Appeal of the Delano Land Co.

Mr. Justice Tkunkey delivered the opinion of the court, [353] The school district of Mahanoy township contains over twenty-five square miles of territory, fifteen schools widely scattered, fourteen hundred pupils and twenty-five teachers. Three teachers are employed in one of the schools, two in each of nine of the schools, and one in each of the remaining four. Where more than one teacher is employed one is called principal and the others assistants; much higher salary is paid to each of the principals than to the assistants. John C. Noonan was elected principal of the district by acclamation on June lfith 1882. It appears in the minutes of the board of directors and in the testimony of the secretary, that Noonan was instructed to furnish all the material for the repairing, and accept the bills and present the same to the board, to have a partition put in Bowman’s school, to procure and furnish all cards and certificates for examination of pupils, examination to take place every three months, and report progress by cards, to see that sufficient fuel is furnished, to report the loss of time of each teacher for each month, and to perforin duties besides those set forth in the written contract. The answer avers that his duties are “ to see that the teachers are in their places; to see that the schools are opened as required by law; to see that the pupils are properly classified, and the schools graded, and to teach in such schools as may be temporarily without teachers, and, by such directions, suggestions and illustrations, to the other teachers, to establish' and maintain a uniform mode of teaching in the said schools.” Among the powers and duties of the directors, prescribed by statute, are, the supplying the school houses with proper conveniences and fuel; the exercise of general supervision of the schools, visiting them at least once every month, and causing the result of the. visit to be entered on the minutes of the board ; and to establish schools of different grades and determine into -which school each pupil shall be admitted. And it is the duty of the county superintendent to visit, as often as practicable, the several schools, “ to give such directions in the art of teaching and the method thereof, in each school, as lo him, together with the directors and controllers, shall be deemed expedient and necessary ; so that each school shall be equal to the grade for which it was established, and that there may be, as far as practicable, uniformity in the course of studies in the schools of the several grades respectively.” Thus has the law-provided for nearly all the duties that Noonan is employed to perform. Prior to the contract with Noonan, the directors employed “ a district superintendent,” but in 1882 they changed the name to “ principal of the schools,” because they thought they were not justified in electing a superintendent, and were justified in [354] electing a principal with pretty much the same duties. No exception can be taken to the remark of the learned judge of the common pleas, namely, that in a matter of this kind we deal with things, not names; that a local superintendent or principal for a district may render valuable aid in making the school system efficient and progressive; and that no good could be expected if the place be filled by au incompetent favorite of the board, but if the official be a person of ability, fitness and character, great benefit may be derived. However valuable such an office might be, if the statute does not authorize it a board of directors cannot create it. All agree “ that the law does not give to any district the right, in distinct terms, of appointing superintendents, except in cities and boroughs of over five thousand inhabitants.” Nut the appellees claim that under the large discretion entrusted to the directors they may appoint such officials to act under the county superintendent and directors, and that such appointments have been uniformly recognized by' the school department of the Commonwealth. The authority for this claim is section 334 of the School Laws and Decisions. Power is not vested in the superintendent of public instruction to appoint officers not provided for by law, or to legalize their appointment by others, and he has not attempted such usurpation. Section 335 of the Decisions show that no person, not a director, has been recognized as capable of performing the duty of district superintendent. It is said that it is often impracticable for directors to perform the duty of visitation according to law; that the law wisely provides that they may perform it by one of their number; that they have power to pay the secretary for “ other acts and duties ” pertaining to his office; and that“ all that is necessary, therefore, in districts advanced enough for this most efficient agency, is to assign the required duties to the secretary, with a reasonable compensation for the service, and the district superintendency is at once in legal existence and operation.” This section is referred to, not for unqualified approval, but as evidencing the absence of recognition of the appointment by directors of a person, not one of their number, to act as a dista-ict superintendent. The law names certain things to be done by the secretary, and adds that he shall “ do and perform all other acts and duties pei’taining to the office of secretaiy of the board, and for his services shall l'eceive such compensation as the board may direct.” It also declares that the directors ££ shall, by one or more of their number, visit every school in the district at least once a month.” "VVlien the secretary is assigned to perform that duty he visits as a director, and to pay him for such service out of the school fund is as illegal as it would be to pay any other director for like service, when he is directed [355] by the board to do it for them. lie shall be paid for services pertaining to Ills office of secretary; not for performance of dnties common to all the directors. The twisted view of the statute which seemed to give legal existence to a district superintendency, when filled by the secretary, with right to compensation for the service, has borne natural fruit in the appointment of Mr’. Noonan, not a director, and voting him a salary for his services. Doubtless tiie directors believed it for the interest of the district to employ Noonan to perform many of their own duties, and some of the dnties of the county superintendent, in relation to the fifteen schools widely scattered over a large township. The grading of these schools is necessarily limited ; only one admits of three grades. All are supplied with teachers, and Noonan is not to teach, except when a school is temporarily without a teacher. The directors honestly arranged to supervise, grade and visit the schools by proxy. Put their good faith does not stand as authority for employing a superintendent for the district. The provisions of the law’ may be inadequate to the needs of the district because the county superintendent has too much to do, and the directors are indisposed to do all that is required of them. If so, the power that made the law alone can remedy its defects. Since the beginning of the system of common schools, from time to time, changes have been made to promote its advancement to a high standard. The end of its improvement has not been reached, and proposed supplementary changes and provisions will he enacted whenever the legislature shall be convinced of their utility. In towns and densely populated districts graded schools are, or ought to be, established and a principal employed for each series. The duties of the principal teacher, though more extensive, are as easily comprehended as the duties of the principal in a school in the district of Mahanoy township, where an assistant is employed. If the town he so large as to embrace more than one series of graded schools, each principal has charge of his own. No provision has been made for the appointment of a district superintendent in townships, or in boroughs or cities having less than five thousand inhabitants. That office is unlike a principal teacher, for it extends over all the schools of the district, whether its territory he large and sparsely settled, or small and densely populated. The power to establish graded schools includes the power to employ principal and assistant teachers. Expressly granting the right to the school directors in cities and boroughs having over five thousand inhabitants to elect superintendents, forbids inference that the directors in other districts have such right. Noonan’s employ356 merit is much like that referred to in sections 334, 335 and 336 of decisions of the state superintendent, materially differing from a city or borough superintendent, and is unauthorized by statute. It does not follow that his employment was lawful, from the fact that his duties are not the same in all respects as those of a city or borough superintendent. This cause having been argued by counsel, upon consideration, the decree is reversed, and now it is adjudged and decreed : 1. That the contract between the school district of Mahanoy township and John O. Noonan, as admitted in the answer, was made by the directors of said district without authority of law, and is void. 2. That the directors of the said district, defendants, and their successors in office, be and are enjoined from issuing or causing to be issued, any order for payment of salary to said John O. .Noonan for his services in pursuance of, or under, said contract; and that the treasurer of the said district defendant and his successor in office, bo and is enjoined from paying any such order that may hereafter be presented. 3. That the decree of the court below, except as set forth in the hereinbefore first and second paragraphs, shall stand and remain in force. 4. That the appellees pay the costs. 5. The record is remitted for enforcement of this decree. The opinion of the court in Conners’ et al. Appeal was delivered May 7th 1883.