State Ex Rel. Anderson v. Brand, Trustee

Brand, ex rel. State Anderson v. Trustee. 26,560. Rehearing January 14, April 27, Filed

[No. 1937. denied Supplemental opinion April Rehearing 1937. filed July denied 1938.] Plummer, & Plummer appellant. for Kelton, Brooks, Raymond John F. appellee. and for O’Hara, Shafer, Wick- Thomas F. Wickens & Paid R. Harlan, ens, Denver appellant. curiae and amicus sought Fansler, J. —By to is mandate this action it employ appellee in the of the town to continue relatrix ship as school teacher under Act of 1927 a 97, 259), provides (Acts 1927, p. which c.

person for five more has served or suc who teacher, years shall thereafter enter cessive as and service, per into a become for further shall (Acts amended in manent teacher. The act was 1933, 716, §28-4307, Burns’ Ann. p. St. c. city 1934), apply made Baldwin’s Ind. §6003 Townships, corporations only. and town originally applied, were omitted in the the act which repealing amendment, had the effect of law which schools, townships, far as so and the teachers therein are concerned. complaint

A demurrer to the was sustained. having error; that, relatrix contends that this was be- permanent come a teacher the Teachers’ Tenure under amendment, property- Law before the she had a vested right may in her indefinite which not be im- paired question under the Constitution. The is whether there permanent is a vested in a teacher’s con- tract; whether, law, grant under the tenure there is a lawfully impaired which cannot repeal statute. The establishment and maintenance of schools public governmental function, jurisdiction

is a over which

vests in the Assembly, General power, whose subject limitation, plenary constitutional is whose legisla discretion is not reviewable. This tive exercise, exhausted and schools may be continued discontinued, or sys and the school changed, system tem another, or one substituted for Legislature often as the necessary deem it advisable Sheldon, in the interest. Follett v. Treas. 195 Ind. 144 N. E. 867. In estab lishing enacting schools regulation, laws for their licensing providing teachers and for their ten ure, Assembly the General acts for the benefit public,-and not for the benefit teachers. In a case which was provision contended that a statute, providing for the revocation of teachers’ county superintendent, licenses unconstitu-, tional for the reason that property there awas vested license, in the this court said:

“It must be remembered that the establishment and regulation primarily of schools rests with the legislative department, and the provi- constitutional sions appellee invoked designed were not to tram- general political exercise its in the mel the State duty inter- impose the courts the powers, toor legislature in mat- and the citizen posing between the governmental license has concern.....A purely ters not confer and does of a none of the elements only personal privilege to be right, but an absolute existing may restrictions and such exercised under authorizing imposed. reasonably be Statutes thereafter promote licenses are enacted the issuance of such State, may or- good and welfare of the order legislature. dinarily pleasure repealed at ibhe be (Authorities.) (1876), Doyle Ins. Co.

“In v. the case of Continental 148, Supreme 535, 540, Court 24 L. Ed. 94 U. S. licenses, States, ‘The speaking said: of the United permission is a revoke recall a or correlative power. A mere necessary consequence the main ” Stone, Supt. always v. license a state is revocable.’ 792, 82 N. E. Fritts Ind. give purport teacher

The tenure law does permanent The word “indef definite and contract. inite” in the itself. is used statute compensation, is variable as to and the tenure permanent only neces in the event that it is not In effect there sary of teachers. the number to reduce gives preferential over teacher fore it the tenure If a tenure status. have not attained the teachers who granting purpose this had been statute for their own special privileges to certain teachers ques seriously in constitutionality benefit, its would theory justified upon But tion. its enactment can good the wel purpose promote its is to order system by prevent of the state and of fare ing capable experienced teachers the removal of changing office political personal whim of at policy Assembly favor A future General holders. 352 change

of constant power- of The teachers. courts are prevent change. succeeding Legisla- less to such a Each right change ture is free and untrammeled in its to governmental policy. The revocation of a tenure teach- would, course, carry er’s license with the in- contract, upon definite contract. The like the license rests, granted privilege grace which it is a the sovereign purpose good promoting for the order and welfare of the state. The license is broader in its bearing than contract. Without the license a tenure legislative contract cannot exist. power Since there is destroy revoke to the license and thus necessarily power thing, there must be to do lesser merely and revoke the tenure contract without cancel- ing only The license. tenure statute was intended upon plenary power as a limitation of local school officials to cancel contracts. v. Dick Johnson Ratcliff Twp. (1933), 204 School Ind. N. E. It as, be, upon was not intended and cannot a limitation Legislatures change "'power future to the law respecting teachers and their tenures. These are mat- governmental public policy, purely concern, ters of legislative power which the cannot be exhausted or consumed, away, or contracted so as to limit the discre- repeal tion of future General The Assemblies. of the statute, townships township in so far as it affects schools, removes the restriction corporation preferential far so as it affects the teachers, or so-called tenure leaves township officers free renew teachers’ contracts or may expedient. be deemed not as Judgment affirmed. Rehearing.

On Petition foe rehearing, petition appellant —On J. Fansler, J. gives earnestly case contends that the decision of this statute, permits effect to a a retroactive binding obligation con impairment original opinion was intended The tract. no contractual expressing view that

understood year year is from be continued as a teacher made for one are The teachers’ contracts involved. changed annually. Ten year, the terms effect, grants Statute, privilege to the teacher ure signed years, new and a additional has served five who teacher, condi as a under certain to continue limiting tions, by power of the local school officers any The. place in the tenure teacher. employ one to right employ to no continue teacher had contractual merely deprived of the local school The statute ment. any place employ teacher in other ficers of to teacher, required that the tenure teacher tenure necessary reemployed was reduction unless there under the con are in the number teachers. Schools government Legislature, units and local act trol of legislative agencies operation in the only as statutes, Constitution, law, The and the schools. part every abe teacher’s contract. be deemed to must sustained, it appellant’s If could would contention statute, mean as existed at the time a teacher status, changed, acquired could not be even in tenure grounds respect to the of cancellation or removal. original Legisla opinion, pointed

As out in ture, enacting laws, exercises of the func school one sovereignty. The

tions of to control management respect opera- policy, in to the ' schools, by away tion of be contracted one cannot Legislature permanent public policy, un to fix so as changeable succeeding Legislatures. by relationship

But, as controlled if the were considered re- provision for private the rules of employment year year is not enforce- from to 5,10, mutuality. able for want of teacher during time, any except

terminate the tenure at year thirty days previous the school and for beginning, giving days’ provi its five This notice. clearly sion indicates that the intended statute was not permanent to bind the or the teacher to a rela state ; only tionship that it intended as a limitation Davis, the discretion of local school Davis v. officers. (1926), Director General Railroads 197 Ind. 134; Ramsey 151 N. E. Kostanzer et al. v. ex State rel. 536, 548, 549, 205 Ind. 187 N. E. The latter case was an action a teacher man- date the school board to her continue teacher in schools under Tenure Statute. It is in the said opinion: permits “The tenure act a teacher to cancel any his contract at time after the close aof school term up thirty days prior beginning of the next term, provided days’ given, five notice is appellant contends that there was no contract between appellee appellants for the reason ‘that a contract parties which does not bind both binds neither them.’ proposition This undoubtedly supported by is the law nothing of contracts. But there is in the law of contracts prevent party granting to one ato contract to the other privilege the of rescission or cancellation on terms party. reserved to the former corpora- The local school agents tions are of the state in the administration of Assembly the schools and the General has prescribe power to the terms of the contract to be exe- agents.” by controlling cuted these The principle is corporations, being agents that local school state, of the must follow the statute and continue tenure teachers employment long in as unrepealed. so the statute is It consequence is of no whether the tenure are upon obligation based contractual or a mere The granted by revocable at will.. privilege the state statutory in agents obey mandate ministerial must repealed. been statute has But now the either event. exercising longer in Legislature discretion is no again is reemployment. That discretion the matter of contended, lodged not that It is now in the local officers. Legis- the dictates of must follow ministerial officers Legislature by lature, bound con- itself is but that the tenures; tenure continue teachers’ tract to right a vested which created of a contract arises out grace. ques- No privilege a mere or and not out of creating being bound tion of state right Kostanzer case. presented in the vested but, license, to Teachers have no contractual statutory require- they complied with the have when grant ments, be mandated to ministerial officers nothing The statement that “there the license. prevent party a contract to one to the law .of contracts granting privilege or can- of rescission to other party,” on terms not reserved to the former cellation law, proposition is not an but it is correct as abstract services, personal In for without limitation. contracts granting employee provision privilege to supported rescind at will must be some cancel or agreements independent reciprocal of the consideration paid service and to be services rendered. render §104, Contracts, p. that: It is said Williston on party may optional, if the promise either “The option employ in- not to or to serve of the exercise promisor, benefit detriment to the volves a McMullan v. Dickinson promisee.” Co. See employer, part 65 N. W. 661. Where an Minn. damages agreement in settlement of a claim for agrees give arising negligence, employee out of employee free permanent employment, is left is not to cancel and employment, leave the the contract 356 mutuality for

bad want of that the reason set payment privilege tlement is in advance for the of dis continuing employment will. Other similar at con might suggested, siderations but it is well settled that, where the term of service is left to the discretion party, of one it is contract at the will of either and be terminated either. It has been said that give where the employment terms of a contract of privilege party to one terminate privilege will Pennsylvania law extend the to the other. (1892), 109, App. 802; v. Dolan 6 Co. Ind. N. E. & (1913), Cox v. Baltimore O. S. R. Co. 180 Ind. 103 N. E. 337. gives opinion

It is repealing contended effect, statute retroactive but it does not. All annual teaching continue, repeal commitments and the only prospectively by striking acts down for the future those limitations which the statute placed upon the discretion of local school authorities respect reemployment with of teachers for succes years. sive original opinion

Since the filed, was Supreme Court the United States has sustained the Court of Appeals Errors and Jersey the State of ap New peáls involving from two comparable cases a situation respects in all substantial with the Phelps case at bar. v. Board Education Town New West York et al.; Askam et al. v. Board Education Town West et New York al. 300 U. S. Ct. 57 S. rehearing Petition for denied.

Supplemental Opinion (On Supreme Court.) Mandate of United States Fansler, J. —The decision in this case was reviewed Supreme States, Court of the United and an opinion January delivered and filed on 1938. See Brand, Trustee, etc., State ex rel. Anderson v. U. 303 S. 95, 58 S. Ct. 443. opinion

The Supreme of the United as- States Court only question sumes that this court considered whether the relatrix’ contract vested in her tenure rights protected by the Constitution of the United opinion 104) (p. States. It is said in the : “But arewe opinion petitioner that the had valid contract with obligation respondent, of which would be im- paired by the employment.” termination of her The de- cision pass upon does not discuss or the nature remedy remanding available. The is as order follows (p. 109) “As passed upon : the court below has not one grounds appears of demurrer which to involve no question, may present open federal a defense still respondent, judgment we reverse the and remand proceedings the cause for further not inconsistent with opinion.” this speci demurrer is for want of facts. One of the plaintiff’s

fications is that the action is founded repealed. statute which has been Where a de court, murrer is sustained the trial this court affirm, if, any ruling will reason, Poer, trial court is correct. Trustee v. ex rel. Hin State (1919), 83; shaw 55, Cope 188 Ind. 121 Bruns v. N. E. 289, (1914), 182 Ind. 105 N. E. 471. brought

This action is in the name of the State on Dorothy the relation of Anderson. It seeks to mandate the school authorities reinstate the relatrix as a teacher employment. and continue her in It is not Dorothy an action Anderson to enforce her require public but an action to officer perform duty required law, him which can be only maintained in the name State. City

In School Elwood et al. v. State ex rel. Griffin et al. 626, 634, 471, 474, 203 Ind. 180 N. E. recognized 1027, 1032, clearly

A. L. it is R. it is duty appellants imposed by because the same” of “the (the statute) proper remedy “that mandamus is the 1245, 1926, this case.” Burns’ Ann. cited in Section St. opinion, is as follows: “The action for mandate against prosecuted any tribunal, corporation, inferior corporate person compel per- or officer or any specifically enjoins, formance of act which the law any resulting duty any office, from trust or station.” Ramsey (1933), In Kostanzer et al. v. State ex rel 536, 547, 205 Ind. 187 N. E, is said: appellee’s position appellants “If is not an office insist that mandamus is not available for the reason that the granting mandatory enforcing relief results in right. purely contractual mandatory It is true that re against appellants enforcing lief appellee’s will result in rights contract; duty her judg under but the which the compelled ment the appellants trial court perform duty enjoined by by was a statute not and contract. The appellants appellee contract between created re appellee lation which entitled appellants have per duty question; form in duty but the imposed was not ' by any provision of the contract.” thought by It was this court when the above cases decided, were and when decided, this case was that the rights

enforcement depended of tenure entirely statutory duty school officers to employment, continue the teacher in and that the only protection teacher’s was an action in mandate in of the performance name State enforce the statutory duty by of a the school officers. In the rights Kostanzer case we said that the tenure were “by by created statute and not contract.” The United Supreme States Court has concluded that the teacher’s rights contract creates tenure repeal which the of the destroy. statute cannot strike protection down and The

359 Constitution, afforded relatrix federal that impaired by her contractual shall not state legislation. question, it, is the This we understand passed upon by Supreme was United States repeal That court held the to be in Court. statute down effectual to strike the teacher’s contractual tenure rights. repeal We conclude of the statute is respects, in all otherwise valid there is therefore longer any statutory duty requires no which the school employment. in to continue teacher officers The therefore officers cannot mandated. rights under her contract must teacher’s be enf orced in upon the civil action contract her own name. See City (1935), Peru et al. v. State ex rel. McGuire 210 Hulley, 199 E. ex rel. Ind. and State Ham v. N. Mayor, et al. Ind. N. E. 777. original

Much was about said contract opinion, perhaps, showing ineptly purpose for the right

that the tenure was created the con- that, tract, depended upon since it a statute repealed, right. been there which had was no such that, being right, there It followed such no the action lie, mandate would not prop demurrer was erly Supreme sustained. The United States Court has that the tenure concluded created also, the contractual but cannot be enforced an in action mandate. Contractual must en equity an at forced action law or in in the name of injured contracting party. the We must still conclude complaint therefore that the in name of the State mandate does not state a cause of action. Judgment affirmed.

Dissenting Opinion. Treanor, J., Dissenting—I agree cannot with majority

reasoning reached and result Court for two reasons. Tenure

(1) Amendment to the Teachers’ The 1933 given prospective effect accordance should a Act recognized rule “are that statutes con the well with only operating in cases on facts which strued passed were unless after statutes come into existence clearly retrospective effect be intended.”1 a legislative intent, If, give (2) to order to effect operate to retro- Amendment must be construed legislative the inhibi- spectively enactment violates the Indiana United Constitution tions States against impairment contracts. Constitution interpretation generally statutory is more No rule of granted will be rule that statutes taken for than the retrospective. prospective rather than Such treated as dealing justice supported by and fair a sense of rule is elementary distinction between is in with accord legislatively Normally rules. judicially and declared conduct; applies legislatively future rule declared governs judicially past rule as well as while declared Consequently when a statute future conduct. attaches legal consequences conduct, to certain stated no certain suggestion would that such court tolerate conse- quences prior which occurred would attach to conduct statute, effective unless the date of statute by express requires pro- effect such retroactive either by necessary implication. visions or English consistently give pre- cases effect to the sumption operate prospectively statutes rather retrospectively; emphasize these than cases the in- validity justice presumption herent since the English pressure courts are under no constitutional deny a retroactive effect to statutes in order avoid Maxwell, Interpretation Statutes, Ed., p.

1. 7th

361 be the statute invalid render which would construction against inhibition constitutional of a violation cause of leading impairment in the It is stated of contract. interpretation English authority “It statutes that of on. English law that no statute rule of is a fundamental operation retrospective un a to have construed be shall very clearly appears in a construction less such imp by necessary Act, and distinct arises terms of or foregoing supported the fol rule is lication.”2 leading English lowing “No rule of case. statement of firmly than this: that is established construction more given retrospective operation be to a statute so is not to existing right obligation, impair otherwise an or as to regards procedure, effect matters of unless that than as doing violence to the lan cannot be avoided without guage expressed the enactment. If the enactment is language fairly interpre capable either in which is ought prospective only.”3 tation, it construed substantially are The statements American courts English It stated the same as courts. is those of Statutory “The Lewis’ general Construction Sutherland operate rule will be construed to is that statutes contrary prospectively only, an intent to the unless foregoing clearly appears.”4 support state In excerpts ment courts are numerous of decisions of state ollowing quoted; typical: excerpts “The the f of which prospective, rule not is that and will statutes are Ed., p. Maxwell, Interpretation Statutes, 186. 2. 7th Wright, J., Q. B.; Quoted Athlumney, In 3. from re pp. at 551-552. page Quoting Interpretation at from on Statutes Maxwell prejudicially affect chiefly 187: “It is enactment where the would_ impair transactions, con- past or rights, legality vested tracts, been under or the statute, Every has prevails. question rule in acquired away impairs said, or vested which takes imposes obligation, existing laws, a new or creates respect disability transactions duty, a new new or attaches respect presumed, already past, out must be or considerations retrospective Legislature, to have intended to be to the operation.” 642, p. 4. Sec. operation the lan unless have retroactive construed is so clear it will ad guage employed in the enactment construction.”5 of no other mit against retrospective urged objections are The which equal validity apply to with operation new statute of a retrospective operation repeal statute when a of a the legally destroying protected the effect of would have by operation the which have been created interests law-giver; but repealed the “A can be statute. law acquired it was rights under it while have been the which thereby It would an act abso cease. in force do not injustice all the effects which abolish with a law lute to Consequently repeal produced.”6 the case of in it had statute, en existing of an as in the case same an statute, have assumed that courts actment of new give opera legislative retrospective intent was not to clearly tion, contrary indicated unless repealing act. terms of the By Teachers’ Tenure Act of 1927 the terms of the 97, township corporations 1927, p. 259) (Acts school c. scope; the 1933 Amend- its were included within 716) ing p. township (Acts excludes Act c. omitting “any merely by corporations the words school substituting “any corporation” therefor school corporation any corpora- city school town or . . . Amending any in Act of 1933 There is nowhere tion.” express intention of General As- declaration of an Amending give retrospective sembly Act effect. to Assembly repealing enacted act with General knowledge this Court follows the rule that statutes operate prospectively presumed rather than retro- are to legis- ; assume spectively and this Court should that the presumption prevail, this since intent was for lative Quoted v. Zelle Bauer Grocer Co. 172 Ill. from 5. E. 238. 50 N. Construction, Ed., p. Statutory 2d 6. Lewis’ Sutherland nothing contrary appears to the in the And Act. since appears why constitutionality there to be no reason Amending construing imperiled by Act would be operate prospectively only, it to Court this is under no compulsion operate retrospectively construe it to constitutionality. Consequently, order to save its this Court, being compulsion retrospective under no favor operation, general compulsion is under a follow the operate rule that pro- a statute should be construed to spectively any in the absence of indication the Act legislative itself of operate intention retro- spectively. foregoing

In my accordance with the it is belief that Amending Act oper- of 1933 should construed to prospectively, ate unimpaired and to leave privileges township teachers which were ac- quired under prior their indefinite contracts to the ef- Amending fective date of the' Act of the 1933 General Assembly. Amending

ifBut oper- Act must be construed to retrospectively, opinion ate am I of the that it violates Article 24 Constitution, Sec. of the Indiana and Article 10 Sec. of Federal Constitution.

Prior to the enactment of the Teachers’ Tenure Act employment of 1927 the relationship between a school corporation and a governed teacher was by created and legally binding a and was both teacher corporation. and ordinary school contract a was for usually single period; for fixed a term of school. In view of Supremo Appellate numerous decisions and it Courts this state is clear that a such contract car- ried it all the and gen- with duties contracts were, erally. personal such Since contracts for services only remedy a which teacher had case of breach corporation of contract the school was to sue for dam- recovery regulating ages. In the usual rules such suit by applied damages were for of contract breach corpora- often said that school courts. While it was necessarily cause, this for could dismiss teacher tion cases, only meant, that decided have under the could rela- abrogate corporation contractual could its school un- unable or if teacher was with the teacher tions willing This substantially perform contract. his party general merely application rule that one of the an performance of failure of can rescind in case a contract party. by the other creating change method

The Tenure Act did not cor- school employer-employee relationship between changed porations teachers, only incidents but long relationship. As the contract which creates the rela- employer-employee the contract which creates has tionship corporation a teacher a school between corpo-. contract; ripened an the school into indefinite only repudiate the contract and the recourse ration can damages. has But teacher is to sue Section provides swpra,, expressly an the Act suc- remain in force unless indefinite “shall signed parties unless a new contract both ceeded provided the act. This de- cancelled as ..in shall be legal repu- prives corporation of the the school employment permanent contracts of with diate indefinite gives legal con- to the teacher teachers employer-employee relationship tinue in the with the corporation under the terms conditions legal contract. The result is that indefinite the teacher position legally protected a tenure until has the same provisions with the terminated accordance is statute. jurisdiction competent a court of

When decides a that corporation unlawfully has declared the cancella- school contract, legal of an indefinite the factual and result tion cancelled, contract has not been but is that the indefinite the court further is in and effect. And when full force adjudges purporting to cancel the contract that the order aside, teacher rein- and that the should be should be set consequence that position, the factual is stated in her being compelled specifically to corporation the school is em- perform the teacher contract to continue its relationship. ployer-employee short, permanent an a

In under indefinite right legally enjoys enforceable be continued teacher a right equal position valid- in his as a teacher. This is damages ity right of a recover breach with contract; equally the creation of a non-tenure and is present of teachers in contract. There are at thousands permanent not teachers under Indiana who have become employed are under an indefinite contract but period present for a If General definite service. change policy Assembly should decide to authoriz- ing corporations and to to contract with teachers school appointing pleasure; policy of at teachers substitute policy deprive pursuance of and in that should school corporations into of em- to enter contracts teachers; provide ployment with and should further abrogated, into all contracts heretofore entered should be deprive such could it is conceivable that action right damages for teacher of his to recover non-tenure corpora- employing in case his of contract breach carry tion, acting statute, refuse to under such should existing employment contract of in accordance out the equally terms. It seems to writer inconceiv- its with abrogate exist- Assembly an can able General destroy ing thereby valid indefinite contract and legal right inci- legally is tenure which enforceable out, contract; pointed which, as above dent as the of the indefinite contract is as an element essential damages of non-tenure contract. to recover legal quality majority opinion The assumes by its of vitiated the so-called “indefinite” contract is respect only it indefiniteness. But is indefinite to a definite life of the which not limited is time, although period provides Act for a defi- fixed of ending any relation. AT nite method of the contract particular all in the the contract the terms time life of performance are definite. It is true that which affect its changes by provision for mutual is made in the statute teacher, corporation and and for consent of school some many changes But without the consent of teacher. private provisions persons have which contracts between perform- change of in the manner and time authorize ance, supposed provisions and it that such has never been legal quality of the contract. The contractual affect agree- relationship arises a result of the mutual which although legally unimpaired, parties of the ment remains obligations parties may of the the mutual have been original of the terms and con- varied modification grant And if we of the contract. General ditions Assembly the constitutional to authorize has corporations and into a teachers enter contrac- necessarily duration, relationship of indefinite tual fact indefiniteness of duration can follows that itself, qualify not, the contractual in and of the contracting parties. only purpose and effect of the statutory requirement that the contract should continue period setting time is an for an indefinite to avoid arbitrary limit to the time element of tenure. Instead authorizing requiring an indefinite contract the Gen- Assembly might provided have that the last eral period probationary continue for service should legally years; period case ten in which enforceable definitely years. limited to ten would be Whether tenure legally protected and made for an enforceable tenure time, only period a fixed definite indefinite time, legal quality period can make no difference in the of the contract. following support

Numerous of this Court decisions majority opinion: in the “The establishment statement governmental and maintenance of schools is function, jurisdiction in the over which vests General Assembly, power, subject whose to constitutional limita tion, plenary, is and whose discretion is not reviewable. exercise, legislative power by not This is exhausted discontinued, continued or and the schools be another, changed, system system or one substituted Legislature may necessary it or deem as often as the foregoing public the interest.” But the does advisable in Assembly that the not validate the conclusion General legal consequences destroy the of acts which have can performed under the sanction statutes which been giving purpose for the effect to enacted have been respecting system legislative policy the school by system method or devised If the General state. carrying Assembly purpose of for the out its educational policies includes the creation of contractual relations be state, sub-divisions, private persons, or its tween repeal not follow that of the does statute which destroys authorized such contractual relations persons private who have entered into contracts with agencies. pointed or local out in the the state its This is following excerpt opinion Supreme an from Court Mayor, etc., “In rel. Harbach v. State ex Wisconsin7: herewith, 84, 206 held 189 N. W. it is decided Wis. state one of entire field of education this is belonging regulations rather than one affairs state government municipalities. Evi local affairs or to the therefore, the law 1921 ex dently, when State undoubtedly the same effect (although pressly required 442, 445, 188 v. Blied Wis. ex rel. O’Neil 7. State 213.W.N. would provisions have been reached its other such were precise provisions omitted) State on one complying hand and the teachers with the on law other come under should certain fixed contractual obli- gations, lawfully the State cannot now withdraw or be obligations by from subsequent legisla- relieved such tion. engaging teaching

“One in this state and whose paid services are to part by for in whole or in the state school fund officer and his valid contracts lawfully déstroyed impaired cannot by subsequent legislation, because such protec- contracts are within the I, tion of constitution, sec. art. prohibiting Wisconsin passage any impairing obligation law of con- tracts, I, as well as sec. art. of the Constitution of States, prohibiting any the United passing state from any such law.” majority opinion assumes that the General Assem-

bly has the to revoke all licenses of teachers and that, the revocation of tenure teachers’ licenses “would carry of course with it the opin- indefinite contract.” The ion contract, continues as follows: “The like the license upon rests, privilege granted which it a by grace of the sovereign purpose for the promoting good order and welfare the state. The license is broader in its bearing than the contract. Without the license a tenure legislative contract cannot exist. power Since there is to revoke the destroy contract, license and thus there necessarily power must be thing, to do the lesser merely revoke the tenure cancelling contract without license.”

Granting that Assembly the General can revoke all existing licenses and that such action would make inef- present fective teachers, all contracts of it does not fol- Assembly abrogate low that the General existing can all contracts, revoking without all licenses. The decided cases which have held that a “mere license” is revocable pointed all “A the ele have out that license has none of right, contract, ments of a and does not confer an absolute only privilege personal under exist but to exercised ing such as thereafter be reason restrictions and Revoking ably imposed.”8 a license not -does offend against prohibition state federal constitutional against impairment contract; while it is that true contract, contract, neither a tenure nor a can non-tenure exist between one who is not licensed teach and school yet corporation, fact remains that at.the effective date repeal Assembly act the General not had repeal revoked licenses and the contracts affected existing were valid contracts. majority opinion

It is stated in the “The that tenure only statute was upon intended plenary limitation power of local school officials to cancel contracts.” The foregoing justified by statement is not the decisions of this Court if it imply must prior understood to enactment of the Tenure Act plenary had officials abrogate obligations. contractual Prior to the enactment the Tenure Act the school officials have did full discretion in among the selection of from teachers qualified applicants; expiration and at the of the usual one school-term corporation the school legal obligation any re-employ particular no under teacher under new contract. But school officials have any plenary power not had at time to cancel contracts legal they in the sense that could liability end there- under. agree implications

I can with the of the statement majority opinion in the “The like the rests, granted privilege grace license which is a sovereign purpose promoting good for the order and welfare state.” In of a sense all contractual Stone v. Fritts Ind. 82 N. E. 792. grace sovereign, relationship by is of the because only by grace sovereign is of the law attaches rights legally voluntary agree- enforceable and duties to case ments which are denominated contracts. And in the corporations between and indefinite contracts school voluntary parties teachers consent it is the mutual of the although relationship, that creates the contractual legal relationship incidents of are determined governs terms of the statute which and authorizes particular class of contracts. But such a contract is no granted sovereign” privilege by grace more “a of the than purchase is a parcel sale and of a land.

It purpose is evident that the indefinite contract provisions give Act of the of 1927 towas to indefinite legal quality ordinary contracts the of the con- teacher provide tracts which for a definite term of service. And this court has held that permanent one had who become a teacher under an indefinite township contract with a corporation acquired right school had to hold his teach- ing position until indefinite contract should be can- celled in provisions accordance with the of the ofAct right legally that this enforceable. Com- pensated employment thing surely value; legally enforceable to be employ- continued such period ment for even a short of time is such a in- vested destroyed impaired by terest that it cannot subse- quent though legislation, enjoyed even it is under a con- tract which has been authorized for interest. permanent code California has contained provisions many years, tenure Supreme Court length many prob- that state discussed at has application lems involved in various tenure provisions; unequivocally has declared that a tenure enjoys away teacher vested which cannot be taken legislation. by subsequent The view of the California

371 following clearly by excerpts court is indicated the from opinions: its “Assuming petitioner automatically that attained August permanent prior 14,1931, tenure at which repeal time the of 5.500 the sections to 5.502 of Code, occurred, they existed, as School then that part status was lost failure not virtue of on the Legislature adopt, repealing act, the a part the saving Meyer (1933), clause.” Gastineau v. 131 611, 617, 31, App. (2d) 22 Cal. P. 33. “Moreover, the last-mentioned section en- was petitioner acquired acted this after the in case had permanent reason it could no enjoyment by operation law, tenure that and for right way in his the affect vested p. status.” Id. 618. language “The of this subdivision has remained substantially the same from its enactment in 1881 to repeal by 1929, its 303, §10.3). (St. p. School Code of 1929 Education, Anderson Board 126 v. 514, App. 516, 774, Cal. Of (2d) (2d) 15 P. 16 P. 272. course, any previously acquired by tenure re- spondent awas vested and remained unaffected repeal. Meyer, App. such Gastineau v. 131 Cal. (2d) fact, 22 31. prelim- P. In 5 of section inary provisions (St. of the 1929 and continued Code School

p. 1) recognized previously acquired Klein (1934), tenure.” v. Board 1 Education Cal. (2d) 706, 708, (2d) 37 P. Supreme It is not clear Court of California entirely rights relied rule that tenure can not Legislature deciding be divested act of the in language quoted cases in which above was used. clearly recognized legal But the1 court soundness of rights the rule that tenure are vested and are immune legislative impairment. from opinion Supreme

The of Wisconsin Court State Blied, supra, to, ex rel. O’Neil v. has been referred quoted from, and this cited case was later decision holding of the Wisconsin Court9 as “That the status of permanently employed one as a teacher under such a Nyberg 9. State ex rel. Directors School Wis. v. 570-575, 209 N. W. 683. system impaired fixed cannot be with the so by subsequent legislation.” Hall Supreme

In v. Wisconsin10 the Court United States considered a situation which does By seem to differ in its merits from instant case. Legislature, Act the Wisconsin Hall and two others “geo appointed had “commissioners” to m'ake a been logical, mineralogical agricultural survey By governor the terms of Act state.” re was quired to enter a written into contract with each com governor missioner. fill authorized to vacan cies in any the commission and “to remove member for neglect incompetency duty.” day or On the 29th of of 1858, May, gov Hall entered into a contract with perform duties; ernor which Hall bound to his and it “ stipulated that the contract should ‘continue till March, day the third of unless said Hall should neglect incompetency be removed for duty, or of or ... vacancy unless shall occur in his office his own ” act or default.’ part stipulated “On the of the it State was ‘that the compensation Hall shall said receive for his ex- and including penses, expense department his survey, $2,000 at the per said rate of annum. . . . Pro- vided that for such time as said Hall his or assistants engaged prosecution duties, shall not be in the his according the terms of act said and of this made, rata, pro deductiori shall from the sum his ” expenses.’ compensation annual By subsequent March, 1862, pro- Act of Act of 1856 viding survey appointing for the aHall commis- sioner, relating later Act of 1860 the commis- repealed qualification. sion were without Hall sued to recover for his services from March 1862 to March Supreme Court, 1863. The views the United States (1880), U. S. 6,7,10. case, fully applicable present seem to the are dis- which following excerpts opinion (p. from the closed 10): . subject

“In view of the us a sound seems to that legal position plaintiff materially in error was not who, pursuant law, parties different from that of stipulations point time, enter into limited in with a State, erection, alteration, repair public for the or buildings, supply employes or to oc- the officers who cupy fuel, light, things stationery, them with and other necessary reasoning service. same applicable employes way, countless in the same government. under the national startling

“It would be a novel and these doctrine to all government might persons classes of discard pleasure, respective them their employments at because public offices, were hence protection without the rights. “It supposed plaintiff is not to be in error would have employment, turned his back like potential, elsewhere, actual or stipulated and have as he did to serve the State of Wisconsin for period named, if the presented idea had been to his mind that the State had the reserved to break the relation might between them whenever it choose to do so. Nor anything tending is there to show that those who acted any in behalf of the State had such view at that time. All the point facts opposite disclosed the to conclusion parties.” as to both

I do not understand the decision in this case to be upon ground placed abrogation the that the of the in definite police contract was power, although within the appellees the in State ex Kerr, rel. Jones v. Trustee 211 Ind. (2d) 533, urge E.N. “If the social in permanent interest freedom from in contracts public child township government education or in par- is for permanent contracts the interest in

amount to social Legislature proper teachers, in the public school the State, repeal police exercise of the and Indiana Supreme Court of such contracts.” recognize that con the United States Supreme Court power. But subject police obligations are tractual any subjection particular legislative in uphold such say vital social that a able to must be courts instance subjection; such by and that protected is interest in “the interest of paramount social interest is integrity rela security of contractual in the dividual entered, in social interest he or the which has tions into legal general security Further transactions.”11 case, for more, would be unreasonable the instant in health, morals, safety public to assume this Court general by promoted is even the indefinite welfare eliminating their township corporations school policy in of the retention teachers from the tenure view Assembly city policy of that General corporations; and es corporations and town scho’ol pecially has that the Teachers’ this Court declared since policy protecting Tenure Act is based the educational interests the state and that the act general liberally pur- should construed to affect its Law, p. Willis, Constitutional 745. really first, social interest two social interests: “This performance by promisor; in the of a contract . . social interest The first social . important recognized interest was one of the most protected by by what the law of trusts the common law and was contracts, of which have been is known as the law of both throughout enlarging scope constantly growing the cen- in . . turies. . recognized by advantages promised “The social interest in recognition express the United States common law also received impair forbidding the obli- Constitution in the clause the states . n . clause, gation process we have as of a The due contract. . pro- already chapter, to afford in this extended seen has also been contract, so obligation against impairment aof tection that the social interest recog- advantages been promised now has on both Supreme a limitation nized the United States Court governments.” the federal and state legislation large pose it is since which the at interested.12 appellant-relator

The indefinite contract between Dorothy Township Anderson and Chester School was a existing valid, at contract the effective date of the Amending 1933; by Act virtue of that contract acquired legally had relator enforceable position be continued in her of teacher in the schools of Township. my Chester opinion School And in Amending Act, placed under the construction majority decision, 1, violates Articles 24 of Sec. the Indiana Constitution and Article Sec. 10 of law, “The Federal Constitution. under which the con executed, tract was is to only remain the rule which the obligations shall construed. increased, shall not be nor the diminished, any legislation.”13 Act of future Stout, ex Township 12. State Clark v. rel. Trustee (1933), 58, 64, 267; Township

Ind. 187 N. E. Whitlatch v. School Milan (1935), 75, 198 209 Ind. N. E. 87. Brackenridge 13. Lewis v. 1 Blackf.

Case Details

Case Name: State Ex Rel. Anderson v. Brand, Trustee

Court Name: Indiana Supreme Court

Date Published: Jan 14, 1937

Citation: 5 N.E.2d 531

Docket Number: No. 26,560.

Court Abbreviation: Ind.