236 N.W. 358 | N.D. | 1931
This is an application for a writ of mandamus addressed to the defendants as members of a school board, requiring them to install the petitioner as teacher in one of the schools in the district and to pay her according to an alleged contract for service.
We need not pass upon the disputed testimony. We take as true the facts stated by the appellant.
On the fifth day of July, 1930, the appellant, a school teacher, was employed by the school board of Dodd's School District in Nelson County to teach School No. 2 in that district, for a term of nine months beginning September 8, 1930, and her compensation fixed at $90 per month. A written contract to this effect was signed by both parties.
By the second day of August, 1930, there were changes in the personnel of the school board and the new school board, at a special meeting, decided "that Mary Mootz was not legally hired and she should be notified to that effect," and entered into a contract with one Anne Collins to teach this particular school. Appellant says this meeting was illegally called, and that this action was taken by the school board without any notice to her and without her knowledge or consent.
On the 8th of September, 1930, she came to the school, prepared to teach, and ever since has been ready and willing to teach; but the school board has prevented her from taking charge of the school and installed Miss Collins who ever since has been teaching and drawing salary for the school year.
An order was issued, requiring the defendants to show cause why appellant should not be installed as teacher in the school and why she should not be paid the salary agreed upon.
On the return day defendants appeared and demurred on the ground that the court had no jurisdiction, that there was a defect of parties defendant and that the petition did not set forth facts sufficient to constitute a cause of action. Affidavits were presented by both sides and the court denied the writ.
Section 8457 of the Comp. Laws says the "writ of mandamus may be issued . . . to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which *744 he is unlawfully precluded by such . . . board." Section 8458 of the Comp. Laws says: "The writ must be issued in all cases when there is not a plain, speedy and adequate remedy in the ordinary course of law."
It is the claim of the appellant that she is being denied the "use and enjoyment of a right or office" to which she is entitled. Whether her contract gives her a right or office depends upon her relationship to the school board and her right under her contract. The duty of employing teachers is vested in the school board and this is done by contract. The relationship is purely contractual in this State. There is no fixed tenure of office when a teacher is employed, other than the provisions set forth in the contract. In this State the profession is not under civil service rules. When a teacher is employed by a school district she is not employed as an officer and she does not become an officer. Her rights are measured by the terms of her contract. As said in Board of Education v. State,
The relationship between the teacher and school directors is purely contractual. Clune v. School Dist.
Heath v. Johnson,
In State ex rel. Lewellen v. Smith,
In Hartigan v. West Virginia University,
True, it may be difficult at times to draw a line of distinction between an official and an employee, but there can be no officer if there be no office. That the duties performed are public or quasi public in their character is not sufficient to create an office. As said in State ex rel. Childs v. Kiichli,
"The words `office' and `officer' are terms of vague and variable import, the meaning of which necessarily varies with the connection in which they are used, and, to determine it correctly in a particular instance, regard must be had to the intention of the statute and the subject-matter in reference to which the terms are used."
Our statute says:
"The district school board shall have the general charge, direction and management of the schools of the district, and the care, custody and control of all the property belonging to it, subject to the provisions of this chapter; provided that in the employment of teachers, no person related by blood or marriage to any member of the district board *746 shall be hired without the unanimous consent of the board." Comp. Laws 1913, § 1173.
It is the duty of the board also to "organize, maintain and conveniently locate schools;" "make all necessary repairs to school houses, . . . furnish fuel . . . provide for janitor service;" "have the care and custody of the library;" "make rules to govern the circulation and care of the books;" "employ the teachers of the school district and may dismiss a teacher at any time for plain violation of contract, gross immorality or flagrant neglect of duty." "Admit to the schools in the district pupils from other districts; . . . levy upon the property in the district a tax for school purposes;" "permit a school house . . . to be used . . . for any proper purpose." Sections 1174, 1175, 1177, 1178, 1179, 1182, 1183.
With the approval of the county superintendent the school board is required to furnish the necessary furniture and to determine what branches or subjects shall be taught in the school. Sections 1176, 1181. It will be noted, with reference to school teachers, the statute says the board may "employ" teachers and refers to the "employment" of teachers. The prescribed duty of a teacher "can be changed at the will of the superior, since no rule of law or well defined custom forbids it," and this is one of the tests applied by the Michigan Court in determining whether a certain "Chief Clerk" was an officer or a mere employee. People ex rel. Throop v. Langdon,
As said by Chief Justice Marshall in the case of United States v. Maurice, 2 Brock. 96, Fed. Cas. No. 15,747, "a man may certainly be employed under a contract, express or implied, to do an act or perform a service without becoming an officer. But if a duty be a continuing one, which is defined by rules prescribed by the government, and not by contract, which an individual is appointed by government to perform, who enters on the duties appertaining to his station, without any contract defining them . . . it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer." In Mechem on Public Officers, §§ 1 to 9, the text discusses the essential elements of an office and shows that the term "has respect to a permanent public trust to be exercised in behalf of the government, and not to a merely transient action, occasional, or incidental employment," and that as a rule, "the duties *747
are continuous in their nature; and defined by rules prescribed by government, and not by contract." In § 5 it is said: "Where therefore, the authority in question was conferred by a contract, it must be regarded as an employment, and not as a public office." This differentiates the California cases cited by appellant, for there the duties were continuous and permanent and the teachers became a part of the machinery of government. For the elements of an office see United States v. Hartwell, 6 Wall. 385, 18 L. ed. 830; Shelby v. Alcorn,
Kennedy v. Board of Education,
Appellant says these cases are applicable because the principle announced is that a teacher cannot be removed except for cause and that our statute, § 1178, says the school board "shall employ the teachers of the school district and may dismiss a teacher at any time for plain violation of contract etc.," and that therefore under our statute a teacher cannot be removed except for cause set forth in the statute and thus the board may by mandamus be compelled to reinstate her until she is removed by cause. Appellant cites the case of Clark v. Wild Rose Special School Dist.
But the failure to give the required notice and therefore to legally remove for cause affects merely the liability under the contract. If the board give the required notice and legally removes for cause then the contract is abrogated and there is no further liability on the part of the district. On the other hand if the board fail to do so the contract is still in force and the teacher has rights thereunder. In Clark v. Wild Rose Special School District, supra, the teacher did not seek a writ of mandamus, but recovered wages under her contract. The question of whether she had been dismissed legally was certified to us. This court held that the teacher had not been dismissed according to law and remanded the case for final determination. While in the majority opinion no reference is made to the status of a school teacher, nevertheless there is nothing in the majority opinion to indicate disagreement with the thought expressed in the dissenting opinion, that a teacher "does not hold as the appointee of a public office," and that the whole relationship is merely that of contract only.
The Supreme Court of Oregon had occasion to pass upon such provisions and in Richards v. District School Bd.
Appellant cites Brown v. Owen,
The Case of Morley v. Power, 5 Lea, 691, cited by appellant is more nearly in point but in this case the teacher had not only been employed but was in the regular discharge of his duties, and the school board attempted to enjoin him from proceeding farther. In some of the cases cited by the court in that case it is evident the writ of mandamus was issued for purely ministerial purposes, and the court specifically says that in that case "there is no other adequate remedy to compel the performance of official duty by the directors or to reinstate a teacher wrongfully removed, and thereby deprived not only of his salary but his vocation." The court construes the position of teacher as the holding of an office "and the teacher of a public school has a franchise in his office, the loss of which cannot be compensated in damages." This is not the situation with us. All that the teacher is entitled to is his salary and there is an adequate remedy for this at law.
"It is, we think, too plain for controversy, that the relator's remedy is the very plain and common one that any party has against one with whom he has made a contract which such other neglects or refuses to perform, namely an action for the recovery of such damages as he has sustained in consequence of such neglect or refusal. He has a plain and adequate remedy by action at law." Board of Education v. State,
State ex rel. Sittler v. Board of Education,
Again, it is not the purpose of a writ of mandamus to supersede the legal remedies — rather it furnishes the remedy when there is no adequate legal remedy. See Strauss v. Costello,
The evidence shows the board refused to permit the plaintiff to begin teaching in September, 1930. She does not claim she had a contract for a period exceeding nine months. This case was not presented to *750
this court until the latter part of March term. When the case was argued there was less than six weeks of the term left. The writ of mandamus will not issue to compel the doing of a useless thing. Miller v. Stenseth,
The writ was properly denied, and the action of the lower court is affirmed.
CHRISTIANSON, Ch. J., and NUESSLE, BIRDZELL and BURKE, JJ., concur.