50 Ind. App. 251 | Ind. Ct. App. | 1912
— Appellant brought this action to recover damages for an alleged breach of a written contract. A
The complaint alleges that on March 17, 1908, plaintiff and defendant, by its then board of school trustees, entered! into a written contract, by which plaintiff agreed to serve defendant in the capacity of superintendent of the public schools, and to give his whole time and attention to the superintendency of said schools for a period of three years, beginning September 5, 1908, and ending September 5, 1911; that in consideration of said services to be performed by plaintiff, defendant agreed to pay him a salary of $2,600 per year during said term of three years; that on said September 5, 1908, plaintiff entered on the performance of his duties under said contract, and continued in the performance of such services, and devoted his whole time and attention thereto until August 17, 1909, and has ever since been ready, able and willing to continue in the performance of all of his duties and services under said contract; that' on said August 17, 1909, defendant, through its then board of trustees, without reasonable or just cause, and over plaintiff’s protest and against his will, discharged him from his position of superintendent of the public schools, and then and thereafter refused to permit him to discharge and perform the services and duties required of him by said contract.
A copy of the contract is filed with the complaint as an exhibit.
Appellee1 asserts that the complaint is bad because (1) the contract is against public policy, and (2) the board was without statutory authority to make it.
Of the members of the board when the contract was entered into, the term of office of the one having the longest time to serve would expire on August 1, 1910, and the contract would terminate on September 5, 1911. If such contract is against public policy, the ruling of the trial court on the demurrer was right, if not, it was erroneous.
Section 9780 Bums 1908, §6090 R. S. 1881, authorizes the board of county commissioners to employ a superintendent of the county asylum, “to tahe charge of the same, upon such terms and under such restrictions as the board shall consider most advantageous for the interests of the county. ’ ’ While the phraseology of this statute differs from the one now under consideration, their meaning and general import, when applied to the subject-matter of each, are very similar.
The latter statute was considered in Board, etc., v. Shields (1891), 130 Ind. 6, 29 N. E. 385, with reference to the employment of a superintendent for a county asylum for a term of five years. In that case as in this it was alleged that the superintendent was discharged by the board “without any cause”, after a change of its personnel, and after said superintendent had served a considerable portion of his term. The objections there urged are identical with those presented to sustain the ruling of the trial court in this ease. The court held that the contract was not against public policy, and said: “The power thus conferred upon boards of county commissioners to employ and contract with a superintendent, in the absence of any restriction contained in the statute, of necessity carries with it the power to fix some term of service or time of duration of such employment. It was undoubtedly competent for the legislature to
In Reubelt v. School Town of Noblesville (1886), 106 Ind.
Appellee relies mainly on Board, etc., v. Taylor (1890), 123 Ind. 148, 23 N. E. 752, 7 L. R. A. 160. In that case the contract of the board of commissioners Avith certain attorneys to serve the board for a term of three years was held invalid as being against public policy and for the reason that the members of the board did not have power to bind their successors in office by such contract. This case Aras discussed in Board, etc., at. Shields, supra, and held not to be controlling in that case, and among the reasons given for so holding it was said: £ £ The relations existing between an attorney and his client are unlike those ordinarily existing between employer and employe. They are of an intimate and confidential character. The attorney, instead of acting under the direction and instruction of his client, is himself largely the adviser and instructor. One of the principal duties imposed upon him by his employment is to advise as to the law. There is, therefore, much reason in holding that the board, as personally constituted, should be at all times
Counsel for appellee also refer to the act of 1893 (Acts .1893 p. 34, §6593 Burns 1908) making it unlawful for a township trustee to hire a teacher whose services under such employment do not begin before the expiration of the term of office of the trustee, and insists that this statute indicates the policy in such matters, and tends to show that the contract in the case at bar is against public policy.
The fact that the act is limited to township trustees is, however, significant in view of the general and growing custom in the larger cities of this State to employ school superintendents for a term of years. The statute governing the employment in this case confers the power without limitation, and the later act, limited as it is, in so far as it has any effect on the question of public policy, tends to indicate a different policy in relation to city school superintendents, or at least in a negative sense evidences the legislative intention to leave undisturbed the power conferred by the statute we are considering.
Other cases in our own State tend to sustain the view that
The decided weight of authority outside our own State is to the effect that such contracts are not against public policy. Cases to the contrary are generally distinguishable by the different provisions of the statute considered. Gates v. School Dist., etc. (1890), 53 Ark. 468, 14 S. W. 656, 10 L. R. A. 186; Picket Publishing Co. v. Board, etc., supra; Taylor v. School Dist., etc. (1897), 16 Wash. 365, 47 Pac. 758; Caldwell v. School Dist., etc. (1893), 55 Fed. 372; Ward v. Board, etc. (1905), 138 Fed. 372, 70 C. C. A. 512; Wait v. Ray (1876), 67 N. Y. 36; Farrell v. School Dist., etc. (1893), 98 Mich. 43, 56 N. W. 1053; Chittenden v. School Dist., etc. (1884), 56 Vt. 551; Wilson v. East Bridgeport School Dist., etc. (1869), 36 Conn. 280.
In Wait v. Ray, supra, it was said with reference to a statute similar to ours: “This-power is general and unlimited. If it had been intended that the contracts which they are authorized to make should not extend beyond their term of office, this general language wótdd have been limited.”
In Caldwell v. School Dist., etc., supra, it was said, in substance, that where the term of such employment is not limited by statute, no principle of public policy prohibits the making of a contract similar to the one before us.
For reasons already stated, we conclude that the trial court erred in sustaining the demurrer to appellant’s complaint.
The judgment is therefore reversed, with instructions to the lower court to overrule the demurrer to the complaint, and for further proceedings in accordance with this opinion.
Note. — Reported in 98 N. E. 153. See, also, under (1) 35 Cyc. 1079; (2, 3) 9 Cyc. 482; (4) 9 Cyc. 482; 35 Cyc. 1079. As to contracts against public policy, see 93 Am. St. 905. The authorities on the power of a board to appoint superintendents or teachers for terms extending beyond its own term are discussed in a note in 29 L. R. A. (N. S.) 057.