Baugh v. Board of Education of Marshall County

THOMAS, Justice. This is the second appeal in this case. Board of Education of Marshall County v. Baugh, 240 Ala. 391, 199 So. 822. The questions of pleading are, therefore, settled. We do not think it necessary to consider the several preliminary questions presented' in brief of appellee and will proceed to a consideration of the main issue. While the questions of fact were being tried the case of Holcombe v. County Board of Education of Marion County, 242 Ala. 20, 22, 4 So.2d 503, was on appeal. The decision rendered held that a written order approved and signed by all the members of the board directing the superintendent to send notices to certain named teachers that they would not be reemployed was a sufficient written memorial of the board’s action, even though it was not spread upon the minutes of said board in the form of a resolution. During the taking of the evidence, and hearing in the instant case, on March . 20th, 1941, the slips of paper were introduced in the record as Exhibits 31, 31-A, 31-B, 36, 38, 39, 40, 41 and 42. This evidence was not contained in the minutes of ’ said board of date of April 1st, April 29, ' 1940, nor February 28, 1941, the date of defendants’ answer. Over the objection of complainant, defendant sought to prove that these papers were determinations of- the respective local school board trustees duly communicated by such boards to the Superintendent of Education of Marshall County and that they were severally on file in' his office on April 1st, 1940, and that the county board decided not to reemploy the' complainants named in the several exhibits -' pursuant to the several suggestions and duly instructed him as superintendent to so notify each complainant. There was no error in admitting in evidence said exhibits. These original memoranda are transmitted to this court by due order of the trial court for inspection and are so considered. The defendants introduced in evidence over complainants’ objection and exception a copy of the minutes of the board of February 28, 1941, ordering that the minutes of April 1st, 1940, be amended so as to show that the board did on said last named date determine that none of .the. following named persons including the *524 complainants would be reemployed for the scholastic year 1940-1941. We have indicated, as the trial court held, that defendants had before them the several recommendations of said local trustees as indicated by the original memoranda on file and other papers and that the matter of giving notices to said teachers who were not to be reemployed was discussed by the county board and superintendent; that on the superintendent’s recommendation the board did authorize and direct the issuance of the notices which the superintendent issued and served upon said several and respective parties. The decree from which the appeal is taken further held that the minutes of April 1st, 1940, “appear on their face to be incomplete and susceptible to more than one interpretation,” and that the county board could and did on February 28, 1941, amend said minutes to show that said board gave its express authorization and direction to the superintendent of the several orders of nonreemployment and the notices so given to the respective parties (complainants here) by the superintendent were in compliance with the teacher’s tenure act. Code 1940, T. 52, § 351 et seq., § 360. The issue before the court on this appeal is the same as that presented on the first appeal, towit, did the county board through its records or other written memorials or authorized memoranda direct that said notices of non-reemployment be given to the complainants? Howell & Graves v. Curry, 242 Ala. 122, 5 So.2d 105, 108 contains analogy. It will be observed from the answer of the board to complainants’ bill that the names of the several teachers who were not reemployed and so notified were well understood by the board; that this was made known by the local boards to the superintendent and the several notices were sent and received. The transaction of date of April 1st, 1940, of ratification of the superintendent’s acts in the premises did not invalidate the authorized action of the several non-employments, as we have indicated. The decision in Holcombe v. County Board of Education of Marion County, 242 Ala. 20, 22, 4 So.2d 503, was broad enough to include the papers and memoranda which the board acted on and which were in and under its control. That is, the papers which the county board acted on and adjudged as its own on April 1st, 1940, were sufficient, as appears from the minutes of February 28, 1941. In Brown v. Board of Education of Blount County, 242 Ala. 154, 5 So.2d 629, after the decision in Board of. Education of Marshall County v. Baugh, supra, and Holcombe v. County Board of Education of Marion County, supra, it was declared that the teacher’s tenure act, Code 1940, T. 52, § 351 et seq., § 360, intended to secure to the teachers a continuing service for the succeeding year unless given written notice to the contrary under direction of the county board not later than the first day of May; that the written notice of termination required by statute involved the exercise of a wise discretion by the county board of education, not to be delegated to the county superintendent; that the county board speaks through its records or “written memorials” of its actions; and that in order to terminate the employment of a teacher, the written notice must be given according to the requirements of the statute; and that a determining question of fact is that of due notice vel non to complainants. Stating the facts of this record, the notices issued to the teachers that they would not be reemployed were by the county superintendent of education pursuant to the order of the county board of April 1st, 1940. This notice, unexplained, it is insisted, left the selection of such teachers to the superintendent; that the later resolution of the board approving the superintendent’s actions was not in exact accord with the action declared necessary on the first appeal. It is further insisted by appellants that a later resolution amending the original order to the effect that the board had designated the teachers to be so notified of non-employment, and that in so doing acted on the several memoranda (the originals of which are transmitted to this court), is not in accord with our decisions. We do not agree with this insistence of appellants, since said memoranda from the local boards were before the county board of education and were called to its attention by the county superintendent, and the board acted on such memoranda. The effect of the judgment of the trial court was to sustain the sufficiency of the notice given and authority for such action by the board through the superintendent of education acting for the general board. *525 The voluminous record has been considered. Under the rule that prevails, Code 1940, T. 13, § 66; Davis v. Davis, 241 Ala. 385,2 So.2d 780; Barley v. Wright, 233 Ala. 283, 171 So. 247; Caples v. Young, 206 Ala. 282, 89 So. 460, it would serve no useful purpose to discuss the testimony in detail. We are content, therefore, with the general statements and conclusions noted, and after a most careful study of the proof, are of opinion that the judgment of the trial court should be affirmed. It is so ordered. Affirmed. GARDNER, C. J., and BROWN and .LIVINGSTON, JJ., concur.