20, 1978, Mrs. Faul presented petitions to the Jefferson Davis Parish School Board, signed by approximately seven hundred heads of households, requesting the instruction of the French language at Welsh Elementary School, Ward Elementary School, Hathaway High School, Lacassine High School, Lake Arthur Elementary School and Fenton High School. Superintendent Gaudet wrote a letter to the Jefferson Davis Parish School Board in which he stated that the petitions did not contain the requisite number of signatures to mandate institution of the language program. Mrs. Faul brought suit seeking a writ of mandamus to compel Superintendent Gaudet to certify the petitions in the manner set forth in LSA-17:273.[2]

Robert F. Prather, a member of the Jefferson Davis Parish School Board, intervened, alleging that LSA-R.S. 17:273 was unconstitutional.

After a hearing, the trial court concluded that LSA-R.S. 17:273 was constitutional and rendered judgment making peremptory the alternative writ of mandamus compelling Superintendent Gaudet to perform the following acts:

". . . to determine as to each school the number of households of students attending the school and certify the total number of names on the petition or petitions presented to the school board from each school, indicating the number of signatures certified as valid.
You are further ordered to keep a record of each signature not counted as valid, together with a notation of your reasons for not counting it as valid.
You are further ordered to present the certified petition to the Jefferson Davis Parish School Board . . ."

Intervenor Robert Prather and Superintendent Gaudet have appealed this judgment, urging the following assignments of error:

1. Plaintiff-Appellee does not have a right of action under LSA-R.S. 17:273 as she is not the head of a household.

2. Mandamus should not lie in this case as the acts sought to be compelled are not purely ministerial in nature.

3. LSA-R.S. 17:273 is unconstitutional.

4. LSA-R.S. 17:273 is inoperable because of the lack of proper funding provisions.

I. DID MRS. FAUL HAVE STANDING TO BRING SUIT UNDER LSA-R.S. 17:273?

LSA-C.C.P. Article 681 provides:

"Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts."

Appellants urge that since LSA-R.S. 17:273 permits only the head of a household to sign a petition seeking to institute a second language program in the parish public schools, Mrs. Faul (who is not the head of her household) does not have a right of action under the statute to have the petitions certified. We disagree.

In Melancon v. Police Jury of Lafayette, 301 So.2d 715 (La.App. 3rd Cir. 1974) this court was faced with the problem of determining when a citizen has standing to seek a writ of mandamus to compel action on the part of a public official. Therein we stated:

"First, we must determine whether plaintiff has alleged a special interest in the ruling of the Planning Commission such that he had a right to bring this suit. A citizen and a taxpayer cannot seek mandamus to compel the performance of a duty by a public board, officer or commission, unless it is first established that he possesses a special interest in having the law enforced, which interest sets plaintiff apart from the general public as a whole. Bussie v. Long, 286 So.2d 689 (La.App. 1st Cir. 1973), writ refused 288 So.2d 354 (La.1974)." at page 717.

*1271 Although under the statute it is only the head of a household who may sign a petition seeking to institute a second language program, it is nevertheless feasible that one who would not qualify as the head of a household could have a special and peculiar interest in having such a program instituted. The record reveals that Mrs. Faul has three children attending the public schools of Jefferson Davis Parish. They attend Welsh Elementary School, one of the schools represented by the petitions in question. She would like to have her children participate in a second language program. However, Superintendent Gaudet contends that the number of signatures on the submitted petitions is inadequate to justify instituting the program, and Mrs. Faul's children have been thereby precluded from participating in such a program. As well, the record reveals that Mrs. Faul has been actively promoting interest in the community for this language program, and has been instrumental in getting signatures on these petitions. We find plaintiff's interest in this matter to be actual, direct and tangible, and therefore that she has standing to bring the instant suit.

II. ARE THE ACTS SOUGHT TO BE COMPELLED PURELY MINISTERIAL IN NATURE?

Appellants contend that the writ of mandamus issued in this case seeks to compel Superintendent Gaudet to perform acts which are within his discretion to perform. As a mandamus will not lie to compel a public official to perform a discretionary act, it is argued that the issuance of the writ in this case was improper.

LSA-C.C.P. Article 3863 provides:

"A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law, or to a former officer or his heirs to compel the delivery of the papers and effects of the office to his successor."

Appellants urge that in order for Superintendent Gaudet to certify whether the number of signatures on the petitions meets the statutorial requirements, it is necessary that he determine which students are attending each of the affected schools and who is the head of each household represented on the petitions. It is argued that making these determinations involves the use of discretion, thereby placing compliance with the statute beyond the realm of a ministerial duty. We find that adherence to LSA-R.S. 17:273 is not a matter of discretion on Superintendent Gaudet's part. The statute provides in part:

". . . (the petition) SHALL contain the signatures of at least twenty-five percent of the heads of households of students attending a particular school within the jurisdiction of the parish or city school board. The superintendent of the parish or city schools SHALL determine the required number of signatures needed for each school and SHALL certify whether or not a petition contains the necessary number of signatures." (emphasis added)

Superintendent Gaudet's duty is set forth in unmistakable terms by the statute.

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367 So. 2d 1267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faul-v-superintendent-of-education-lactapp-1979.