State ex rel. Thompson v. Board of School Directors
191 N.W. 746
Wis.
1923
Check Treatment
Eschweiler, J.

By her continuous service as teacher in the city schools of Milwaukee from 1914 the relator had aсquired a .position and standing under the law regulating the tenure of office and the teachers’ retiremеnt fund that was of value to her. State ex rel. Murphy v. Board of Trustees, 168 Wis. 238, 169 N. W. 562. This she would necessarily lose, or at least place in serious jeopardy, if her services as such teacher could be permanently suspended as was attempted tо be done by the action of the school board here in question.

The only power the board of school directors had to dismiss the relator as found by the court, and none other is claimed here, was undеr its own rule or article XVII, quoted above; whereby the board, by majority vote, upon report by its committee on complaints, might dismiss a teacher for misconduct, incompetency, inefficiency, or inattention tO' duty. Manifestly the situation here presented was one where, if the dismissal ‍​‌‌​‌​‌​​​‌‌​‌‌​​‌‌​​‌‌‌‌​‌​​‌​​‌​​​‌‌​‌​​​‌​‌‌​‍can be supported, it must be by reason of something the relator did or failed to do amounting to either misconduct or inattention to duty. It сlearly was neither of the other two stated grounds for dismissal, viz. incompetency or inefficiency. Such а dismissal cannot be at the mere pleasure of the board, as was the case under express statutory power to that effect given the nornial school board as found in Gillan v. Board of Regents, 88 Wis. 7, 11, 58 N. W. 1042.

Assuming for the present dispositiоn of this case that the rule adopted by the board of school directors in January, 1921, relating to the trаnsfers, promotions, or permanent appointments of women teachers who- are married and the name that such teacher shall be known by on all' school records and printed matter is a valid regulation, the validity *289whereof, however, we do not now determine, nevertheless we feel constrainеd to hold that the facts as presented in this record will not and do not support a finding that there was eithеr misconduct or inattention to duty by the relator such as warranted the severe penalty inflicted by the determination of the school board in this particular instance.

There is no showing of any wilful or intentional flouting of the authority of the school board by the relator and no showing of any harm having arisen by reason оf her failure to immediately notify the school board of the change from her status as an unmarried to thаt of a married woman. The rule itself was silent as to how soon after such a change the fact of suсh change should be reported. There is no showing that any particular printed matter used by the schoоl board in the administration ‍​‌‌​‌​‌​​​‌‌​‌‌​​‌‌​​‌‌‌‌​‌​​‌​​‌​​​‌‌​‌​​​‌​‌‌​‍of the school affairs needed to be or would have been changed if the fact of such marriage had been immediately reported, it then being in the midst of the current semester оf school work. The entire record of this transaction is here before us and it is barren of anything indicating any harm or damage actually done in the administration of the school affairs, to school discipline, or control, and in the absence of such showing we cannot assume that there was -anything else.

Giving, as wе are in duty and by inclination bound, full value and due deference to the determination of such an administrative body as is the school board here, charged with the delicate and vitally important duty of controlling, managing, and regulating the conduct of the schools, its teaching force, and its pupils in its discharge of the imрortant governmental duty, and as has heretofore been repeatedly recognized as due to such body as in such cases as State ex rel. Beattie v. Board of Education, 169 Wis. 231, 234, 172 N. W. 153; State ex rel. Dresser v. District Board, 135 Wis. 619, 628, 116 N. W. 232; Curkeet v. Joint School District, 159 Wis. 149, 149 N. W. 708, yet we are compelled to here determine that the school board did not *290have any sufficient grounds to justify and warrant it in dismissing and discharging the relator. This view is sufficient to support and uphold ‍​‌‌​‌​‌​​​‌‌​‌‌​​‌‌​​‌‌‌‌​‌​​‌​​‌​​​‌‌​‌​​​‌​‌‌​‍the conclusion of the trial court in this regard and renders it unnecessary to consider or deсide many other questions presented and argued.

Appellants complain of the allowancе by the trial court of the sum of $250 for the' services of her attorneys in conducting the present litigation. That objection is well taken. We can find no warrant for the allowance to the relator of such attоrney fees. It is not expressly provided ior, and not, we think, by implication, in sec. 3453, Stats., providing for the awarding of damages and costs upon judgment in relator’s favor in mandamus proceedings. This statute was considered in the case of State ex rel. Bautz v. Harper, 166 Wis. 303, 310, 165 N. W. 281, and it was there held that no damages could be properly awarded to a relator ‍​‌‌​‌​‌​​​‌‌​‌‌​​‌‌​​‌‌‌‌​‌​​‌​​‌​​​‌‌​‌​​​‌​‌‌​‍upon an insufficient return by a public officer in a somewhat similar mandamus proceeding. That such attorney fees in the very litigation are not a proper element to bе recovered, in the absence of express statute, has just been declared in the case of Weinhagen v. Hayes, ante, p. 62, 190 N. W. 1002.

The relator has presented her objection to the deducting of the sum of $150 which was earned by her during thе school year of 1921-22. We do not deem it necessary to discuss the evidence on that branch of thе case or to say more than that we are satisfied with the trial court’s disposition of that matter.

' The nature of the relief prayed for and granted made mandamus a proper remedy. It follows therefrom that the trial court was correct ‍​‌‌​‌​‌​​​‌‌​‌‌​​‌‌​​‌‌‌‌​‌​​‌​​‌​​​‌‌​‌​​​‌​‌‌​‍in the results reached in this matter, except as to attorney fees.

By the Court.- — -Judgment modified by disallowing the sum of $250 attorney fees, and as so modified affirmed upon the grounds stated.