137 N.W. 481 | N.D. | 1912
This is an appeal from an order of the district court of McHenry county quashing a writ of certiorari issued by such court to review the proceedings of the defendant school board with reference to the hiring of teachers. For the purposes of this appeal the facts stated in the petition for the writ must be taken as true, the defendants’ motion to quash which was granted being in the nature of a demurrer admitting the facts alleged, and merely challenging their legal sufficiency to authorize the issuance of such writ. The petition, omitting formal parts, is as follows:
State of North Dakota^ County of Ward j‘"
A. L. Schafer, being first duly sworn, says that he is the plaintiff named in the above entitled action; that he is of the age of twenty-nine years; that he is a regular graduate of the Dakota Wesleyan University of Mitchell, South Dakota, and during all the times hereinafter men
Teachers’ Contract (Original).
State of North Dakota] County of McHenry [ South Bend School f" District No. 1 J
This agreement, made and entered into this 20th day of May, a. d. 1912, between A. L. Schafer, a duly qualified teacher, of McHenry county, state of North Dakota, and the school board of South Bend school district No. 1, county of McHenry, state of North Dakota.
Witnesseth: That the said A. L. Schafer is to teach school No. 1 in said school district for a term of twelve months, beginning on the 1st day of August, a. d. 1912, for which services truly rendered the school board qf said school district agrees to pay the said A. L. Schafer at the expiration of each month of service, the sum of one hundred thirty-three and 33/100 dollars.
Provided' That the salary of the last month in the term shall not be paid until the term report shall be made, filed with, and be approved
Provided further, That the school may be discontinued at any time as provided by § 832, Eevised Codes 1905, and that no compensation shall be received by said teacher from the date of such discontinuance.
A. L. Schafer, Teacher,
Scintilla S. Eitchie, President,
A. E. Welo, Clerk.
That at the time of making such contract and of the proceedings prior thereto, this affiant was entitled to receive from the state board of examiners a first-grade professional certificate as a teacher in the public schools of the state of North Dakota, upon presentation of his certificate and diploma from the said Dakota Wesleyan University of Mitchell, South Dakota, all of which facts were well known to the school board of said school district at the time of its said meeting on May 14, 1912, and at the time of the execution of the contract hereinbefore set forth.
That in and by the terms of said contract the term of employment of this affiant as such teacher and superintendent of said school district began on the 1st day of August, 1912. That prior thereto this affiant duly presented to the board of examiners of the state of North Dakota his said certificate and diploma from said Dakota Wesleyan University of Mitchell, South Dakota, and thereupon there was duly and legally issued to him by the board of examiners, provided for by the laws of this state in relation to schools and school officer, a professional first-grade certificate, which qualified this affiant to teach in all the common and graded and high schools of the state of North Dakota for the period of two years, such certificate bearing the 26th day of July, a. d. 1912; and that thereafter and on the 30th day of July, 1912, and prior to the commencement of this affiant’s term of service as teacher and superintendent of said school district, the said first-grade professional certificate so issued to and held by him was duly recorded by the county superintendent of schools of the county of McHenry and state of North Dakota; and that thereupon this affiant became fully qualified and authorized to enter upon the employment set forth in said contract, and has ever since been and now is so qualified and entitled to perform the duties incident to such employment, and to receive from said school district the compensation provided therefor by the terms of said contract.
“Whereas, The board of directors of South Bend school district No. 1, of Velva, McHenry county, North Dakota, at a regular meeting held on the 14th day of May, 1912, elected A..L. Schafer as superintendent of schools .of said district for the ensuing year, and, in conformity with said action of the school board, a contract was made between said school board and A. L. Schafer, employing him as superintendent of schools of said district, services to begin August 1, 1912, and
“Whereas, It has become the knowledge of said board of directors that said A. L. Schafer has no legal qualifications to teach in the public schools of the state of North Dakota, he is therefore incompetent to contract with said board of directors to teach, and by reason therefore said action of the board becomes illegal.
“Be it therefore resolved, that the said contract made between said board of directors and A. L. Schafer be hereby declared null and void and that said contract be canceled.
“Be it further resolved, that the position of superintendent of schools of said district be declared vacant, and that said' board of directors proceed to elect a lawfully qualified teacher to fill the position made vacant by this resolution.”
That thereupon at that said meeting the said defendants, as such school board, voted to and did enter an order declaring the contract of this affiant hereinbefore set forth to be void on account of his not having as yet qualified in the state of North Dakota, and that the position of superintendent of said schools was made vacant thereby. That thereupon said defendant, as such school board, proceeded and did, in form, elect and employ one O. J. Lokken as superintendent of schools of said school district for the ensuing year.
That this affiant is informed and believes that the said defendants as such school board, and pretending to act for and on behalf of said school district, signed and executed an instrument purporting to be a
That the public schools within said school district will begin their sessions on or about the 9th day of September, a. d. 1912, and that in the interval between the date of this petition and the commencement of the sessions of said school there is a large amount of necessary preliminary work to be performed by this affiant as such superintendent and teacher, and that unless affiant be permitted to enter upon such duties, and unless the said board be restrained and enjoined from suffering the said O. J. Lokken to enter upon the performance of said duties, this affiant will be greatly delayed and annoyed in the conducting of the schools of said district in the manner in which they should be conducted.
A. L. Schafer.
Subscribed and sworn to before me this 10th day of August, a. d. 1912.
(Seal) John E. Greene,
Notary Public, Ward Go.,
N. Dak.
“No person shall be employed or permitted to teach in any of the public schools of the state, except those in cities organized for school purposes under special laws, who is not the holder of a lawful certificate of qualification or permit to teach. Any contract made in violation of this section shall be void.” (§ 122, chap. 62, Laws 1890, as amended in 1891.)
And the other section reads:. “It [the school board] shall employ the teachers of the schools of the district, . . . provided, that no person shall be employed as teacher or permitted to teach in any public school who is not, when so employed or permitted to teach, the holder of a teacher’s certificate valid in the county or district in which such school is situated; ...” (Laws 1890, chap. 62, § 75).
The court evidently construed such statute as prohibiting the entering into of such a contract when the teacher at such time does not hold a certificate or permit entitling him to teach, and the language which the court deemed controlling and decisive was above quoted. In that case it should be noticed also that “neither at the time of entering into the contract nor at the time of commencing to teach, did respondent hold a certificate valid in Ransom county.” This fact no doubt was considered of some weight in that case, but however this may be, certain language found in the opinion is very significant, and unmistakably dis
In revising and codifying our school laws in 1911 the legislature reenacted the old sections construed in the Hosmer Case, but in a materially changed form. The portions of the old statute which we have italicized were entirely omitted. In doing so, we think it was the plain intent to change the rule announced in the Hosmer Case. The section dealing with the powers and duties of school boards (Laws 1891, chap. 62, § 75) reads: “No person shall be employed as teacher or permitted to teach . . . who is not, when so employed or permitted to teach, the holder of a teacher’s certificate,” etc. And as revised and re-enacted in 1911 it reads: “No person shall be permitted to teach who is not the holder of a teacher’s certificate, . . .,” etc.
Why this change in the statute, if no change in its meaning and operation was contemplated ? It is not reasonable to presume that something more than a mere change in the phraseology of the statute was intended, especially in view of the Hosmer decision, which had been the settled law in this state for so many years ? Furthermore, and with no intention of questioning the correctness of the Hosmer decision, we think a. wise public policy demanded such change. There appears to us no good
Our conclusion leads to a reversal, and the District Oourt is accordingly directed to reverse its decision and to enter judgment in accordance herewith.