State Ex Rel. Marsh v. Lum

Prentice, C. J. It is and was the duty of the defendant town treasurer, to honor the drafts drawn upon him by the town school committee in payment of legal obligations incurred by it in the maintenance of the public schools of the town. General Statutes, §§983, 986. The fundamental question in the case, therefore, is whether or not the drafts here involved, drawn by the committee to the order of two teachers and all other drafts similarly drawn for the like purpose, constitute obligations incumbent upon the town to meet. The drafts specifically referred to in the application for the writ were drawn for amounts agreed by the committee to be paid to the payees respectively as compensation for their services rendered as teachers. If these and other orders which may have been or may *203 hereafter be drawn to teachers in the town schools under similar circumstances, do not represent legal obligations of the town, it must be for either one of two reasons, to wit: (1) that the agreement made bj^ the committee to pay the increases in salary which they represent was an illegal and inoperative one for reasons other than constitutional; or (2) that such agreement was forbidden by Article- 24 of the Amendments of our State Constitution. In October, 1919, when the agreement referred to was made, the teachers were each under a contract with the committee to serve in their several capacities for the then school year at stated salaries. At that time the parties to the existing contracts, for reasons not hard to seek, in effect mutually agreed to rescind them and to substitute therefor others of similar purport, but calling for larger salary payments for the balance of the year. This it was perfectly competent — constitutional limitations aside — for them to do, and there was not wanting a consideration to render the new contracts binding and enforceable. The teachers surrendered their existing contract right to forthwith give notice of their purpose to terminate their several employments at the end of four weeks or a month from date, and forbore to exercise that right, while the committee avoided a threatened disaster resulting from resignations by teachers to accept employment elsewhere upon better terms, and the possible closing of schools as a consequence of such resignations. The teachers got a promise of more pay, and the school committee greater assurance that the town’s schools would remain open, or at least would not be experimentally manned. It is said that while there was forbearance on the part of the teachers in this matter, there was no promise to forbear and therefore no real consideration for the *204 promise of increased pay. But actual forbearance is evidence of an agreement to forbear, and in the absence of proof to the contrary is often held to be incompatible with any other condition. Waters v. White, 75 Conn. 88, 91, 52 Atl. 401; Breed v. Hillhouse, 7 Conn. 522, 527; Boyd v. Freize, 71 Mass. 552, 555. This latter is the situation here shown. The teachers of the town had presented a request for an increase of $300 for the current year. The committee had complied to the extent of promising an increase of $150 covering the balance of the school year. The teachers, to be sure, did not, as far as appears, express their satisfaction with or acceptance of the proffered new terms, or express their agreement not to accept calls elsewhere or resign. They simply didn’t do either, and continued in their work receiving salary at the new rate. In this way they expressed, as plainly as they otherwise could. have done, their acceptance of the proffered adjustment and their decision to forbear, at least for a season, the exercise of their contract privilege of terminating their employment upon the giving of a thirty days’ notice. They thus gave up something that was legally theirs, and the town has received the benefit of their surrender. “If a man by a promise induces the promisee or some other person on account of or for the benefit of the promisee, to do some act or part with some chattel, title, interest, privilege, or right, which the law regards as of some value, there is sufficient consideration for the promise.” Rice v. Almy, 32 Conn. 297, 304. The 24th Amendment of our State Constitution has been under careful consideration by this court as to its meaning and scope, and that subject has been removed from the domain of doubt. McGovern v. Mitchell, 78 Conn. 536, 63 Atl. 433; Sullivan v. Bridgeport, 81 Conn. 660, 71 Atl. 906. In the former case we held, to quote *205 the language of the syllabus, which well summarizes the opinion, that “the plain import and intent of this amendment was to prevent for the future the exercise of a power common to each of the corporate bodies named, by which they had been accustomed to pay or grant to particular public officers or employees an 'extra compensation,’ that is, money in addition to, or in excess of, the salary or compensation established by law or by contract; or, in other words, that the amendment was designed to prevent the payment of gratuities, whether in the form of a direct gift or of an equivalent increase of compensation in addition to that fixed by statute or contract.” In the latter case we said, speaking of the opinion in the former: “ It is there held that it is the purpose of the Article to take from the public bodies therein mentioned . . . the power to make gratuitous compensation to public officers and employees. . . ; and that it does not, either directly or by implication, take from them the power to regulate by legislation the public services and the compensation of public officers. They may, therefore, to the extent of their legislative power, enact laws or ordinances fixing the future compensation of such officers.” p. 665. It has thus been definitely and authoritatively determined that the prohibition of the Amendment exhausts itself in forbidding the payment or grant by the public bodies named therein of gratuities or extra compensation defined to be “compensation ... in addition to, in excess of, or larger than, the compensation prescribed by law or settled by contract,” and does not forbid the establishment in the regularly ordained manner of compensation for future services at a sum larger than that already established. McGovern v. Mitchell, 78 Conn. 536, 559, 63 Atl. 433. Applying these settled principles to the situation before us, it is clearly apparent that the action of the *206 town school committee, in making the substituted contracts for increased pay, was not within the prohibition of the Amendment. It in no way involved the payment of a larger sum than the original contracts provided for the teachers’ services prior to the date the increase took effect. It provided for increase of compensation for future service and not for the bestowment of a gratuity or the grant of extra compensation. The plaintiff’s resort to mandamus proceedings to compel the performance by the defendant of his legal duty was proper. State ex rel. Bulkeley v. Williams, 69 Conn. 131, 157, 35 Atl. 24, 421. There is error and the cause is remanded for further proceedings according to law. In this opinion the other judges concurred.