Richards v. District School Board

Mr. Justice Harris delivered the opinion of the court. In the final analysis the decision of this controversy depends upon whether the school board possesses the right to enforce a rule which provides that the marriage of a woman teacher automatically terminates her “service with the district.” The question presented for determination necessarily involves a consideration of certain statutes, and for that reason it is proper first to direct attention to such legislative acts as may be applicable. In 1913 the legislature passed two measures, which became effective simultaneously on June 3, 1913. One act is known as Chapter 37 of the Laws of 1913, and the other is referred to as Chapter 172 of the Laws of 1913. The provisions of Chapter 37, so far as they may be of interest here, read thus: “Section 1. The board of directors of every school district in this state now having or which at any time hereafter shall have a population of 20,000 or more persons shall have the power and authority to appoint and remove, hire and discharge all teachers, officers, agents and employees as it may deem necessary, and to fix their compensation. * # “Sec. 3. The teachers employed in any such district or districts, during their first two years of service shall be classed as probationary teachers. * * “Sec. 4. Teachers who have been employed in the schools in any such district or districts as regularly appointed teachers for not less than two successive — 633 — annual terms shall by the board of directors be placed upon the list of permanently employed teachers. ‘ ‘ Sec. 5. Teachers so placed upon such list shall not be subject to annual appointment, but shall continue to serve until dismissed or discontinued in the service by the board in the manner herein provided, subject to the rules of the board concerning suspensions, but such rules shall be reasonable and for the good of such schools. * * “Sec. 6. Before being dismissed any teacher on the permanent list shall receive written notice, stating the reason for the proposed dismissal, together with a copy of any charges or complaints which may be filed against him or her, and upon written request filed with the clerk the teacher shall be entitled to and given a hearing before the board within ten days after said notice, with full benefit of witnesses and subpoenas issued in blank by and over the hand of the clerk therefor and the right to be represented by counsel. Of any such hearing such teacher and each member of the board shall have due notice not less than three days before the date set for the hearing, and such hearing may be continued from time to time on account of sickness or absence of material witnesses. * * ‘ ‘ Sec. 8. All complaints and criticisms made against any teacher on such list shall be in writing and signed by the person preferring the same and filed with the clerk of such board, and the same may be inspected at any time during office hours by such teacher or any other person. * # “See. 10. All teachers who shall have been employed in such district or districts two or more years prior to the first day of July, 1913, shall be eligible to re-election as permanent teachers, and all such teachers who shall be re-elected for employment by the board for the school year beginning in September, 1913, shall be permanent teachers under the provisions of this act. ‘ ‘ Sec. 11. All acts and parts of acts in conflict herewith are hereby repealed. Provided, however, tha,t — 634 — all general laws of this state relating to public schools shall be applicable to districts under this act except in so far as the same may be in conflict with the provisions hereof.” Chapter 172 in detail enumerates the duties and powers of district school boards, and among “the general duties of the district school boards of the State of Oregon” it is prescribed by Section 1, subdivision 22, that: “The board shall dismiss teachers only for good cause shown, and in case the board shall pass an order to dismiss, the material reason therefor shall be spread upon the record by the district clerk.” The contention of the defendants proceeds upon the theory that Section 1 of Chapter 37 confers upon the board the unrestricted power to discharge teachers “as it may deem necessary,” while the argument of plaintiff is founded upon the claim that Section 1 must be read in connection with all the provisions of that chapter, as well as ‘ ‘ all general laws of this state relating to public schools,” and that, when thus read, it will be ascertained that the power of the board to dismiss is limited to such causes as may be good or reasonable. 1. No attempt is made to decide whether the board is empowered to discontinue a position, and on that account terminate the service of a teacher; but, the discussion will be confined to a consideration of the single question presented by the facts, because here the plaintiff was dismissed by a rule which was designed to operate automatically the moment the plaintiff married. No formal charge was filed; no written notice was given; no copy of a complaint was received by plaintiff; and the position was filled by the appointment of another teacher. If Section 1 of — 635 — Chapter 37 stood alone, there would be ample reason to support the contention that the power to dismiss is unrestricted; but it does not stand by itself. The chapter provides for permanent tenures for teachers, clothes the board with power to dismiss teachers, and prescribes a procedure which must be followed when the board attempts to exercise its power of dismissal. When a teacher is “placed upon the list of permanently employed teachers,” that teacher by force of the law shall continue to serve until dismissed in the manner provided for by Chapter 37 and “the manner herein provided” contemplates that there shall be a complaint, which must be in writing and filed with the clerk of the board, the teacher shall be given a written notice, stating the reason for the proposed dismissal, together with a copy of the complaint which has been filed, and if the teacher files a written request with the clerk, then the board must give the teacher a hearing within 10 days. It is true that the power to dismiss exists, but the power cannot be exercised unless the board observes the procedure pointed out by the very statute which confers the right to dismiss. It is plain that the statute contemplates that the complaint or criticism or charge shall present some good cause or some reasonable cause for dismissal. If the board can dismiss for any cause, whether it be reasonable, capricious or whimsical, then a hearing would be an idle ceremony. Requiring a written complaint, making notice of the charge necessary, and providing for a hearing, all imply at least that the charge made and to be heard shall afford a reasonable cause for dismissal before the board can discharge a teacher, and the implication is emphasized when it is remembered that the main purpose of Chap — 636 — ter 37 is to provide permanent tenures for teachers: Guden v. Dike, 71 App. Div. 422 (75 N. Y. Supp. 794). The conclusion that the dismissal must be for some reasonable cause is still ■ further strengthened by the terms of Section 5, which declares that teachers upon the permanent list shall continue to serve “until dismissed or discontinued in the service by the board in the manner herein provided, subject -to the rules of the board concerning suspensions, but such rules shall be reasonable and for the good of such schools.” The meaning of the term ‘ ‘ suspensions ’ ’ may be doubtful. It may apply only to cases of temporary forced withdrawals, as where a teacher is temporarily relieved from service, or it may have a more comprehensive meaning and include, not only temporary releases, but also permanent dismissals. Whether the term be accorded the larger or the narrower meaning, the rules concerning such ‘ ‘ suspensions ’ ’ must be reasonable and for the good of the schools. If the rules mentioned in Section 5 include rules concerning dismissals, then we have the positive mandate of the law that such rules shall be reasonable; and, if the language of Section 5 is referable only to a temporary discontinuance of service, then the implication that the graver and more important act of dismissal must be founded upon some reasonable cause is made more manifest. 2. There is yet another statute which accentuates the conclusion that a teacher on the permanent list can only be discharged for some good or reasonable cause. Section 11 of Chapter 37 recites that: “All general laws of this state relating to public schools shall be applicable to districts under this act except in so far as the same may be in conflict with the provisions hereof.” — 637 — Subdivision 22 of Section 1, Chapter 172, Laws of 1913, is a general law relating to public schools, and by the terms of that law "the board shall dismiss teachers only for good cause shown.” Assuming that subdivision 22 of Section 1 does not apply to the instant case, yet the general law affords protection, against unreasonable charges, to teachers who are not within the classes intended to be favored by Chapter 37, and the fact that both Chapters 37 and 172 were enacted by the same lawmakers only fortifies the view that Chapter 37 limits the right of the hoard to dismiss to the cases where reasonable cause is shown, and that the limitation attaches to the power to dismiss, either because of the express language found in Section 5, or if that section be given the narrower meaning, then the language of the act, when considered as a whole, gives expression to the limitation by necessary implication. If the right to dismiss cannot be exercised unless a good or reasonable cause is shown, it necessarily follows that the board is powerless to discharge for a cause which is not reasonable. Marriage either does or does not furnish a reasonable caus'e. If. it is not a reasonable cause, then the board was utterly powerless to dismiss, because their authority is limited to the cases within the purview of the státute, and the law contemplates dismissal for reasonable cause only: People ex rel. Murphy v. Maxwell, 177 N. Y. 494 (69 N. E. 1092); People ex rel. v. Board of Education, 82 Misc. Rep. 684 (144 N. Y. Supp. 87); Jameson v. Board of Education, 74 W. Va. 389 (81 S. E. 1126); Barthel v. Board of Education, 153 Cal. 376 (95 Pac. 892); Fairchild v. Board of Education, 107 Cal. 92 (40 Pac. 26); Kennedy v. Board of Education, 82 Cal. 483 (22 Pac. 1042); Thompson v. Gibbs, 97 Tenn. 489 (37 S. W. 277, 34 L. R. A. 548). If the act of marriage is alone a reasonable cause, then the — 638 — attempted dismissal was ineffective because no written complaint was filed and the plaintiff was not furnished with a written notice, stating the reason for the proposed dismissal, and she did not receive a copy of any charge. The attempted dismissal was void in any event. If marriage is not a reasonable cause, the dismissal was ineffective, because the board was without any power to discharge for an unreasonable cause; if marriage is a good cause, the summary act of the board was of no effect because the power to dismiss was not exercised in the manner provided by law. 3. It is argued, however, that the notice received by plaintiff and signed by her on or about May 19, 1913, constituted á contract which bound the teacher to abide by the rule concerning marriage. The writing purports to cover the “ensuing school year,” which commenced on September 15, 1913. No contract was signed upon the expiration of the “ensuing school year,” and, in the absence of Chapter 37, a continuance of service might be presumed to be governed by the terms of the contract made in 1913. The writing, however, purports to cover the “ensuing school year,” which commenced on September 15, 1913, and even though it be assumed that her service during “the ensuing school year” was governed exclusively by the terms of the contract made in 1913, unmodified by the provisions of Chapter 37, which became a governing law on June 3, 1913, that assumption cannot be continued and made applicable to her service on January 4, 1915, because at that time the “ensuing school year” had expired and the plaintiff occupied the position of teacher by virtue of the express terms of a statute. The relation had been created by and existed because of a law which had been enacted for that purpose. — 639 — Conceding that the contract signed in May, 1913, was valid when signed, still a stipulation making marriage a cause for peremptory dismissal would not he binding where the contract was made after June 3, 1913, when Chapter 37 became a law. The board cannot dismiss at all for an unreasonable cause, and can dismiss for a reasonable cause only in the manner provided by Chapter 37. Keeping in mind the purpose for which the statute was enacted, the board cannot, by contract, enlarge a power which is limited and restricted by the very law that creates the power. The board cannot do indirectly that which it is prohibited from doing directly. An apt illustration of this rule appears in Thompson v. Gibbs, 97 Tenn. 489 (37 S. W. 277, 34 L. R. A. 548). The school authorities cannot “accomplish by indirection that upon which the statute had placed its ban”: Fairchild v. Board of Education, 107 Cal. 92 (40 Pac. 26). See, also, People ex rel. v. Board of Education, 82 Misc. Rep. 684 (144 N. Y. Supp. 87, 94). The views herein expressed might be sufficient to dispose of the instant case, but we prefer to proceed with the inquiry and determine whether the single fact of marriage can, in advance and alone, be said to be a reasonable cause for dismissal, keeping in mind all the while that the purpose of Chapter 37 is to provide permanent tenures for teachers. Efficiency and competency of teachers and the welfare of the schools are of course consummations “devoutly to be wished.” If a teacher becomes inefficient or fails to perform a duty, or does some act which of itself impairs usefulness, then a good or reasonable cause for dismissal would exist. The act of marriage, however, does not, of itself, furnish a reasonable cause. That the marriage status does not necessarily impair the competency of all — 640 — women teachers is conceded by the school authorities when they employ married women, as they are even now doing, to teach in the schools of this district. The clerk of the board admitted that in some instances a woman becomes a better teacher after marriage than she was before. The reason advanced for the rule adopted by the board is that after marriage a woman may devote her time and attention to her home rather than to her school work. It would be just as reasonable to adopt a rule that if a woman teacher joined a church it would work an automatic dismissal from the schools on an imagined assumption that the church might engross her time, thought, and attention to the detriment of the schools; but such a regulation as the one supposed would not even have the semblance of reason. It must be conceded that quite a different case is presented where the act ruled against is inherently wrong. The act to which the instant,rule relates does not involve a single element of wrong, but, on the contrary, marriage is not only protectéd by both the written and unwritten law, but it is also fostered by a sound public policy. It is impossible to know in advance whether the efficiency of' any person will become impaired because of marriage, and a rule which assumes that all persons do become less competent because of marriage is unreasonable because such a regulation is purely arbitrary. If a teacher is just as competent and efficient after marriage, a dismissal because of marriage would be capricious. If a teacher is neglectful, incompetent and inefficient, she ought to be discharged whether she is married or whether she is single. Instructive discussions of the principles involved herein may be found in State ex rel. v. Common Council, 53 Minn. 228 (55 N. W. 118, 39 Am. St. Rep. 595); McCully v. State, 102 Tenn. 509 (53 S. W. 134, — 641 — 46 L. R. A. 567); People ex rel. v. Mayor, 19 Hun (N. Y.), 443; People ex rel. v. Thompson, 94 N. Y. 451; Guden v. Dike, 71 App. Div. 422 (75 N. Y. Supp. 794) ; Board of Street Commrs. v. Williams, 96 Md. 232 (53 Atl. 923). See, also, Biggs v. McBride, 17 Or. 640 (21 Pac. 878, 5 L. R. A. 115). 5. Since the mere fact of marriage is not alone sufficient to warrant the discharge of a teacher, mandamus is available as a remedy: People ex rel. v. Board of Education, 82 Misc. Rep. 684 (144 N Y. Supp. 87); Id., 160 App. Div. 557 (145 N. Y. Supp. 853); Kennedy v. Board of Education, 82 Oal. 483 (22 Pac. 1042); State ex rel. v. Board of Education, 18 N. M. 183 (135 Pac. 96, 49 L. R. A. (N. S.) 62). Some complaint is made of the form of denial appearing in the reply. While the form is not ideal, yet the denial in the instant case is not like the pleading in Kabat v. Moore, 48 Or. 195 (85 Pac. 506), bnt bears more of a resemblance to the pleading which was approved in Harrison v. Birrell, 58 Or. 410 (115 Pac. 141). The judgment of the Circuit Court was correct, and it is affirmed. Aepirmed.