Taggart v. School District No. 1

BURNETT, J. This is a proceeding under the act of February 7, 1913 (page 69), passed “to provide for the employment and discharge of teachers, officers, and other employees in school districts now having or which at any time hereafter shall have a population of 20,000 or more persons,” which legislation is commonly known in school circles as the “tenure of office act.” Another statute on this same subject is embodied in Chapter 152 of the Laws of 1917, entitled “An act to amend Chapter 37 of the General Laws of Oregon for 1913, and to provide for the employment and discharge of all officers, agents and employees, and for the employment, transfer, investigation, trial and discharge of all teachers, classifying of teachers and instructors, creating a non salaried commission for the investigation and trial of teachers and instructors in school districts now having, or which shall have a population of 20,000 or more persons.” 1. It is contended by the defendants that the acts of 1913 and 1917 are unconstitutional, in that they do not set forth at full length the act revised or section amended. It is claimed that the first of these enactments is amendatory of Section 4052, L. O. L., subdivision 7, relating to the manner of making contracts with teachers, and the second is a revision of the legislation of 1913, in both of which instances the legislature has not complied with Article IY, Section 22, of the state Constitution relating to the manner of enacting amendments, in that the amendment is not set forth at full length. We do not find — 427 — it necessary to consider this branch of the case, and in deference to the co-ordinate branch of the state government, the legislative department, this court, as a part of the judicial department will decline to consider the constitutionality of legislation unless it is necessary to the decision of the case before us. 2. It is an axiomatic principle in the construction of laws that all legislation on the same subject must be taken in pari materia and all given effect where possible. This precept is enunciated in the proviso of Section 17 of the act of 1913, where it is said: “All acts and parts of acts in conflict herewith are hereby repealed. Provided, however, 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.” In Section 1 of this same act it is said: “The board of directors of each 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.” At the same session at which this law was enacted,1 the legislative assembly passed the act of February 25, 1913 (Chapter 172, Laws 1913), “to provide for the duties and powers of district school boards, including their acts in connection with recurring indebtedness of their districts and funding and refunding the same, and to repeal Sections 4052, 4053 and 4054 of Lord’s Oregon Laws relating thereto.” In subdivision 7 of Section 1 of that act, treating of the duties of the board of directors, it is said: — 428 — “The hoard at a general or special meeting called for that purpose, shall hire teachers, and shall make contracts with such teachers which shall specify the wages, number of months to be taught, and time employment is to begin, as agreed upon by the parties, and shall file such contracts in the office of the district clerk.” It is further said in subdivision 17 of the same Section: “Any duty imposed upon the board as a body must be performed at a- regular or special meeting, and must be made a matter of record. The consent to any particular measure obtained of individual members when not in session is not an act of the board, and is not binding upon the district. If a contract is made without authority of the board, the individual making such contract shall be personally liable.” Section 2 of the Tenure of Office Act lays down this definition: “The word ‘teacher’ or ‘teachers’ as used in this act shall include supervisors and principals and instructors who are in the employ of the school district or districts specified in this act.” This is amplified in the legislation of 1917 on the same subject, thus: “The word ‘teacher’ or ‘teachers,’ as used in this act, shall include all supervisors and principals and instructors who are in the employ of the school district or districts specified in this act, and all teachers and instructors are classified, for the purposes of this act, into the following branches of service, to wit: First, supervisors; second, high school principals; third, grade school principals; fourth, assistant supervisors; fifth, heads of departments in high school[s]; sixth, high school instructors; seventh, grade school teachers; eighth, special teachers. All teachers and instructors shall be placed or graded — 429 — in one of the foregoing branches of service for all purposes mentioned in this act.” Teachers are further classified by the Tenure of Office Act according to the length of their service. During the first two years thereof, they are known as probationary teachers, after which they are denominated permanently employed teachers. Section 4 of the original act and Section 4 of the act of 1917 are substantially the same, and read that: “Teachers who have been employed in the schools in any such district or districts as regularly appointed teachers for not' less than two successive annual terms shall be placed by the board of directors upon the list of permanently employed teachers.” The third finding of fact to which allusion has been made, reads thus: “For three and one-half annual terms next preceding the 27th day of January, 1919, said plaintiff was continuously employed by said district as a regularly appointed teacher in the science department of the Lincoln High School, one of the schools of said district; and she taught in said position during every session of said school during said period and performed all of the duties thereof; and, at the' time of the wrongful dismissal hereinafter mentioned, she was, by virtue of law, upon the list of .permanently employed teachers of said district. Plaintiff was appointed to her position by Superintendent Alderman in September, 1915, during the illness of the teacher in that department, and plaintiff so continued teaching in said department after the death of said teacher, and until plaintiff was discharged. She never signed a contract with said district. ’ ’ 3. Construing subdivision 7 of Section 1 of the act of February 25, 1913, in an opinion by Mr. Jus — 430 — tice Harris in Foreman v. School District No. 25, 81 Or. 587 (159 Pac. 1155, 1168), it was decided that when the school board hires a teacher a written contract must be made and filed, specifying the wages, number of months to be taught, and time employment is to begin as agreed upon by the parties. This is plainly a reasonable construction of the act, for unless the contract is in writing it cannot be filed in the office of the district clerk, as the act expressly requires. It is said also in Barton v. School District No. 2, 77 Or. 30 (150 Pac. 251, Ann. Cas. 1917A, 252), Mr. Chief Justice McBride, delivering judgment : “It is a principle settled by numerous decisions that where a power is given to a corporation to do an act, and the particular method by which that power is to be exercised is pointed out by statute, the mode is the measure of the power. Here the power or duty to employ teachers is prescribed, and the particular method by which that power shall be executed is also pointed out, and not only is this the case, but the statute adds the mandatory words: ‘ Any duty imposed upon the board as a body must be performed at a regular or special meeting, and must be made a matter of record.’ ” The manifest purpose and spirit of the statute, and the only reasonable construction that can be given it, is that the relation of teacher cannot be created except by a written contract embodying the terms prescribed by the statute. The duty thus imposed upon the board is not delegable. The directors have been elected by the people to perform a duty requiring their judgment. It is not a ministerial function which may be performed by another. The injunction of the statute to the effect that this must be done at a meeting of the board and made a — 431 — matter of record, and that the consent of individual members when not in session is not an act of the board and is not binding upon the district, accentuates this principle. 4. The plaintiff had no right to rely upon the action of the superintendent as a basis of service in the capacity of teacher so as to become ultimately one of the permanently employed teachers. A' knowledge of the law is imputed to her. There is no such thing as apparent scope of authority in one professing to act as agent for a public municipality of which the powers and their manner of exercise are so strictly and minutely defined by statute. The law prescribes the scope and extent of the authority of those acting for the district, and no one can conceal himself behind the camouflage of apparent authority. If one contracts with another' professing to act as agent of the district, it is at the peril of the contracting party. It does not bind the district unless the regular procedure is followed. This is the express command of the statute. As said in Murphy v. City of Albina, 22 Or. 106, 114 (29 Pac. 353, 356, 29 Am. St. Rep. 57): “A sufficient answer to the suggestion that the conclusion we have reached works a hardship upon plaintiff, who in good faith performed the extra work, supposing that the persons who directed it to be done were authorized to do so, is, that every person dealing with the agents of a municipal corporation must at his peril see that such agents are acting within the scope of their authority and line of their duty, and if he make an unauthorized contract he does so at his own risk. The courts cannot disregard the well-settled rules of law in order to avoid an apparent injustice in a particular case.” 5. Viewed in the light of the statute, the third finding of fact is self-contradictory. In the first part — 432 — it declares that the plaintiff was continuously employed by said district as a regularly appointed teacher. In the latter part it says that she was appointed by the superintendent during the illness of the teacher in that department, and concludes by saying: “She never signed a contract with said district.” If she was appointed by the superintendent either orally or in writing, she was not a “regularly, appointed teacher,” because that is not the formula prescribed by the statute. It is only a “regularly appointed teacher” who is entitled to the benefit of the Tenure of Office Act. But, whatever construction we may place upon this finding of fact, the statement that she did not sign a contract with the district, but was only appointed by the superintendent, works out the result that the finding of fact does not support the judgment. Called upon to prove the disputed allegation of the writ that she was continuously employed by the district as a regularly appointed teacher, she failed to produce the only evidence recognized by the statute, to wit, a written contract with the directors entered into at a meeting of the board. At her peril she depended upon her transactions with the superintendent, who really had no authority and if he had, could not and did not exercise it as the law requires. 6. There was no allegation in the writ about any damages suffered by the plaintiff on account of the conduct of the defendants. . It is said in Section 620, L. O. L.: “The pleadings in the proceedings by mandamus are those mentioned in Sections 618 and 619, and no others are allowed. They are to have the same effect and to be construed and may be amended in the same manner, as pleadings in an action.” — 433 — Further, in the following section, it is said: “If judgment be given for the plaintiff, he shall recover the damages which he shall have sustained by reason of the premises, to be ascertained in the same manner as in an action, together with costs and disbursements, and a peremptory mandamus shall be awarded without delay.” It is well nigh a platitude to say that without an allegation of damages no judgment therefor can be .supported. The award of damages in this instance was a pure gratuity and cannot be sustained in any view of the case. Except in 1870, there has not been a session of the legislative assembly which has not promulgated some statute relating to the public schools, and it would seem that at some time the manner of their administration would be settled. But however that may be, no law has abolished the principle that one desiring to enjoy the benefit of a legislative enactment must comply with its terms' and conditions. The statutes have prescribed the door by which the teacher may enter upon the path which ultimately leads to the position of permanent employment. Paraphrasing the Scriptures, we may say that he that entereth not by this door, but climbeth up some other way, the same is not entitled to mandamus installing him as a permanently employed teacher. The conclusion is that the judgment must be reversed and the writ of mandamus dismissed. Reversed and Dismissed. McBride, C. J., and Johns, J., were not present at the hearing of this case.