State Ex Rel. Halvorson v. Anderson

Rosenberry, C. J. The court found that each of the re-lators is a duly licensed public school teacher, and prior to May 1, 1938, had continuously and successfully taught in said school forhnore than five years; that at the annual meeting of the school district in July, 1935, a resolution was duly passed requesting the school board not Lo employ married women as teachers. Similar resolutions were passed at other meetings. The school board, however, disregarded this resolution and continued to employ married women. In February, 1937, the school board passed a resolution to the effect that in the future married women would not be employed as teachers in the schools. Each of the relators went to see the school board with the request that she be employed as teacher for one more year. As a result of this solicitation a written contract was entered into on May 3, 1937, between *621 the school board and each of the relators, employing her as a teacher for the term of nine months, commencing on August 30, 1937; that such contract was in the usual form but the following express agreement was included: “It being understood and agreed that twenty days teaching shall constitute a month, and that at the end of the above-mentioned school year, no married woman teacher will be employed. This applies to [each of the relators] also when contract expires.’' The relators taught school during the school year commencing August 30, 1937, and ending in May, 1938. The trial court found that this agreement was knowingly made by the teachers upon a sufficient consideration and was an important part of the contract and had not this provision been made in said contract, the relators would not have been employed during said school year; that by the terms thereof the petitioner agreed that her services in said school would end at the close of the school year in May, 1938, and that she would not thereafter seek re-employment. On April 11, 1938, each of the relators served notice upon the defendant as follows: “Under the statutes of Wisconsin for 1938 I am a permanent-tenure teacher. I shall be ready and willing to resume my teaching duties when school opens next fall.” After receiving such notice the defendant school board notified each of the relators that she would not be re-employed because of inefficiency. Thereupon each of the relators demanded a hearing before the school board and such hearing was held. Voluminous evidence was received, and at the conclusion thereof, the board found, among other things, that each of the relators was inefficient. The trial court further found that the defendant school board did not at any time waive or change the provisions of the written contract of employment entered into on May 3, 1937, and at all times claimed and insisted that by reason of *622 such provision, the several relators were not entitled to reemployment and did nothing inconsistent with such position. As conclusions of law the trial court found that the several relators did not become permanently employed as provided in sec. 39.40, Stats., and did not acquire permanent tenure as therein provided for. That the defendant school board was justified in refusing re-employment to the several relators and that the several relators had no right to demand re-employment after entering into the contract of May 3, 1937. That in September, 1938, there was no clear legal duty on the part of the defendant school board to employ the several relators as teachers and denied a peremptory writ of mandamus. If the trial court was correct in its conclusion that the agreement entered into on May 3, 1937, amounted to a contract on the part of each of the relators, that her employment in the Dallas school would cease in May, 1938, and that she should not thereafter be re-employed, it disposes of all questions raised in this case. The trial court said: “The agreement in question is not aptly worded as it was undoubtedly drawn by a layman. However, I think its meaning is perfectly clear. By it the teacher agreed that at the conclusion of that contract her employment as teacher in the Dallas school should end and that she should not be reemployed. This agreement was knowingly made by the teacher and upon a sufficient consideration, and was an important part of the contract. It seems quite plain that without this agreement the contract would not have been made and these teachers would not have been employed during the school year beginning in August, 1937. These contracts were made before the teachers’ tenure law was enacted, and I think are not affected by it. It seems to me that it was competent for these teachers, as a condition of receiving contract of employment in 1937, to agree that their service as teachers in the Dallas school should end with the close of the school year in May, 1938.” *623 We concur in the view of the trial court. While it may be argued that the quoted clause inserted in the contract was no more than a declaration of intention on the part of the school board with reference to its actions in 1938, when consideration is given to the fact that since 1935 the district has been on record as being opposed to the employment of married teachers, that in one case at least re-employment was sought in order to save certain pension rights and that each of the relators understood that her employment was to terminate in 1938, this contention loses force. The teachers knew that the intention of the district as well as the school board with respect to the employment of married women had been expressed over a series of years. No declaration of intention was necessary to make them aware of that fact. Likewise the school board was not bound to re-employ the relators when the contract of May 3, 1937, was made. If it was not such a contract as the trial court held it to be it was a futile act. While it was not aptly phrased, and as the trial court says, was undoubtedly drawn by a layman, it served no other purpose than to record the understanding and agreement between £he school board and the relators that when the contract expired their relations with the district were terminated. The question raised and decided in State ex rel. Schmidtkunz v. Webb (1939), 230 Wis. 390, 391, 396, 284 N. W. 6, was one entirely different from the question raised in this case. In that case the contract contained the following clause: “Marriage during the term of this contract shall render same null and void.” The relator married during the year and instead of terminating the contract the board continued her employment and paid her her salary to the end of the year. The court said: “Had the board discharged the plaintiff at that time [the time of her marriage] pursuant to the plain provisions of the contract, we should have a very different question before us. The board disregarded any right that it had to discharge the *624 plaintiff and permitted her to teach for the remainder of the year.” In this case the board asserted its right under its contract and refused to continue the relators in their employment. While the trial court reviewed the evidence taken before the board upon the trial of charges of inefficiency as against the several relators, and we do not find it necessary to reconsider that part of the case, our failure to do so must not be construed as holding that such a review may be had in an action of mandamus. That matter will be left undetermined until it becomes necessary to a decision. It is to be noted that the statute, sec. 39.40 (3), says that the decision of the school board shall be final. By the Court. — Judgment affirmed.