30 Kan. 268 | Kan. | 1883
This was an action brought in the district court of Bourbon county by Joseph McCoy against School District No. 23 of that county, to recover for wages claimed by him as a school teacher in such district from January 4, 1881, up to the time of the commencement of this action, on March 25, 1881, at $40 per month. The case was tried before the court and a jury, and a verdict and judgment were rendered in favor of the plaintiff and against the defendant for $115 and costs. The defendant brings the case to this court for review.
It appears from the record, that on September 11, 1880, the school district employed McCoy to teach a school for eight months in that district, for $40 per month. He taught the school from September 13,1880, up to January 4,1881, when he was discharged by the district board, in conjunction with the county superintendent of public instruction, for incompeteney. Previous to this discharge, the district board requested the county superintendent to act in conjunction with it in an investigation of the charge of incompetency on the part of McCoy; and McCoy was notified of such proposed investigation, and at his request the investigation was adjourned a few days, and set for January 4, 1881. On that day the school-district board, in conjunction with the county superintendent, met at the district school house for the purpose of investigating the charge. McCoy and his attorney appeared, as did also a large proportion of the people of the district, including the school children. An investigation was had, but not upon written charges nor evidence under oath, but upon oral testimony, not under oath. The district board and county superintendent decided to discharge McCoy, and did discharge him ; but no record of the discharge nor of any of the proceedings was kept or made. The board, however, at the time paid McCoy in full for his services up to that time, and made an entry of such payment on its records.
The defendant in error, plaintiff below, admits that the third question above mentioned is involved in this case, but denies that the other two questions are involved therein, or that they can properly be presented to this court for consideration. We are inclined to think that the defendant in error is correct. The defendant in error, plaintiff below, alleged in his petition below, among other things, as follows:
“That on the 11th day of September, 1880, at the request of said defendant, he agreed to and with said defendant that he would teach a common school in said district for a period of eight consecutive months, commencing on the 13th day of September, 1880, in consideration of which the defendant employed him to teach such school for said period, and agreed and promised to pay him therefor the sum of $40 per month for the full term of eight months, which sum of $40 per month he says his services were reasonably worth.”
The defendant below answered these allegations by setting forth in its answer, among other things, as follows:
“Defendant admits that on the 11th day of September, 1880, defendant employed plaintiff to teach school in said district, as alleged in said petition, for a period of eight months, commencing on the 13th day of September, 1880, at the rate of $40 per month.”
Hence it would seem from these allegations, that the question whether the original contract between the parties was valid, or not, or in writing, or not, or was made by the school-district board, or not, is not in the case; for it would seem that the'defendant admitted in its answer that the contract as it was originally made was in every respect valid and binding upon the district, and no question was anywhere raised in the court below with reference to any irregularity or infirmity affecting the contract as it was originally made; and hence no such question can now be properly raised, or properly presented to this court for consideration. Any evidence introduced tending to show any defect in the original contract,
We shall now proceed to consider the third question above mentioned; and the decision of this question depends upon the interpretation that may be given to said §24 of article 4 of the school laws of 1876. That section reads as follows:
“Sec. 24. The district board in each district shall contract with and hire qualified teachers for and in the name of the district, which contract shall be in writing, and shall specify the wages per week or month as agreed upon by the parties, and such contract shall be filed in the district clerk’s office; and, in conjunction with the county superintendent, may dismiss for incompetency, cruelty, negligence, or immorality.”
Under this section, the district court held substantially that the school board, acting in conjunction with the county superintendent in dismissing a school teacher for incompetency or otherwise, was substantially a court; that such court could have no jurisdiction to hear and determine the case, unless written charges in the nature of pleadings were in fact made and filed, and a regular notice in the nature of a summons given to the teacher, and a regular trial had between the parties, as in ordinary actions in regular courts of justice; that the testimony of the witnesses adduced on the trial could be given only under oath, duly administered by some competent officer authorized to administer oaths; that, in order that the proceedings should be of any validity, or have any force, a record of the same must be kept and preserved; that the fact that a school teacher might be actually incompetent, and actually dismissed for such incompetency, would be no defense to an action brought by the school teacher against the board for wages or hire agreed to be paid him, unless he had been regularly dismissed in strict conformity with the interpretation given by the trial court to said § 24 of the school law of 1876; and hence the court in the present case ex-
“The court instructs you, that while it is lawful for a •school board of any school district, in connection with the county superintendent of public instruction, to dismiss a teacher for incompetency, cruelty, negligence, or immorality, such board has not the power, either alone or in connection with the county superintendent, to dismiss a qualified teacher who has been duly employed by it for any cause other than those mentioned — incompetency, cruelty, negligence, or immorality— nor even for any or either of such causes, unless a plain and distinct charge in writing be made, setting forth the charge to be inquired into, and that the teacher have due and sufficient notice of such charge and of the time and place .of hearing; and it is essential, in every case of lawful •dismissal of a teacher, that a record be made of the charge, and of the hearing, and of the order or decision made upon such hearing by the school board and the county superiutend-ent. It is also necessary that the testimony of witnesses upon the hearing should be given under oath, duly administered, and by some competent officer.”
It seems to us that the district court committed error. The whole of the statute with reference to proceedings for the dismissal of school teachers is as follows:
“The district board in each district, . . . in conjunction with the county superintendent, may dismiss [a school teacher] for incompetency, cruelty, negligence, or immorality.”
There is no statute anywhere to be found providing, either in terms or by implication, that the school-district board and the county superintendent when acting together shall constitute a court. There is no provision defining who shall be the presiding officer in such cases, or whether there shall be any presiding officer; no provision for a clerk, or sheriff, or marshal, or constable, or any other officer except themselves. There is no provision for the issuing or serving of writs or
But suppose, for the purposes of the argument in this case, that the district board, acting with the county superintendent, is in fact a court, and that in the present case the proceedings of such court were so irregular as to be absolutely void:
As sustaining the views just enunciated, that the proceedings are valid, and legal, and proper, as a dismissal of an employé by an employer, and that the proceedings do not amount to an adjudication by a court of justice, see the following cases: Holden v. School District, 38 Vt. 529; The People v. Board of Education of New York City, 10 S. C. Rep. (3 Hun), 177; Kirkpatrick v. Independent School District, 53 Iowa, 585; Neville v. School Directors, 36 Ill. 71; see also
On the other side of this case, the following cases are cited : Morley v. Power, 12 Cent. L. J. 540; Murdock v. Trustees of Phillips Academy, 29 Mass. (12 Pick.) 244.
Counsel for defendant in error also cites Geter v. Comm’rs for Tobacco Inspection, 1 Bay (S. C.), 354; Singleton v. Comm’rs for Tobacco Inspection, 2 id. (S. C.) 105. But these cases have no application to the present case, for they were simply actions of mandamus to compel the commissioners of tobacco inspection to restore the plaintiffs respectively to the office of inspector of tobacco, from which office each had been wrongfully removed, as he alleged; and they were not actions brought by school teachers, mere employés, to recover of their employers the contract price for their services. Neither has the case of Murdock v. Phillips Academy much application to the present •case. That was an action brought by a “Brown professor of sacred rhetoric and ecclesiastical history in the theological seminary in Phillips academy in Andover;” and the place which he claimed to fill, and from which he was removed, was an office, which he was to hold from year to year, at a fixed salary of $1,500; and he was not a mere employé, as a school teacher is. There are also other differences between •that case and the present one. The case of Morley v. Power, ante, comes the nearest being applicable to the present case of any cited by counsel for defendant in error; but that case probably has but little application to the present case, for the
In the case of The People v. The Board of Education, ante, 3 Hun, 179, the court uses the following language:
“The teachers employed in the public schools of the city [ofNew York] do not hold a public office. They are simply employés of the trustees of the schools in whose service they are engaged.”
And in the same volume, on page 181, the court says:
“ The delicate nature of the duty devolved upon the trustees, to see to it that unfit or incompetent persons are not put or kept in charge of the children who attend the common schools, forbids the idea of a trial with the formality and strictness that belong to courts.”
And on page 185 of the same volume, it is said:
“ If they [the board of trustees] were satisfied as to the relator’s incompetency, with or without evidence, their power to remove the relator therefor cannot be questioned.”
In the case of Kirkpatrick v. The Independent School District, ante, 53 Iowa, 587, it is said:
“The plaintiff’s error has arisen, we think, from supposing that the statute was designed to constitute the board substantially a court. It was really in this case the agent of an employer undertaking, as such agent, to discharge an employé. Under the statute, it could properly do so only after taking certain prescribed steps. It may perhaps be said to exercise judicial functions; but it does so only in a very slight sense.*278 It is certainly not a court, and the rules in regard to jurisdiction are not applicable to it which are applicable to a court.”
And in the case of Tripp v. School District, 50 Wis. 657, it is said:
“Under the rules of the common law, the teacher would be subject to discharge if he failed to perform his duty in any material point.”
In the case of Neville v. School Directors, 36 Ill. 71, 73, et seq., it was held that the directors of a school district may undoubtedly discharge a school teacher for incompetehcy or neglect of duty; but that' afterward, if they are sued by the teacher for the sum agreed to be paid him, it devolves upon the directors to show that the teacher was dismissed for incompetency or neglect of duty, and that in fact he was incompetent, or that he neglected his duty.
After a careful examination of this case, we are satisfied that the district court erred, and that its judgment must be reversed, and the cause remanded for a new trial.