Opinion
Nos. 30042 and 30043
Decided March 21, 1945.
Schools — Teachers Tenure Act — Mandatory duty of board of education to enter into continuing contract, when — Section 7690-2, General Code — Board of education liable to teacher for salary for school year — Upon refusal to execute continuing contract or assign teacher, when — Retirement became effective at end of current school year, when — Section 7896-34, General Code — Judicial notice — School year 1941-1942.
1. By virtue of the provisions of Section 7690-2 (now Section 4842-8), General Code, it was the mandatory duty of each board of education to enter into a continuing contract on or before September 1, 1941, with each teacher who on that date was the holder of a professional, permanent, or life certificate and who on June 2, 1941, was completing five or more consecutive years of employment by such board.
2. Where a board of education failed and refused to enter into a continuing contract with a teacher possessing the qualifications prescribed by Section 7690-2, General Code, and further failed and refused to assign such teacher a place to teach, thereby depriving the teacher of employment during the school year 1941-1942, the board of education is liable for the amount of salary the teacher would have received for that year had the board complied with the provisions of the statute.
3. Where a teacher, because of the failure and refusal of a board of education to comply with the provisions of Section 7690-2, General Code, subsequent to September 1, 1941, filed an application to retire, such retirement, by virtue of the provisions of Section 7896-34, General Code, became effective, as of the end of the school year then current.
4. By virtue of the provisions of Section 7896-1, General Code, the school year 1941-1942 commenced on September 1, 1941, and ended on August 31, 1942. Hence, where a teacher, subsequent to September 1, 1941, filed an application to retire, such retirement became effective on August 31, 1942.
APPEALS from the Court of Appeals of Mahoning county.
These two cases originated in the Court of Common Pleas of Mahoning county and resulted in judgments in favor of the plaintiffs. There is no dispute as to the facts.
In the Poehls case, No. 30042, the facts are as follows:
The plaintiff, a teacher, brought her action against the Board of Education of the city of Youngstown to recover salary for the school year 1941-1942. Prior to 1941 plaintiff had taught in the public schools of that city for a period of more than thirty-five consecutive years and was the holder of a life certificate to teach in the schools of this state. The plaintiff prior to the beginning of such school year presented herself to the defendant board and requested a teaching assignment and was notified by the board that it would not reemploy her. Under date of August 25, 1941, the teacher made application for retirement to the Retirement Board, State Teachers Retirement System, and therewith transmitted a letter which reads as follows:
"Youngstown, Ohio
"57 Pasadena Ave.
"Aug. 27, 1941.
"Geo. M. Pogue, Sec.
"State Retirement System
"Dear Sir:
"I am sending a formal application for superannuation retirement. I may want to withdraw it because of the new tenure law. So will you please accept it without the notice of [to] our clerk of board of education. I know this notice would influence a decision against my being hired. I have refused to recognize their letter asking for my retirement.
"I want my job, but since it is uncertain, will you kindly advise me how to protect myself against losing my year's pension which starts the last of September.
"Thanking you, I remain
"Very truly yours,
"Louisa Poehls."
On September 27, 1941, the retirement board sent plaintiff a letter which reads as follows:
"September 27, 1941
"Miss Louisa Poehls,
"57 Pasadena Ave.,
"Youngstown, Ohio
"Dear Miss Poehls:
"In accordance with your request, the retirement board deferred formal action upon your application for retirement.
"When you decide whether or not to retire, please notify us promptly. If you are to retire, the effective date will be August 31, 1941, and the first retirement allowance check to be issued will cover the period from September 1, 1941, to the date of issuance. If you are not to retire, you must withdraw your application.
"If it develops that action must be taken by the retirement board, you will be duly notified. At the present time, however, it appears that a reasonable time may be taken within which action may be deferred.
"Very truly yours,
"Geo. M. Pogue,
"Secretary."
On October 2, 1941, plaintiff sent the following letter to Geo. M. Pogue, secretary of the Teachers Retirement System:
"Youngstown, Ohio
"57 Pasadena Ave.
"Oct. 2d, 1941
"Geo. M. Pogue, Secretary
"Dear Sir:
"I am sending you my final decision to retire.
"Awaiting my first allowance check at your earliest convenience and thanking you for your patience and your courtesy, I remain
"Yours very truly,
"Louisa Poehls
"Membership No. 26023."
In October 1941, she received a check from the retirement board for $94.77 and thereafter each month she received a check for a like amount up to the time of the hearing.
On June 27, 1942, plaintiff filed an action in mandamus in the Court of Common Pleas of Mahoning county against the Board of Education of the city of Youngstown praying that such board be required to tender her a continuing contract and to re-employ her as a teacher. The board answered and set up as a defense that prior to September 1, 1941, the relatrix in that action (plaintiff) had retired and therefore she was not eligible to receive a continuing contract and the board had no right to tender her such contract.
On December 14, 1942, the court entered judgment in that action granting a peremptory writ of mandamus ordering (1) that the board enter into a continuing contract with the relatrix and (2) that relatrix be restored to all things lost by reason of the failure of the respondent (board) to enter into such continuing contract with relatrix on the 2nd day of September 1941.
That judgment has not been modified or reversed and has become final.
On June 14, 1943, plaintiff filed the instant action praying for judgment in the sum of $2,000, the amount due her as salary for the school year 1941-1942. The board answered admitting that the sum prayed for is the sum plaintiff would have earned as a teacher during that school year. It is further alleged that she had applied for and received retirement benefits from and after September 1941 and by reason thereof the board is not indebted to her in any sum.
The reply alleges that the matters referred to in the answer of defendant with reference to retirement and retirement benefits were fully determined in the mandamus action and therefore are res judicata.
Upon those pleadings the cause came on for trial, a jury was waived and the cause tried to the court. At the conclusion of the hearing the court decided that plaintiff was entitled to her salary as prayed for in her petition and deducted the sum of $1,137.24 received from the Teachers Retirement System for the period of 12 months from September 1, 1941, and entered judgment for the difference between $2,000, the amount of salary she would have received, and $1,137.24, the amount she did receive from the retirement fund, to wit, $862.76.
On appeal on questions of law the Court of Appeals affirmed the judgment.
The case is here for review upon the allowance of a motion to certify the record.
In the Miller case, No. 30043, the same general factual situation and the same legal questions were presented and the same general result reached.
In this court the cases were argued together, both are controlled by the same legal principles, and while we will deal with the facts in the Poehls case, this opinion will be dispositive of both cases.
Messrs. Williams, Stanley Andrews, for appellees.
Mr. W.P. Barnum, for appellants.
To solve the problem of whether the defense set forth in the answer in the Poehls case is res judicata as alleged in the reply, it is necessary to consider the issues involved in the action for mandamus. The petition in that case alleges that on September 1, 1941, she (Louisa M. Poehls) was the holder of a life certificate; that she had been employed in the schools of the city of Youngstown, Ohio, for 35 consecutive years prior to September 1, 1941; that the General Assembly enacted House Bill No. 121 which became effective on September 1, 1941 (119 Ohio Laws, 451); and that such house bill amended Section 7690-1, General Code, to read in part as follows:
"A continuing contract shall be a contract which shall remain in full force and effect until the teacher resigns, elects to retire, or is retired pursuant to Section 7896-34 of the General Code, or until it is terminated or suspended as provided in this act and shall be granted only to teachers holding professional, permanent, or life certificates." (Italics ours.)
It is alleged that such house bill enacted Section 7690-2, General Code, which read in part as follows:
"Provided, however, that on or before September 1, 1941, a continuing contract shall be entered into by each board of education with each teacher holding a professional, permanent, or life certificate who, at the time of the passage of this act, is completing five or more consecutive years of employment by said board."
It is further alleged that the board of education had failed and refused to enter into a continuing contract with her and had failed and refused to assign her a place to teach during the school year 1941-1942.
The relief prayed for was that the respondent be ordered to enter into a continuing contract with and to re-employ relatrix as a teacher.
The answer in that action denied that the relatrix (Louisa M. Poehls) was on the first day of September, 1941, the holder of a teacher's professional certificate or qualified for or entitled to a continuing contract of employment. It alleged that prior to September 1, 1941, relatrix made application for and was granted pension by virtue of the Teachers Retirement Act; that therefore relatrix was not eligible and respondent was without authority to enter into a continuing contract of employment with relatrix. The substance of the respondent's answer was based upon the proposition that relatrix had retired and therefore was not eligible to demand or receive a continuing contract.
It will be noted from the quoted provision of Section 7690-1, General Code, that a continuing contract shall remain in full force and effect until the teacher elects to retire. If, therefore, the teacher had retired prior to September 2, 1941, she would not have been entitled to a continuing contract. That issue was material and relevant in determining the question of whether she was entitled to prevail in the mandamus action.
In the case of Norwood v. McDonald et al., Admrs., 142 Ohio St. 299, 52 N.E.2d 67, this court held:
"3. A point or a fact which was actually and directly in issue in a former action and was there passed upon and determined by a court of competent jurisdiction may not be drawn in question in any future action between the same parties or their privies, whether the cause of action in the two actions be identical or different."
The fact that plaintiff (appellee here) had not elected to retire prior to September 2, 1941, having been actually and directly in issue and adjudicated in the mandamus action, such issue could not be again drawn in question in the instant action.
We agree with counsel for appellants that plaintiff did not file an unqualified application for retirement until October 2, 1941, and we have little difficulty in arriving at the conclusion that even then she did not voluntarily elect to retire but what she did was due to actions of the board in wrongfully refusing her a continuing contract and an assignment to teach in the school year 1941-1942. This is clearly evidenced by the letter accompanying the application in which she said:
"I have refused to recognize their [the board] letter asking for my retirement.
"I want my job * * *."
Even assuming that on October 2, 1941, she did voluntarily elect to retire, such retirement would not have become effective until the end of that school year, by force of Section 7896-34, General Code, which provides in part as follows:
"Any teacher, except a new entrant with less than five years of service, who has attained sixty years of age may retire, if a member, by filing with the retirement board an application for retirement. The filing of such application shall retire such member as of the end of the school year then current."
By virtue of the provisions of section 7896-1, General Code, the school year then current commenced on September 1, 1941, and ended on August 31, 1942. Hence, where a teacher, subsequent to September 1, 1941, filed an application to retire, such retirement became effective on August 31, 1942. Even assuming that plaintiff (appellee here) did voluntarily retire on October 2, 1941, such retirement did not become effective until August 31, 1942.
The trial court did not err in concluding that plaintiff was entitled to her salary for the school year 1941-1942.
The plaintiff having filed no cross-appeal, the affirmance of the judgment by the Court of Appeals was Correct and its judgment should be and hereby is affirmed.
Judgments affirmed.
WEYGANDT, C.J., ZIMMERMAN, WILLIAMS, TURNER and HART, JJ., concur.
MATTHIAS, J., not participating.