*1 TRACY, R. CLAUDE Appellant,
Plaintiff vs. THE NO. IN COUNTY OF
SCHOOL DISTRICT WYOMING, AND STATE OF SHERIDAN Respondent. Defendant (No. 2538; 1952; (2d) 932) May 13, 243 Pac. *3 plaintiff appellant For the cause sub- upon mitted the brief R. G. Diefenderfer of Sheri- dan, Wyoming. respondent
For the defendant and the cause was sub- upon argument Henry mitted brief and also oral Burgess, Sheridan, Wyoming. A.
OPINION Riner, Justice. brought by
This plaintiff, action Claude R. Tracy to recover the balance claimed to be due him as a
6 Clearmont, from Sheri- public of schools in the teacher Wyo- of in the State County District No. School dan designated as the de- ming. District That School usually fending plaintiff hereinafter will party. The The defendant his surname. to so—or referred brevity will also and for convenience district school respondent as usually defendant or as the be mentioned designated appeal. on this it is alleging petition after that “at all amended Plaintiff’s a the defendant was mentioned” hereinafter times existing organized duly and under the district school is, was, plaintiff that the and still and of this State laws in said State duly qualified1public school teacher a authorizing certificate therein of a school and a holder high said defendant at in the school to teach of him Wyoming, Clearmont, which certificate “has never been effect,” in full force and avers as and is annulled still follows:
“II day March, “That, the the the 23rd of on or about into, and with district made entered defendant figures writing, and plaintiff, contract words a follows, to-wit: CONTRACT ‘TEACHERS Public Schools Clearmont 22 District No. School County Sheridan Clearmont, Wyoming day March, Agreement 23rd of entered into this This County, 22, Sheridan District No. between School Tracy qualified Wyoming said R. teacher of and Claude County and State. agrees Tracy R. the said Claude Witnesseth: Schools, in and Public a faithful in the teach Clearmont nine months for the term of commenc- manner efficient ing agrees day September that he 1950 and 5th on herself, himself, qualified keep and observe regulations rules of Education of Board District, Superintendent the Clear-- said! and of the agrees Tracy Public Said R. mont teach the Schools. Claude grades assigned subjects the Board Superintendent Education and the of the Clearmont given being to the Public Schools—due consideration qualifications of said teacher. *6 thereof; No. 22 said School District consideration the In agrees Tracy $3,000 pay, sum of Claude R. the said year Dollars) per school (Three and thousand no/100 monthly Payments nine in said be mad'e services. Tracy places first at the payments. the If Mr. team Tracy Tournament, Mr. will receive said $50 District in regular salary. addition to Tracy shall be that in ease the said Claude It. Provided discharged just (as prescribed for sufficient and cause Wyoming or by by Law) State the District School Board; annulled, he have shall shall his certificate any compensation and after such from entitled to not be or annullment. dismissal Whereof, our names hereunto subscribe we In Witness d'ay March 1950. 23rd this Tracy,
R.C. Teacher. Huson Mae Chase
Clerk
Bryant H. Ellis
Director Roebling
Arthur
Treasurer.’
“HI therewith, plaintiff com- “That, in accordance High defendant in the School said menced teach began or on opening the term which at the district so in all September 5, 1950, to do and continued about respects he dis- provided in until said Contract through acting defendant, its charged by following Trustees, 2,1951, April on under Board of 8 circumstances, 27, to-wit: or On about March he received from the defendant, School Board of the
through registered mail, signed personally a letter each of district, the Trustees of the defendant a true copy of follows, which letter is as to-wit:
‘CLEARMONT PUBLIC SCHOOLS
School District No. County Sheridan CLEARMONT, WYOMING
March Tracy Mr. Claude Russell Clearmont
Wyoming Tracy,
Dear Mr. regret It is with Due to the that we have come to this decision. happenings days, especially last few drinking boundry within the (boundary) of the offering Schoolhouse and also students, such to the we justified feel that we are know, our decision. You Tracy, Mr. very as well as do that we bad and *7 absolutely cannot be allowed. you think, yourself, Don’t the thing you the best and School, you would your resigna- be for to offer us tion, immediately. effective again you very We assure sorry we are to have to do you this and if would like to meet with us and talk things very glad over we would be to do so. very truly,
Yours SCHOOL BOARD DISTRICT 22 NO. Myers H. D.
/s/ Director George Schuman /s/ Treasurer Mae Chase Huson /s/ Clerk.’ Board, plaintiff but not with said “That this did meet 2, 1951, until, April he dis- on continued teach charged other further notice said Board without signed by letter all of said Board members than plaintiff date, copy a true of which on said delivered said letter 2,1951, April as follows: SCHOOLS ‘CLEARMONT PUBLIC SHERIDAN COUNTY
CLEARMONT
WYO.
April 2, 1951 Tracy Mr. Claude Russel
Clearmont
Wyoming Tracy,
Dear Mr. your notify you here services at school is to This Therefore, you 2, ended, April 1951. will are stay away please leave the school from the school grounds and the school. your you cover serv- warrant will find our Enclosed ices to date. truly, very Yours DISTRICT NO. BOARD
SCHOOL Mae Chase Huson /s/ Clerk Myers H. D. /s/ Director George Schuman /s/ Treasurer.’ ENCL. “IV “That, than the said letter dated March other charges from said no notice of plaintiff received *8 hearing any any nature, present at Board, nor was he of accepted letter Board; plaintiff the said said that before discharge 2, his 1951, notice of his from April as a employment complied under said contract there- and although ready, willing with and he was able and perform was contract, his d'uties as a teacher under said he discharge; so unable do reason of such that paid plaintiff, defendant district has to the under contract, monthly
terms of said seven installments of agreed $3,000.00, compensation his eighth services an annual April 2, plaintiff’s installment as of up date, leaving owing plain- that due and contract, defendant, tiff from under said a balance $534.00, pay. all of defendant which the refuses to
“V “That, by reason of the facts and’circumstances herein- out, above set defendant district is indebted to plaintiff from $534.00, in the sum of with interest thereon April 2, 1951.” prayer pleading The plain- aforesaid was that judgment against tiff have the defendant in the sum of per with thereon at from interest annum $534.00 7% together April judgment his 1951 to the date with costs herein incurred. general pleading interposed
To this the defendant petition demurrer “for the reason that not said does state facts sufficient to constitute a cause of action.” The cause was to the submitted District Court of Sheri- County upon petition dan the amended and the de- murrer set above forth with the result stated judgment form that: Court’s ORDERED, “IT IS HEREBY the said Demurrer be, the hereby sustained, and the same is to which Order plaintiff excepts, exception which the Court allowed. “Thereupon, plaintiff plead further, refused to consequently: ORDERED, “IT IS HEREBY ADJUDGED AND DE- nothing by plaintiff that the take CREED his Amended Petition, herein, filed and that the defendant have and plaintiff herein, recover of and from the its costs which
11 judgment the , hereby taxed at none to which are $ plaintiff excepts, exception is allowed. which October, day COURT, IN this 26th “DONE 1951.” OPEN two cases come before This court has heretofore had in it teachers were in which the dismissal of school controlling were facts volved, the which in neither of However, those at the case hand. similar to those in principles which should very fully the reviewed cases character. disposing cases of this kept be in mind 2 of No. District Those cases were: Durst v. School 442, 450, County, Wyo. 449, Pac. 675 273 39 Niobrara County, 25, Fremont District No. and Baird v. School quoting Wyo. case In the Durst 41 Pac. 308. 287 Hays Ind. City of Crawfordsville v. from case accept agreements implied teacher of a where any given ing employment are a teacher in school” “as language exhaustively set forth: listed necessary implica- agrees, think, as we a “He also employment, his tion, that while he continues in such exemplary and respects in all be conduct shall moral beyond just reproach.” that if the teacher points out then Indiana Court The fails: “* * * resting upon obligations him as perform arising express terms teacher, from the whether such of his necessary implication, has he contract or the agreement are part, trustees and the on his
broken employ- clearly from such to dismiss him authorized ment.” elaborately supplementary considered
A and more supra. appears in the Baird case of school law discussion 460): (p. it is that There said in the hold majority the courts seem “But permitting removal at a contract of a statute or
absence hearing justice require that a pleasure, principles of given sought party should be had’ after notice to the (Citing cases). assume, removed. And we shall purposes case, that, of this in any effect, order make hearing decision of the school board of ** *” -upon notice, necessary, principle announced and noth- We reiterate the thus ing announcing herein should be construed as a con- trary rule.
Quoting Kelsey District, from the case of vs. School 453, 26, 27, 84 Mont. 276 Pac. there was used in the (p. 463) language: Baird case “ ‘That the courts will not interfere with the discretion of school officials matters which the law has con- ferred judgment, to their unless there is a clear abuse discretion, arbitrary action, of that or or unlawful holding seems to be the unanimous of the authorities.’ Ingersoll ex State rel. Clapp, 200, v. 81 Mont. 263 Pac. 433.”
The proceeds Montana thus; Court then “ ‘It is for education, the board of within the reasonable power exercise of its discretion, say to what is best management for the successful and cond'uct of the * * * schools, respect and not for the courts.’ In employing discharging say, we teachers as was said Board, supra, (73 442, in Peterson v. School Mont. 236 670) this, Pac. ‘In questions properly and all like com- ing them, before the members of the act in board a quasi-judicial capacity, and, proper with exercise of judgment, their discretion and the courts will not inter- ” fere.’
Interpreting the supra, Durst case in the above men opinion (p. tioned 466 case) in the Baird this was said: “* * * we held in the Durst power case that to employ implies power discharge. to Additional District, authorities are: Tadlock v. School 27 N. Mex. 250, 199 1007; Pac. District, Wallace v. School 50 Nebr. 175; Abbott, Corp., 3 true, Mun. 2430. That is we think, particularly 2330, Wyo. in view of Section C.S. (Section 67-103, 1920 1945), appears W.C.S. which
13 the school give matters control of school unlimited affecting board's, providing: matters ‘Educational district the care be under shall school district analogous to principle is The of school trustees.’ board namely, held, universally that apparently one similar it the appointment carries with power to an office restricted, unless remove, or power limited or unless 562: É.C.L. is fixed statute. C.J. the term every contract part of much a rule of law is as That expressed though or it were employment of teachers therein.” referred to touching 467) (p. case in the Baird
It was also said mentioned: the case last may case, “According of a teacher removal to the Durst may assume, only cause, as heretofore and we only upon and a hear- notice stated, it should be ing.” relating procedure to a teacher
Relative to removal case Board the Baird under contract with a School (p. 469) states:
when the occasion ferred necessary “No It is held that ing authorities.) power provision as incident to effectuate may adopt * * [*] as to the method of in such case the thereto, arises, the its has been and own power in that power procedure.” made removing event removal is adopt our statute. the remov- teachers, (Citing means *11 con- question in are proceedings here of the character “But they remedial, good penal; are authorized the rather than punishment, and public and not as service of the procedure.” governed by court the strict rules of are not Quoting District v. case of School from the Colorado language 513, 526, 511, Shuck, this 49 113 Pac. Colo. supra): case Baird (p. 469 of the was set forth: “ pleadings and trial no formal need be there ‘While of court and formalities the rules the with board before accusation, specific good means procedure, cause shown its charge in the board before notice, evidence capacity, opportunity
official
and’ an
to
teacher to
the
”
charge.’
be heard and refute the
Rejecting
specific
the claim
made
sometimes
that
charges writing
necessary
in
are
even where the statute
like ours
on
People
is silent
ex
matter
case of
82, 90,
Campbell
Super.
rel vs.
50 N. Y.
was credited
Ct.
declaring:
(at page
case),
with
in the Baird
“
gov-
exposition of
‘Under
the law
this authoritative
erning
being
bar,
requirement
at
and
no
case
there
concerning
pro-
that
posed
the conversation shown
the information
the cause of the
writing,
must
in
it
that
removal
be
must be held
preceded
to
the return
have
May 15, 1833,
the service of the formal notice on
con-
veyed sufficient information to the relator of the cause
proposed
of his
removal and constituted a sufficient
opportunity
question
explanation;
to him to make his
that as no
respect
then
was
and
in
there raised
right
represented
counsel,
right,
to be
such
ex-
if it
”
all,
isted at
waived.’
This court
remarked that:
thereafter
charge writing,
“In the
at
case
bar there was no
though
would, perhaps,
it
that
be better
follow
course, we d’onot believe that
one of
to be
the essential
things necessary
hearing, provided
for a fair
the
the
person sought
fully cognizant
to be removed
alleged cause for removal.”
duty
Relative to the
a teacher
conduct himself
properly
viewpoint
from the moral
said
was also
page
at
Baird case
472:
City
“It was said in
Hays,
Crawfordsville v.
42 Ind.
200,
agrees ‘by necessary
that a teacher
implication,
that while he
employment,
continues in such
his moral
conduct,
respects
shall
in all
exemplary
beyond
just reproach.’
merely good character,
And not
but also
good
greatest
reputation
is essential
usefulness
position
Bourne,
in such a
Freeman v.
170 Mass.
49 N.E.
15 living by right him principles be importance that the by by example his conduct.” his and instilled them into following taken, position Supporting the thus language excerpted case School District from the 471, 14 case): Maury (p. Baird 473 vs. 53 Ark. S.W. “ competent necessarily implies he is that contract ‘This himself in a conduct properly, that he will to teach discharging under his and skillful manner moral either, takings. he violates not do If he can not or will through his comes and its termination the contract every say act of im that do not mean to breach. We morality justify contract a breach of the would be whenever, termination; from it such its but would be act, impaired notoriety it the character or instructing properly or ad services of the teacher vancing might instruct, properly pupils. A teacher notoriously yet morality bad his character for be so respect pupils and fail to that he would lose the of his competent then a advance them. He would not teacher, be learning though or no defect in his were there ” facility impart it.’ by Hamil text, Education The Law and Public In the (page 358): it is also said1 ton and Mort relationship the teacher and his peculiar between “The highly important that the char- pupils that it is is such reproach. It is well set- the teacher above acter of be may therefore, tled, be dismissed for that teacher Appeals immorality Kentucky the teacher followed ment which The Court of or misconduct. regard parents pupils has said both might exemplar as an whose conduct be by necessary pupils, and the intend- his law engage in conduct demands that he should not suspicions would invite criticism and of immoral- ity. 24). although (Gover al., Ky. 172, (2d) et v. Stovall 35 S.W. immorality, charges reputation for of or Even might proof, removal. Not in some supported full not merely ground cases, good sufficient good' reputation is essential to the character but greatest in the schools.” of the teacher usefulness *13 position appellant The of the relative to the letter of 27, 1951, the Board under date of March to addressed Tracy, Mr. is thus stated in his brief: “It slight- does not seem to the writer that there is the any any est of semblance notice of kind contained in letter, certainly charges said tiff did against plain- no the plaintiff that are set out therein. any It is not stated the drinking complained that offered the or he nothing anything fact, to the students whatever is said in the letter in drunk students, all the letter to drink. In regard had to what been upon premises the or had been the offered' to guess and one what has to at meant. For was discloses, liquid might consumed have Cola, 7-Up, been Coca or even water.” respondent replies
To this statement as follows: drinking schoolhouse, “Here a teacher had been in the had so saturated with become alcohol as to fall into a state of senselessness in front of his class which neces- teachers, allowed, sitated his apprised removal other he was that his conduct could not be and he was asked resign, to give or in lieu thereof the board would him opportunity heard, plaintiff an and the to be neither resigned nor heard. No defense to asked to be such offer, plaintiff peti- base conduct could tion he fails to board offered him an and ‘talk and even in his deny guilty he was thereof. The school opportunity to meet with them things receipt over.’ His silence after of the deny letter of March 27 and his refusal to the conduct charged by any allegation in that letter of this Amended speaks eloquently Petition matters therein most of the truth of the charged. The circumstances were such opportunity as to afford him an speak act and freely.” In Dictionary Webster’s New International we find “drinking” given the word following specific mean ing practice drinking “the intoxicating liquors Tracy charged excess.” In other words with drunkenness in the school house of the district undoubt edly presence in the of his students. When the defini unabridged tion dictionary above set forth from the in the letter aforesaid construed with the statement is * “* * know, Tracy, we that Mr. as well as do that You very absolutely cannot be allowed” bad and reg recipient be of the there can little doubt personally to him knew istered mail letter addressed charges preferred perfectly well character against him, yet petition filed in this neither his by any nor action communications sent to the Board attempt say respondent, did he even Trustees of the charge deny anything its or undertake about inquired would be the nat it what truthfulness. Let *14 qualified person, teacher ural reaction of a normal a receiving grades, upon higher such teach in the school charges which of this character— a letter contained regarded entirely recipient the which false clearly proved. which could so are inclined We immediately that he either sent a let think would have denying the in ter to board uncertain terms the no falsity charge body the or called member of that each ’phone stating the after denial of over a the truth charge “I would1have said: forthwith shall be your you glad up to take offer with and meet and dis fully.” simply He He neither. dis did cuss the matter teaching regarded finally until the and continued letter discharged, teacher, in the Clearmont School. as a says: 301 1540 C.J.S. § exception a or sustained. demurrer held that “Demurrer When usually exception it sustained or has been presumptions in reasonable will favor the all be made sufficiency against propriety and d'emurrer and to, pleading most demurred which will be construed against strongly pleader, particularly he where re- amend, that which case it will be assumed fuses to facts in justifying exist.” amendment do not an Evidently than inti- matters other that were there charge against Tracy mated in the made Mr. in the aforesaid would school board’s letter which doubtless have open hearing been discussed at an before board' says: for the letter aforesaid happenings “Due to the days” of the last few “especially and then adds drinking boundary within the of the school house and offering such it to the students” would seem that acting only board was for not the best interests of the Tracy school but Consequently, those of also himself. you think, yourself, the board asked: “Don’t the best thing you School, you and the would be for to offer your resignation, us immediately?” effective In other thought words the board' the teacher would be injury reputation by more free pursuing from in his openly course than to have these matters discussed notwithstanding they immediately expressed thereafter willingness Tracy to have come before them and “talk things grant over” short, with them. In him a full hearing on the matter if he desired it. may
It be observed from what has been set forth respondent’s above that brief makes some statements precisely which are not perhaps embodied in the record but it is 1448, 1449, stated in 3 C.J. Section 1610 that: “Corrections or appel- additions the statement in brief, suggested respondent’s lant’s puted brief and not dis- reply brief, true, in a will be taken as and where appellee’s it is stated in brief that no claim was made *15 respect of court, certain matters in the lower which by statement appellant, not controverted it must be taken as true.”
We observe that in Magnolia Chenowth Bros. v. Pe- Co., al., hearing sought troleum et (Tex. at App.) Civ. (2d) 446, 448, 129 S.W. the court said: “ ‘The uncontroverted statements in defendants’ brief Henry Dannelly, plaintiffs’ show that predecessor G. in title, any did not own or have in interest the lands over sought which opened, the street is to be at the time he joined in mentioned; the execution of deed above * * *’
19 “Appellants challenged ap- neither the correctness of pellees’ reply, they challenge statement in a nor do its time; at position correctness that, their seems to be correct, authority accept the Court was without as unchallenged statement. * * *” “We overrule that contention ...
The case of Horosko School v. Dist. of Mount Pleas- Tp. 369, (2d) 886, ant 868, 869, 335 Pa. 6 Atl. exactly where appeared the facts were not as have in Supreme case at bar but where the Court of Penn- sylvania very succinctly expressed its view to the powers granted a school board even under the Teachers’ appeal Tenure Act of that appel- State. The before the late Court, court was Superior from an order of the (135 Super. (2d) 601, 604), reversing Pa. Ct. Atl. an order of the Common Pleas Court which had affirmed discharging the action of the school board in a teacher public township. schools of the The State court only pointed of last resort out that the valid' causes for by termination of a contract held teacher with the by school board established the State statute were among “immorality, incompetency others: and intem- (24 perance” (a) ). P.S. Section opinion Supreme Pennsyl- From the Court of following: vania we take the “Difficulties between this teacher and the had board existing grew
been with some time and out of her conduct respect by to a restaurant maintained a man whom August, 1936, during she married in the course of the period involved. In this restaurant beer was sold and a pin-ball and' a slot machine were maintained and dice played. were The restaurant was across the road and twenty about one hundred and In five feet from the school. opinion judge, trial filed the learned he said: “ (1) ‘The evidence the case is that Miss While Evelyn used and she Horosko was known the name of in fact Horosko married to one William Con- (2) nors and lived with him as his wife: That the said *16 and proprietor a lunch room beer the of Connors was and, garden Evelyn acted' as waitress in which Horosko being per- occasion, bartender, services as such on during the vaca- after school hours and summer formed tion; (3) garden presence in That in this and the beer tutoring, (a) pupils of her she of several whom she was beer; (b) beer to served drink of occasional took an drinks; customers; (c) dice with customers shook pin-ball play a to played, customers how (d) and showed further, that she was premises. And the
machine on rated County Superintendent Howell, of by A. H. Depart- rating provided Schools, card the the under rating Education, competent, of a ment of being 50% 43% average rating. “passing” or the “ intemperate, conduct immoral or Ts such a course of it—in and effi- connection with her scholastic and does ciency rating incompetency? it to to holdWe —amount meaning that, and be evident the intent under self immorality essentially act, to a devi- is not confined morality; may con- sex be such a course ation it from community a duct as morals is offends sup- youth a teacher is example whose ideals to the bad intemperance Nor need posed to elevate. to foster overindulgence strictly in alcoholic be confined moderation, person implies and a liquors temperance — being intemperate conduct without an alco- may in be it, incompetency; as we take And addict. so as holic incompetency as a teacher— under the Act this means competency merely the abil- mean that but does this ity (Italics supplied.) R’s?’ to teach the ‘Three ‘just’ (the that it word used “He concluded would (j) 1205) of section to affirm the action of clause school dismissing board teacher.” opinion it Thereafter in the of that court observe we is said: prepared say judge are not erred in “We the learned concluding shaking with cus- the teacher’s ‘dice showing play pin- them how drinks’ and
tomers for ball ported children, sup- presence of school machine in the finding incompetency in the circumstances shown.” *17 opinion supervising
The of the ultimate court of the State concludes: circumstances, therefore, “In the we must conclude ‘just’. order made in the Common Please was Superior “The order of the Court is reversed and that
of the Common Pleas is reinstated.” Supreme The Court of the United States declined to upon petition review this decision for certiorari filed. (Evelyn Horosko, petitioner, A. v. The School District Township al, of the of Mount Pleasant et 308 U. S. 60 SC 84 L.E. 465.) very
After a exhaustive and careful review involving cases dismissals of teachers under statutes discharge “good allow cause,” School Boards to Iowa Law Review 162-4, declares that: “most courts have considered” of actions this kind i.e. removal of teachers, by a School Board to be “an executive function subject only discretion,” to review for abuse of and the commenting article in the Review reaches the conclu- sion that: spite given “In the freedom school boards majority jurisdiction, public policy supports sound handling problems exclusively by school school managed Schools are better committees. boards of juries than education or courts.” District, supra.
See also Baird vs. School We think that the school boards of this common hampered1 wealth should not be in their efforts to check any improper part conduct on the of teachers whom they employ right to teach and to foster ideals in the by parents students entrusted to their care for the greater part day. of each school At the same time these fairly justly must boards deal with those teachers any question and when arises as to their fitness present proper examples youth standards of for the teacher should be into their classes the
who come given charge impugning any his promptly notice of along opportunity an to be those lines and character right given present all evidence heard with negative may or tend to and which the teacher’s behalf against charges any him. explain such the district court conclude that In case at bar we upholding County the action did not err of Sheridan affirming 22 aforesaid. An order District No. School judgment be entered. should its
Affirmed. *18 C.J., Ilsley, J., Bluime, concur.
ON PETITION FOR REHEARING
(August 1952; 153) 247 P2 support petition rehearing the In for was a there appellant by for R. Sheri- brief G. Diefenderfer the dan, Wyoming.
OPINION FOR REHEARING ON PETITION Riner, Justice. petition appellant
Counsel for filed a in this case has rehearing, being for the dissatisfied with result court reached which affirmance action of was an County, Wyoming, the district court of Sheridan client, R. entering judgment against Claude counsel’s plead upon after Tracy, to further latter’s refusal his amended a demurrer the court had sustained petition. rehearing petition support for a
The brief in appellant’s appearing in statements as usual reiterates duly original were considered this brief and which prior opinion filed in this to the rendition of court rehearing case, petition now which attacks. again. unnecessary these matters to review It is disregarded Complaint made that court its holding necessary file that it was for counsel rules *19 dispute charges respondent’s reply to made in a brief drinking Tracy in conduct intoxicat- the of brief ing liquor has excess. It would seem that counsel original opinion purport misinterpreted of the the requirement that was announced in No herein. such opinion was the opinion. point by the that The made hearing charge time of the oral was not denied. At the court, ample opportunity was afforded coun- before respondent’s deny any in of statements truth sel to the brief he He which deemed not in accord with the facts. opportunity. avail failed to himself that As a matter Tracy’s petition rehearing fact even in now a charge flatly before us the is not denied. What was said respondent’s in brief merely an elaboration of the charge contained in the School Board’s letter of March 27th, Tracy’s petition 1951. amended itself to which sustained, stated, the demurrer was as above did not allege charge in the letter that Board was allegation easily untrue. This could have been inserted pleading naturally in that and would have been if it were based on fact.
Again charge quoted as to the in that letter in the opinion filed, Tracy heretofore could also have met it by pleading upon being sustained, further the demurrer filing an petition amended which denied truth of the gone allegation, supported to trial and his denial proof open in court. This he also declined to do. As pointed original opinion in the out herein where re- pleading may fusal amend a is made court as- justifying that the facts sume an not amendment do exist. points petition rehearing
Counsel out his for a that very many telephones Clearmont, are Wyo- there not ming, being community. it say a small He does not that telephone, no member of Board had a or that building one, School was without appellant or that wrote a Board wherein he denied letter to the the truth charge disregarded letter was or his that he personally they contacted the members re- Board deny any He not fused to listen him. does one communicating his of several methods views to the adopt that he fit to Board were available and saw none of them. *20 hearing really Tracy there formal desired a had
If easily His it. obtained have no he could can be doubt not want one. he did disclose and out of court actions unjust was reached an result feel that do not We Board, district court of either matter through Wyoming, County, or this court Sheridan opinion above been said from has It results what filed. rehearing petition be denied should for a that the entered. should be that effect an order to Denied.
Petition concur. J. Ilsley, C. J. Blume,