Barton v. School District No. 2

150 P. 251 | Or. | 1915

Mr. Justice McBride

delivered the opinion of the court.

1. This appeal presents two questions. The first relates to the manner in which the alleged contract was executed, and the second to the ruling of the court excluding parol testimony as to matters occurring when plaintiff was selected as a teacher. The following sections of Chapter 172, Laws of 1913, control the subject now to be discussed:

“The board 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. No contract shall be made with any teacher who is related by blood or marriage within the third degree to any member of the school board without the concurrence of all the members of the board, by a vote duly entered on the clerk’s records of proceedings. Unless otherwise provided in the teachers’ contract, it shall be understood that the branches provided for in the state course for the first eight grades shall be taught excepting school law and theory and practice of teaching. * * 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 hoard, 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. ’ ’

We think a fair construction of these two sections indicates that the amount of salary to be paid shall be fixed by resolution, and that the written contract, when prepared, shall be considered and executed by the directors at a meeting of the board. The district is entitled to have the judgment of the board, as such, not only upon the fitness of the persons selected, but upon the form, substance and sufficiency of the contract which constitutes the final act of hiring and makes the transaction complete. The teacher is not hired when he is designated by the board as the proper person to be contracted with, nor until a written contract considered by the board and found sufficient is signed and filed with the clerk. The selection is merely preliminary to the final contract. It points out the persons to be contracted with, and nothing more. That such was the actual intention of the directors here is indicated by the fact that in one instance the record shows that a certain person was designated as a teacher, with a second choice, thus: “Intermediate (grade) Miss Irma Taylor, with second choice, Mildred Ober.” It is plain that neither of these persons could have claimed that she had been “hired” by reason of this resolution. The selection of all the teachers was tentative and dependent upon their signing and accepting a written contract approved by the board. We think it important that the board, as such, should meet and discuss the form and substance of a contract before signing it, and that a signing by individual directors at different times and places is insufficient to bind the district.

2. 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.’ ’

It was the duty of the board to hire the teachers and to enter into and sign contracts. This duty they attempted to perform and finish outside of a regular or special meeting, and their action was void and amounted only to a personal contract of the directors signing. As tending to support plaintiff’s contention, his counsel cite School District v. Allen, 83 Ark. 491 (104 S. W. 172); Faulk v. McCartney, 42 Kan. 695 (22 Pac. 712); Brown v. School District, 1 Kan. App. 530 (40 Pac. 826); Holloway v. Ogden School District, 62 Mich. 153 (28 N. W. 764); Dolan v. Joint School District, 80 Wis. 155 (49 N. W. 960); Splaine v. School District, 20 Wash. 74 (54 Pac. 766). But an examination of these cases shows that they were rendered either under statutes widely different from ours, or that the services of the teacher had been actually accepted and rendered, in which case the irregularities had been waived. So here, if the plaintiff had been permitted, without objection, to enter upon the performance of his duties, the district could not escape paying Mm for Ms services upon that pretext: Stout v. Yamhill County, 31 Or. 314 (51 Pac. 442), approved in Baker County v. Huntington, 46 Or. 275, 280 (79 Pac. 187), seems to support plaintiff’s contention that, in cases of this character, oral evidence is admissible to supply an omission in the records of the board; but, in view of the fact that there was no valid execution of the contract of hiring, this question becomes immaterial.

The judgment is affirmed. Affirmed.

Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Harris concur.