Crane v. School District No. 14.

JOHNS, J. This action is founded on a contract alleged to have been executed under Section 4055, L. O. L., which provides: “That a district school board of any legally organized district shall, when authorized by a majority vote of the legal voters present at any legally called school meeting, furnish transportation to and from school to — 651 — all pupils living more than two miles from the school building.” 1, 2. There is no merit in the motion to strike out or make more definite paragraph II of the complaint. The defendant is the school district with which the alleged contract is made, and officially represents its legal voters. From necessity it would have full and complete knowledge of the holding of any meeting for that purpose, and the time when it was held. The plaintiff could not impart any knowledge which the defendant did not have and such objection was waived by pleading over. 3, 4. We also think that the complaint states a cause of action. It alleges that plaintiff was employed “to transport the pupils of defendant district to and from the school of said' district for a term of nine school months beginning on the sixteenth day of September, 1918.” While there is no specific averment that the employment is continuous from that date, it is a matter of common knowledge that nine months constitute the current school year in this state and that a longer or shorter period is an exception. As a general rule, schools throughout the state commence on the second or third Monday of September and continue for a period of nine months, known as the current school year. 5. The case was tried without a jury, and the court made findings of fact that the contract was authorized by the legal voters, and was executed as alleged in the complaint. Although it is not alleged that the legal voters authorized its execution for any specific length of time, yet in the circumstances the current year of nine months would be a reasonable time, and must have been the period contemplated by the legal voters of the district. — 652 — 6, 7. The defendant vigorously contends that its further and separate answer constitutes a good defense, upon the theory that: “Where from the nature of the contract it is evident that the parties contracted on the basis of the continued existence of the person or thing to which it relates, the subsequent perishing of the person or thing will excuse performance. ‘ ‘ One of the conditions implied in a contract is that the promisor shall not be compelled to perform if performance is rendered impossible by an act of law.” These legal principles are sustained by the authorities cited, and are the law. The complaint is founded upon an express, unqualified contract. The defendant contends that through the order of the county health officer its public school was closed by operation of law, and that by reason thereof the contract was ipso facto suspended for a period of four months. Whatever may have been his power, there is nothing, in the order of the surgeon-general of October 8, 1918, authorizing or directing that all public meetings should be discontinued, or that schools or places of public entertainment should be closed. Nothing is said about closing schools. There is no reference to them whatever. 8. The demurrer admits that all of the allegations of the further and separate answer are true; hence, we must assume that there was an epidemic of influenza in Tillamook County between October 1,1918, and February 10, 1919; that Robert E. L. Holt, acting state health officer, issued to R. T. Boals, county health officer of Tillamook County, the following order: “By order of the surgeon-general of the Hnited States Public Health Service, you are directed in ease of the appearance of an outbreak of influenza in your community to discontinue all public meetings and close — 653 — all schools and places of public amusement. Eeport immediately any cases occurring. ’ ’ "We must conclude that the school was closed and remained closed pursuant to that order. Section 4686, L. O. L. provides for a “state board of health,” to consist of seven members, and its powers must be found in the statute. Section 4687, which defines its duties, says: “The state board of health shall have general supervision of the interests of the health and life of citizens of this state,” and “it shall make and is hereby empowered to enforce such quarantine regulations as seem best for the preservation of the public health.” It is made the duty of officers of the state “to enforce such regulations.” Section 4696 declares that: ‘ ‘ The board of health of each county shall be subordinate to the state board of health. * * It shall be the duty of the county boards of health to enforce all rules and regulations of the state board of health in their respective counties, which may be issued from time to time for the preservation of the public health and for the prevention of endemic, epidemic and contagious diseases.” 9. It will thus be seen that it is the duty of the county board of health to “enforce all rules and regulations of the state board of health.” The power to make and enforce quarantine regulations given the state board by Section 4687 does not embrace or carry with it the authority to close public schools. 7 Words and Phrases, page 5880, says: “To ‘quarantine’ persons means to keep them, when suspected of having contracted or been exposed to an infectious disease, out of the^community, or to confine them to a given place therein, and to prevent intercourse between them and the people generally of such community.” — 654 — In operation it is confined to specific persons who have or who may have been exposed to a contagions disease, arid it does not apply to the public in general. Although the state board is given "general supervision of the interests of the health and life of the citizens of the state,” that provision should not be construed to mean that it alone has power to close the public schools of the state. Such authority would be very broad and' far-reaching and would have to be read into the statute by construction. If it had been the intent of the legislature to confer such a vast power upon the state board of health, it should have used language far more specific and certain than that appearing in the sections quoted. In every school district in the state there are three or more directors, of more or less prominence, elected by the people, who are in close and active touch with conditions in their respective district, and who have general charge and supervision of the schools. 10. Subdivision 9 of Section 1, Chapter 172, Laws of 1913, provides that “boards shall have entire control of the public schools of their districts and the teachers employed therein.” Subdivision 12 says that school boards may "on account of the prevalence of any contagious disease or to prevent the spread of any such contagious disease, prohibit the attendance of any teacher or scholar upon any school under their control.” But this last does not empower school boards to close schools, and such authority, if any, must be found in subdivision 9. But that portion of the act does not say that in case of an epidemic of a contagious disease the school board shall close the school, nor does it point out or define as a matter of law when or for what specific reasons the board shall close the schools. Under its general powers of control and supervision, — 655 — the closing of the schools for any reason rests in the sound discretion of the school board, and therefore it is not a question of law. The legislature has rightfully assumed that in all such matters the school boards will work in harmony with the boards of health to prevent, suppress, control and regulate the existence and spread of contagious diseases. 11-13. It will be noted that in the instant case the defendant specifically alleges that the school was closed in obedience to the order of the health officer, and not otherwise, and hence it must follow that defendant’s school was not closed by operation of law. Neither is it a sequence that the closing of the school would suspend the contract between plaintiff and defendant, which by its terms was confined only to the transporting of pupils to and from school. The contract does not contain any provisos or exceptions, and no order was made by anyone which would in any manner prohibit the carrying out of its terms. As stated in 3 Elliott on Contracts, Section 1891: ‘ ‘ The general doctrine that, when a party voluntarily undertakes to do a thing without qualification, per formance is not excused because by inevitable accident or other contingency not foreseen it becomes impossible for him to do the act or thing he agreed to do, is well settled. As a man consents to bind himself so shall he be bound. Where no express or implied provision as to the event of impossibility can be found in the terms or circumstances of the agreement, it is a general rule of construction, founded on the absolute and unqualified term of the'promise, that the promisor remains responsible for damages, notwithstanding the supervening impossibility or hardship.” The judgment is affirmed. Affirmed.