154 P. 372 | Idaho | 1915
This action was brought by appellant Buck for a writ of mandate directing the board of trustees of St. Maries School District No. 1 in Benewah county, to reinstate him as superintendent of schools in that district. The respondents filed a general and special demurrer to the petition, which demurrer was sustained by the trial court. Thereupon appellant refused to plead further and elected to stand on his original petition; whereupon judgment of dismissal of the action was entered. This is an appeal from the judgment.
The petition for writ of mandate alleges that on August 31, 1914, and for some time prior thereto and at all times mentioned in the petition, the city of St. Maries and a portion of the surrounding territory did and now does constitute an independent school district of class A, known as St. Maries Independent School District No. 1 in Benewah county,
The complaint further alleges that under the provisions of the Session Laws of 1913, p. 450, appellant is given an
The petition alleges that appellant has not been guilty of either or any of said grounds and that his discharge was unauthorized, illegal and wrongful and in excess of the powers granted to said school district, and prevents the use and enjoyment by appellant of the rights to which he is entitled.
Petition further alleges that on June 2, 1915, the appellant demanded of the board of trustees of said school district that he be reinstated as superintendent of the schools of said district, which demand the board of trustees refused.
Appellant alleges that he complied faithfully with all the terms and provisions of his agreement and stands ready at all times to perform, comply with and undertake the duties of superintendent of schools of said district and ex-officio executive officer of the board of trustees, and that he has no plain, speedy or adequate remedy at law.
This case comes before this court on appeal involving a question of law raised by the general and special demurrer as to the sufficiency of the petition, and may be determined, so far as the action of the trial court is concerned in sustaining the demurrer and dismissing the petition, upon the sole ground of whether subdivision B, of sec. 129, chapter 159, Sess. Laws 1911, as amended by sec. 17, chapter 115, Sess. Laws 1913, p. 450, was in force and effect at the time the contract or agreement between appellant and the board of trustees of St. Maries Independent School District No. 1 in Benewah county was entered into. If it was not in force at that time, the question whether the proceeding of mandamus instituted by appellant is the proper remedy need not be determined here.
Subdivision B, supra, was first enacted by the legislature during the eleventh session, and is to be found in the Session Laws of 1911 at page 532, and provides:
“When an independent school district shall employ thirty-five (35) or more teachers, it shall be known as an Independ*298 ent School District of Class A, and shall have, in addition to the above enumerated powers and duties, the following special powers and duties: ....
“3. To employ a superintendent of schools for a term not to exceed three (3) years, who shall be the executive officer of the board, with such powers and duties as they may prescribe, together with such powers and duties as are now or may hereafter be prescribed by the laws of the state, to fix, allow-and order paid his salary, and to discharge said superintendent for ineompeteney, immorality, or gross neglect of duty. ’ ’
At the twelfth session of the legislature sec. 129, chapter 159, Sess. Laws 1911, was amended, and subdivision B was re-enacted practically verbatim.> (Sess. Laws 1913, p. 450), the only change being that the number of teachers necessary to constitute a class A district was reduced to twenty. This act was signed by the governor on March 10, 1913.
At the same session of the legislature, sec. 129, supra, was again amended, and the number of teachers necessary to constitute a class A district, as shown in subdivision B (Sess. Laws 1913, p. 528), was increased to thirty-five, being the original number provided by the eleventh session, supra. This last act was signed by the Governor on March 12, 1913.
The demurrer in this case assailed the petition on the ground that the number of teachers employed in the respondent district was not set up in the petition. In order to bring appellant within the provisions of subdivision B, sec. 129, chap. 159, Sess. Laws 1911, as amended by Sess. Laws 1913, chap. 115, p. 450, or o'f subdivision B, sec. 129, supra, as amended by Sess. Laws 1913, chap. 159, p. 528, we think it was absolutely necessary for him to allege in his petition the number of teachers employed in the district by which he was employed to act as superintendent, and that the petition was subject to demurrer on this point. If the district did not employ the number of teachers provided for under the act, it would not be classified as an independent school district of class A.
It will thus be observed that there is an irreconcilable conflict between these two enactments of the 1913 session, not only touching the number of teachers to be employed in order to give an independent school district the dignity of standing in class A, but also in the matter of special tax levy for the purposes therein specified. And it might be fairly assumed that when the legislature was dealing with the question of the levy of taxes, in view of the publicity that has been given in recent years to the burden of taxation in this state, that their attention was directed to this particular phase of the subject in the last enactment. However, it appears to us that if the later enactment, supra, is to control in the matter of taxation, it would be unreasonable to hold that it did not apply to the number of teachers that an independent school district must employ in order to come within the class of independent school districts known as class A.
If the latter act in question governs in the matter of revenue, it should also control the action of the board of trustees of an independent school district as to all other matters. We cannot consistently reach the conclusion, in the face of ai positive statute dealing with a matter of such great importance to the taxpayers residing within an independent school district, that the legislature inadvertently used the words thirty-five teachers, when it was their intention to provide for but twenty, no more than we could hold that they used the words ten mills in providing a maximum special levy for a given purpose, when they intended to say twenty mills. The presumption would naturally be that the legislature in reducing the special levies intended to restrict the class.
It may well be conceded, from a consideration of the two amendatory acts of 1913 of the act of 1911, that there is a -doubt as to the real intention of the legislature in first reducing and then increasing the number of teachers in an independent school district of class A. However, it must be admitted that the two amendatory acts are directly in conflict and cannot be harmonized. And where such a condition exists, that is, where two acts are conflicting, it becomes necessary for this court to follow the rule it has heretofore applied in such cases.
Sec. 129, chap. 159, Sess. Laws 1911, as amended by Sess. Laws 1913, chap. 159, p. 527, confers upon trustees of independent school districts that are not in class A the power to employ or discharge teachers at will, while subdivision B of that section limits the power of boards of trustees of independent school districts of class A, where superintendents have been employed under proper contracts and who, by reason of such selection and employment, become the executive officers of said boards, to discharge such superintendents only for ineompetency, immorality or gross neglect of duty.
It necessarily follows, therefore, that unless the respondent district employed thirty-five teachers, it was not, at the date the contract was entered into with the appellant, an independent school district of class A. That being true, the powers of the board of trustees of the respondent district were not limited or restricted so' far as the removal of the appellant is concerned. (Ewin v. Independent School Dist. No. 8, 10 Ida. 102, 77 Pac. 222; Nermann v. Independent School Dist. No. 1, 24 Ida. 554, 135 Pac. 1159.)
On an examination of sec, 129, chapter 159, Sess. Laws 1911, and the amendment thereof in the Sess. Laws 1913, chapter 159, p. 527, we find that the latest act reduces the revenue, as heretofore stated, and leaves the number of teachers to be employed in an independent school district in order that the district shall be known as an independent district of class A, at thirty-five as in the original act. The reduction of taxation is clearly provided for, and the latter law as amendatory of the former is uncontradictory and reconcilable with the 1911 act, while the amendment of section 129, supra, by the Sess. Laws of 1913, chapter 115, p. 449, conflicts with the act subsequently passed by the twelfth session at pages 527 and 528, and also with act of the 1911 session at page 531.