Smith v. School District No. 18

*108 MR. JUSTICE ADAIR delivered the opinion of the court. ' This is an appeal from a judgment. Charging that respondent had wrongfully prevented him from occupying the position as teacher in the Valier public school to which he had been reelected, appellant sued for loss of salary. The appellant Joseph R. Smith taught the sixth, seventh and eighth grades in the public school in the town of Valier, Montana, for the seventh consecutive year. For six of such years, he also instructed the school band. On April 12, 1939, after almost five years of uninterrupted service, appellant entered into a formal written contract with the Board of Trustees of the respondent, School District No. 18, of Pondera County, Montana, wherein is situate the public school of Valier. In this contract, appellant agreed “to teach in said school district for the period of 9 months, commencing on the 2nd day of September, 1939” at the salary of $1,305 payable $145 monthly. Pursuant to such contract appellant continued, as theretofore, to teach the sixth, seventh and eighth grades and to instruct the band in the public school in the town of Valier. Before the expiration of the 9-month period mentioned in the contract and prior to the first day of May, 1940, the board of trustees of the respondent district, by letter, notified appellant that he had been re-elected for the ensuing school year at the same salary. Pursuant to such letter, and without any formal contract, appellant continued to teach the upper grades and the band in the Valier public school for the school year of 1940-41. Sometime prior to April 28, 1941, J. A. Tidyman, chairman of the board of trustees of the respondent district, without appellant’s knowledge, talked with Mr. Arnst, chairman of the Fort Benton School Board, about placing appellant in a teaching position in the Fort Benton school for the ensuing year. Thereafter and on either the 28th or 30th of April, 1941, Mr. Tidyman in conversation with appellant orally informed appellant that the board of trustees of the respondent district had decided not to re-employ appellant. Respecting this conversa *109 tion, Mr. Tidyman testified: “I told him that the Board of Trustees had decided not to renew that year’s contract. I thought there was a vacant position that he could get at Fort Benton. I offered to do anything in my power to assist him in procuring it. I had already taken the matter up with Mr. Arnst, chairman of the Fort Benton school board.” The Teacher Tenure Act (sec. 1075, Revised Codes of Montana, 1935) provides: “After the election of any teacher or principal for the third consecutive year in any school district in the state, such teacher or principal so elected shall be deemed re-elected from year to year thereafter at the same salary unless the board of trustees shall by majority vote of its members on or before the first day of May give notice in writing to said teacher or principal that he has been re-elected or that his services will not be required for the ensuing year * * Of course, Mr. Tidyman’s conversation with appellant did not comply with the mandate of the above statute. No minutes nor records of any of the proceedings of the board of trustees were either offered or introduced in evidence herein and it is undisputed that the board never, at any time, gave appellant any notice in writing. Nothing came of the teaching position at Fort Benton about which Mr. Tidyman had talked although appellant interviewed the board of trustees at Fort Benton on May 12th and would have accepted the position there had it been available. The Fort Benton school board had the matter under consideration for a month, at the end of which time appellant was advised that there would be no vacancy to fill. The board of trustees of the respondent district had agreed to appropriate and contribute the sum of $150 toward the operating-expenses of the school band during the summer of 1941. Before delivering this money to the treasurer of the band and as a condition precedent Mr. Tidyman, chairman of the board, in July, 1941, sought to compel appellant to execute and deliver to him appellant’s written resignation. This appellant declined to do. Under date of August 13, 1941, being but a couple of weeks *110 before the beginning of the school term, M. A. Lund, superintendent of the respondent district wrote appellant: “Your assignment for the school year 1941-42 if you remain in the employ of School District No. 18 will be as -teacher in the Bullhead School.” Appellant declined to accept the assignment to teach the Bullhead School and promptly notified the board of trustees that he was “not qualified either by training or experience to teach an ungraded school in which there are lower grade pupils.” Appellant also demanded that he be continued in the position he had held in the respondent district in the past. The Bullhead school is about ten miles from the town of Yalier. It is the one and only rural school in the respondent district. When school resumed in the fall of 1941 there were but five pupils in the schoo]. At the time of the trial, the enrollment had reached a total of seven pupils of whom two were in the first grade, one in the second grade, one in the fifth grade, one in the sixth grade and two in the seventh grade. Appellant owned no automobile. He had no means of transportation between his home and the Bullhead school. There were no accommodations at such school for appellant’s family as the teacherage was but a one-room affair wholly inadequate and unsuitable to accommodate appellant’s family consisting of his wife, his mother, and his three minor children all dependent upon him for their support and all residing with him in the town of Valier. At no time during his teaching career had appellant taught any grades below the fifth. Appellant’s courses of study and training at the State Normal College had all been to train and equip him for an educator in the upper grades and his entire experience had been in and with the upper grades. At the Bullhead school there would be no band to instruct. Clearly under such circumstances neither the superintendent nor the board of trustees possessed any statutory right to assign appellant to a position for which he was not qualified. (In re Womer (Appeal of Osceola Borough School District), 337 Pa. 349, 11 Atl. (2d) 146.) Appellant was within his rights in de *111 dining the new offer so made him. (Williams v. School District No. 189, 104 Wash. 659, 177 Pac. 635; Jackson v. Independent School District of Steamboat Bock, 110 Iowa 313, 81 N. W. 596.) The letter of August 13, 1941, assigning appellant to teach the Bullhead school, came at such a late date that appellant was wholly unable to obtain another suitable teaching position for the school year which was then but about two weeks away. At the beginning of the school year on September 2, 1941, appellant presented himself for duty at the public school in Yalier. Another teacher had been employed to take appellant’s old position and appellant’s offer to resume his duties at such school was rejected. Again on September 26th and October 24th, appellant returned to the public school in Valier and offered his services as a teacher therein but his offers were rejected. Appellant made demand upon the respondent district for the payment of his monthly salary and demand being refused on November 22, 1941, he commenced this suit to recover from the respondent district his salary of $1,305 less such sums as he would earn between September 2, 1941, and the close of the school year in 1942. On January 19th, appellant obtained a position as teacher at Basin, Montana, at $120 per month and at the opening of the trial he voluntarily reduced his demand against respondent to $706.50, having credited on the demand such sums as he had earned subsequent to September 2, 1941, and such amounts as he contemplated he would receive for teaching at Basin. The respondent as defenses to the action, alleged: (1) That it had a right to assign appellant to teach the Bullhead ungraded country school because appellant was the holder of an elementary state teaching certificate which states that he is authorized to teach grades one to nine; (2) that had appellant been more diligent he could have obtained another teacher’s position in another district, and (3) that appellant waived the mandate of section 1075, Revised Codes, requiring that the board by a majority vote of its members shall ‘ on or before the first day of May give notice in writing to said teacher. ’ ’ We find no evidence of any lack of diligence on the part of *112 appellant in his efforts to obtain another teaching position. The record indicates that appellant did his utmost to find other employment. We likewise find no evidence of any conduct on the part of appellant that amounts to a waiver of any of the provisions of the Teacher Tenure Act. (See. 1075, Rev. Codes.) Irrespective of the wording of appellant’s elementary state teaching certificate, the evidence clearly shows that appellant had had no training nor experience in teaching any of the grades below the fifth; he so testified and the record clearly establishes that he was not qualified to teach the Bullhead school. In State v. Board of Education of City of Duluth, Minn. 1943, 7 N. W. (2d) 544, 561, the court said: “A holding that a teacher tenure position extended to and included the right to teach any subject, major or minor, for which he held a certificate, regardless of whether he was employed or assigned to teach such subject, and that such right was equal to that of another teacher specially qualified to teach a subject and employed for that reason might be a ‘consummation devoutly to be wished’ by the teaching profession, but certainly not by a board desiring to improve the educational standards of its schools. It would complicate rather than simplify the administration of the schools, and this to their definite disadvantage. The statutes referred to merely fix the qualifications for teaching ‘positions’ and do not make a teacher’s ‘qualifications’ and his ‘position’ coextensive. * * * One of the approved definitions of ‘position’ is ‘relative place, situation, or standing; specif., * * * official rank or status. ’ (Webster’s New International Dictionary, 2 Ed., 1938.) Common synonyms are: ‘Place, situation, billet, post, berth; spec, office, bed, incumbency, dignity, intendency * * * portfolio * * * professorship, * * * etc.’ (Allen, Synonyms and Antonyms.) Webster’s definition fits the Tenure Act well. * * * That teachers in the primary, intermediate, and grammar grades respectively occupy separate and distinct positions in the school system should be self-evident, notwithstanding all grades below high school are, for convenience, grouped into one elementary division. Teachers who are efficient kindergarten or primary teachers and hired for *113 that purpose and assigned to that work may generally be inefficient in the intermediate or grammar grades, where older pupils are taught, and vice versa. (See People ex rel. Callahan v. Board of Education, 174 N. Y. 169, 66 N. E. 674) ”. In State ex rel. Bass v. Vernon Parish School Board, La. App. 1940, 194 So. 74, 76, the court said: “To hold that the Tenure Act merely guaranteed employment in the teaching profession in the parish would mean, not only that a teacher could be reduced in salary at will by the school board, even from the highest to the lowest salaried position, but also that a teacher could by arbitrary action of the school board be changed from teaching a subject or subjects in which he had specialized for years to the teaching of some entirely unrelated subject or subjects in which he might not even be qualified; and his removal from office could thus be effected indirectly when it admittedly could not be effected directly.” In 1934, the board of trustees elected appellant to the position of teacher of the upper grades in the public school in the town of Valier. Appellant performed his duties as such teacher in the Valier public school and annually thereafter in 1935, 1936, 1937, 1938 and 1939 he was re-elected to this same position as teacher of the upper grades in the public school in Valier. The board of trustees was not required to thus re-elect appellant each year. At any time, on or before the first day of May in any year, the board could “by majority vote of its members * * * give notice in writing to said teacher * * * that his services will not be required for the ensuing year”; (sec. 1075, Rev. Codes) and such action on the part of the board would have effectively prevented the return and re-election of appellant for the ensuing year. When a board of trustees desires to retain for another year a teacher, who has already held a teaching position for the third consecutive year or more, three courses are open to it. These are: First, by resolution agreed to by a majority of the trustees at a meeting regular or special the employment may be authorized *114 and. a formal written contract in duplicate may be executed by the chairman and clerk of the board for the district and by the teacher as provided for in subdivision 2 of section 1015, Revised Codes of Montana. This is the course followed by the board, when, under date of April 12, 1939, it entered into the formal written contract with appellant for the period of nine months commencing on the 2nd day of September, 1939; Second, the board may, “by majority vote of its members on or before the first day of May give notice in writing to said teacher * * * that he has been re-elected” as provided for in section 1075, Revised Codes of Montana. This is the course followed by the board when it sent the letter to appellant prior to the first of May, 1940, notifying him of his re-election for the school year of 1940-41; Third, the re-election of the teacher who has taught for the third consecutive year or more may be accomplished simply by the non-action of. the board under section 1075, Revised Codes of Montana. In the event the board takes no action, i.e., when it fails to enter into a new written contract with the teacher under section 1015, Revised Codes, and when it fails, by majority vote of its members, to give notice in writing on or before the first day of May that the teacher “has been re-elected or that his services will not be required for the ensuing year,” under section 1075, then the law.steps in and supplies the necessary action by saying to all concerned that “such teacher '* * * shall be deemed reelected * * * at the same salary. ’ ’ This is precisely what occurred in the instant case and resulted in the retention of appellant in his old position for the school year commencing in the fall of 1941 and ending in the spring of 1942. After the election of appellant to the position of teacher of the upper grades in the public school of Yalier for the seventh consecutive year and the failure of the board of trustees to perform its statutory duty with respect to giving him a notice in writing, then did the Teacher Tenure Act (sec. 1075) cast its protecting mantle about appellant’s shoulders and prevent the board from evading its responsibility and prevent the district from evading its liability to appellant. *115 The purpose of enacting the Teacher Tenure Act (sec. 1075) is not merely to insure teaching employment but it is also to insure to teachers who have' held teaching positions for three or more consecutive years, security in the position, the grade or the status which they have thus attained. In the instant case the position which appellant had held teaching the upper grades in the Valier public school had been given to someone else. The new position offered appellant was a demotion. It would remove appellant from the town of Valier and place him ten miles out in the country. It would remove him from his old position as band instructor. It would remove him from his old position, rank, grade and status of a teacher of the upper grades in a town school and would reduce him to the status of a teacher in an ungraded country school teaching all grades from the primary up. To thus demote a teacher requires the same procedure as removal or dismissal. (State ex rel. Bass v. Vernon Parish School Board, supra.) While a regularly employed teacher may be discharged for a good and sufficient cause yet “the board has no power to * * * transfer a teacher from a higher to a lower grade. Assigning a teacher to a lower grade is a ‘removal,’ and just as much so as a dismissal would be.” (Voorhies, The Law of Public Schools, Chap. V, sec. 69, at page 160.) “It is a fundamental rule that in the construction of contracts the courts may look not only to the language employed, but to the subject-matter and the surrounding circumstances, and may avail themselves of the same light which the parties possessed when the contract was made.” (Merriam v. United States, 107 U. S. 437, 441, 2 S. Ct. 536, 540, 27 L. Ed. 531, 533.) ‘ ‘ To ascertain the intention, regard must be had to the nature of the instrument itself, the condition of the parties executing it, and the objects which they had in view. The words employed, if capable of more than one meaning, are to be given that meaning which it is apparent the parties intended them to have.” (1 Beach on Modern Law of Contracts, sec. 702.) *116 The last formal written contract entered into by appellant and the board became effective September 2, 1939, and expired nine months thereafter. This contract, during its entire existence, was interpreted by both contracting parties to authorize appellant to occupy the position of instructor of the band and teacher of the upper grades in the public school in the town of Yalier. By their course of conduct did the contracting parties establish a practical interpretation of the contract. Such interpretation is entitled to great, if not controlling, influence in ascertaining what appellant and the board understood by the terms thereof. “It is to be assumed that parties to a contract know best what was meant by its terms and are the least likely to be mistaken as to its intention; that each party is alert to protect his own interests and to insist on his rights; and that ivhatever is done by the parties during the period of performance of the contract is done under its terms as they understood and intended it should be. Parties are far less likely to have been mistaken as to the meaning of their contract during the period when they are in harmony and practical interpretation reflects that meaning than when subsequent differences have impelled them to resort to law and one of them then seeks an interpretation at variance with their practical interpretation of its provisions.” (12 Am. Jur. sec. 249, p. 789; Cook-Reynolds Co. v. Beyer, 107 Mont. 1, 79 Pac. (2d) 658.) The record wholly fails to show any meeting of the minds at any time on the proposition of teaching the Bullhead school. The expired contract was never treated by either the appellant or the board as being a contract to teach the Bullhead school. So long as such contract remained alive, appellant was at no time requested nor required thereunder to teach the Bullhead school. When the contract expired and the law stepped in and said that appellant “shall be deemed re-elected * * * at the same salary ’ ’ it clearly stated and meant ‘ re-elected. ’ ’ Appellant certainly is not to be “deemed re-elected” to a position in the Bullhead school where he had never taught; where he never desired to teach and where he was not qualified to teach. *117 The re-eleetion contemplated by the statute is a re-election to the position to which appellant had already been seven times previously elected. The re-election intended by the legislature is one which results from the retention of the teacher in that class, grade or status to which such teacher so re-elected belongs. The teacher is elected to his own position, i. e., to a position previously held by him. Thus does the word “re-elected” used in section 1075, Revised Codes, mean that when a teacher is elected to or retained in a position which he already occupies he is said to be “re-elected” to such position. (Hogsett v. Beverly Sills School District, 11 Cal. App. (2d) 328, 53 Pac. (2d) 1009.) By the non-action of the board of trustees was the appellant, under the statute, “deemed re-elected” to the position he previously held. From occupying and serving in this position was appellant wrongfully prevented by, respondent and for the resulting damage the respondent is liable. It was therefore error for the trial court to render judgment for respondent. Such judgment is reversed with directions to enter judgment for appellant for $706.50, interest and costs. Associate Justices Erickson and Anderson concur.