Opinion
No. 733540
Decided July 22, 1960.
Schools — Teachers — Salary schedule — Public school foundation program — Chapter 3317., Revised Code — Service credits — Service in other schools — Military service — Discretion of board of education — Evaluation of prior service — Part of year — Retroactive effect of judgment — Computation — Time of filing salary schedule.
1. The provision of Section 4848-4a, General Code, and of Section 3317.06, Revised Code, prior to its amendment effective January 1, 1960, that in determining the effect upon a teacher's salary of prior service in another public school system "the board of education may evaluate such service," permitted a determination that any such service, of a teacher who had not served at least the five years stated in the exception to this power, had no monetary value.
2. The amendment of Section 3317.06, Revised Code, effective January 1, 1960, by removing the language expressly authorizing the evaluation of prior service in another public school system and substituting "to a total of at least five years" did not affect the authority of the board of education to evaluate such service.
3. The requirement of Section 3317.06, Revised Code, as amended effective January 1, 1954, that any person employed in any public school system be given full service credit for time spent in the armed forces was not conditioned upon a person's having been so employed prior to his military service.
4. The amendment of Section 3317.06, Revised Code, effective January 1, 1960, as it relates to rights to prior military service credit did not alter the rights of a plaintiff which had accrued under the earlier provisions on that subject.
5. In the computation of a teacher's military service credit, recognition is to be given for fractional parts of a year, based upon a calendar year.
6. Upon judicial determination that a public school teacher has not been paid the full salary to which he was entitled over several years due to an incorrect interpretation of the minimum salary schedule statute by the defendant board of education, the plaintiff should be reimbursed upon a retroactive application of the correct computation of his salary, including the increments to which he would have been entitled under the actual salary schedule for each year.
7. The teacher's salary schedule required to be filed annually under Section 3317.14, Revised Code, shall be effective for the entire school year regardless of the actual time of its filing.
Mr. Ralph A. McAllister, for plaintiff.
Mr. Ralph S. Locher, director of law, and Mr. William T. McKnight, for defendant.
This is an action for declaratory relief for the purpose of determining a question in actual controversy between the parties hereto.
It was instituted by the plaintiff by the filing of his petition seeking a declaratory judgment. The defendant filed its answer, voluntarily entering its appearance for the purpose of seeking declaratory relief.
THE PROBLEMS STATED
The questions submitted to the court and the relief prayed for are and may be stated in the language of the prayer of plaintiff's petition and the defendant's answer.
The plaintiff prays for declaratory judgment in the following respects:
(1) that under the provisions of former Section 4848-4a, General Code (effective June 20, 1951) and Section 4848-6 (effective September 28, 1947), Section 3317.06 Revised Code (effective January 1, 1954 and as amended effective January 1, 1960) and Section 3317.14 (effective January 1, 1960), defendant, Cleveland Board of Education, must include as service credit in determining plaintiff's salary the time plaintiff spent in service as a teacher in another school district together with the time spent by plaintiff as a member of the Armed Forces of the United States;
(2) that plaintiff is entitled to compensation in the amount of the difference between the amount paid to him by the defendant and the amount that should have been paid to him in accordance with defendant's salary schedule for teachers had he been given credit on said salary schedule for time spent as a teacher in another district and for time spent in the Armed Forces of the United States; and
(3) Also his costs in this action together with any other relief to which he may be entitled at law or in equity.
Defendant joins in the prayer of plaintiff for a declaratory judgment defining the rights and obligations of the parties hereto as well as others similarly affected as plaintiff under the interpretation of the court as to the effect of Sections 3317.06 and 3317.14, Revised Code, and pray that this court specifically determine the following questions, to wit:
(1) Does Section 3317.14, Revised Code, determine the time when a board of education must adopt and file a teachers' salary schedule as required under this act; and
(2) Is a board of education required to give service credit to a teacher for time spent in the Armed Forces prior to the date on which he began his first teaching position; and
(3) Is time spent in the Armed Forces of the United States to be prorated for a period of less than 12 months under provision that service credit shall be given for each year spent in the armed service; and
(4) Is an award to a teacher for service credit entered as to prior employment as a teacher in another school system or for time spent in the Armed Forces retroactive to the date on which said teacher began his employment subsequent to the effective date of Sections 3317.06 and 3317.14, Revised Code, to wit: the year 1951; and
(5) In the event that it is determined that service credit is retroactive, on what basis shall the yearly salary increment be determined, that currently approved or that which was in effect in each of the years that was in question; and for such other equitable determination and relief to which the parties hereto may be entitled in equity or in law.
The case was submitted upon the pleadings, the evidence, briefs submitted by counsel and oral arguments.
THE FACTS AS ADMITTED BY THE PLEADINGS AND AS FOUND BY THE COURT FROM THE EVIDENCE ADDUCED ON THE TRIAL
The plaintiff during the period from September 1, 1951, to September 1, 1959, held a valid provisional teacher's certificate duly issued by the superintendent of public instruction of Ohio, and that ever since September 1, 1959, he has held a valid professional teacher's certificate issued by the State Board of Education of Ohio; that pursuant to the aforementioned teacher's certificates he has been ever since September 1, 1951, and presently is, duly qualified for employment as a teacher in the public secondary schools of Ohio; that in order to comply with the standards and courses of study required for the teacher's certificate he now holds and heretofore has held, plaintiff earned the degree of Bachelor of Arts from Ohio University in June 1951, and the degree of Master of Arts from Indiana University in August 1952.
That following his graduation from Indiana University plaintiff was, during the period October 1952 to September 1954, due entirely to national emergency, a member of the United States Army; that during fourteen (14) months of that period he was in the foreign service as a member of the United States Army; that immediately upon his release from active duty with the Army he sought and obtained employment as a teacher; and that during the school year 1954-1955 he was regularly employed as a teacher in Painesville Harvey High School, Painesville, Ohio, and from September 1955 to the present time he has been regularly employed as a teacher in John Marshall High School, Cleveland, Ohio.
DEFENDANT'S ANSWER
Defendant by way of answer admits that the plaintiff has regularly been employed as a teacher in John Marshall High School, Cleveland, Ohio, and that said latter high school is a part of the system of the Cleveland City School District, and the defendant Board of Education has jurisdiction over all teachers employed therein and establishes the salaries paid to each said teacher including the plaintiff.
Defendant alleges that after an analysis of the personnel file of plaintiff, a determination was made that plaintiff was entitled to and was given credit for one year's teaching experience prior to September 1955; that no service credit was given to plaintiff for time spent in the Armed Forces of the United States; that plaintiff has not been awarded any salary increment by reason of service credit as a regular teacher in a system other than that of defendant, nor has he been awarded any salary increment by reason of service credit for time spent in the Armed Forces.
The defendant by its answer pleads that the name of the defendant as designated in plantiff's petition as "Cleveland Board of Education" is a political corporation organized and existing under the laws of the state of Ohio and its corporate name is Board of Education of the Cleveland City School District, Cuyahoga County, Ohio, and in such capacity it voluntarily entered its appearance herein for the purpose of seeking declaratory relief under Sections 3317.06 and 3317.14, Revised Code.
The defendant admits substantially the allegations of the plaintiff's petition as to its powers and duties and its participation and receipt of funds from the public school foundation as authorized and provided in Chapter 3317, Revised Code, and the allegations with respect to the establishment and maintenance of teachers' salary schedules in accordance therewith.
There is no dispute as to the facts dealing with plaintiff's preparation for the teaching profession and his personal achievements in connection therewith.
PLAINTIFF'S CLAIM
Plaintiff claims that it was the intent and purpose of the Ohio Legislature in enacting the statutes (quoted in his petition) to provide teachers with remuneration based upon their teaching experience regardless of whether it was obtained through service within or without a particular employing district, and to place veterans of the Armed Forces of the United States as nearly as possible in the position they would have been in, in regard to earnings and employment opportunities, if time had not been taken out by them in the service of their country.
Plaintiff claims further that in accordance with the statutes of the state of Ohio, his position on the salary schedule of defendant during each year he has served as a teacher in the employ of the defendant, Cleveland Board of Education, should have been determined by including credit for his year of service in the Painesville, Ohio, school district together with credit for the years during which he served in the United States Army.
That to the extent that the defendant has neglected, failed and refused to comply with the provisions of the statutes described herein, it has damaged him by paying him less for his services as a teacher than the amount to which he was entitled by law; that each year for approximately fifteen (15) years, until he reaches the maximum salary level, he will be damaged by receiving less salary than that to which he is entitled; and accordingly, it is the plaintiff's belief that he is entitled to payment from the defendant in the amount of the difference between what he actually earned in the defendant's employ and the amount he would have been paid by defendant had he been placed on the level of defendant's salary schedule commensurate with his training and experience granting him full credit for his prior service as a teacher in another district and his service in the Armed Forces of the United States.
It is apparent that in view of the plaintiff's contention and the undisputed fact that the defendant has failed to allow plaintiff any increment for his prior teacher's service or service in the Armed Forces that plaintiff has a vital interest in the outcome of this action.
From the testimony of Dr. Marc C. Shinnerer, Superintendent of Schools of the defendant it appears that no teacher has been given credit for military service rendered prior to employment as a teacher in the system; that by resolution of the board it was his duty to evaluate the personnel file; that according to the schedule adopted for his guidance that plaintiff was given credit for one year's teaching experience but that such schedule provided no dollar value therefor; that it was not discretionary to add money value for prior teacher's service unless schedule adopted by the board provided therefor.
The court in the consideration of the problems here submitted requested that counsel brief the subject which they have done. But neither counsel for plaintiff nor the defendant were able to come forth with any citations of any court within or without the state of Ohio dealing with the specific problem herein involved. For all practical purposes, this is a case of first impression.
The position of the plaintiff is quite simple; he urges that in the face of the statutes cited, he is entitled to credit and financial increment:
(1) for the year he taught at the Painesville High School before he joined the staff of the defendant board, and
(2) for the period he served in the Armed Forces of the United States.
(3) Compensation for past years and his costs.
The defendant board takes a different view of the matter. With respect to prior service as a teacher, the board has operated upon the principle that since the statute provides that "each board of education may evaluate such service for each new teacher employed by the Board of Education except that no new teacher shall be given credit for less than five years if the teacher has served five or more years in a public school system." (See Section 4848-4a, General Code) (Section 3317.06, Revised Code, effective January 1, 1954), that there is vested in the board some discretion as to whether a financial increment for prior service is to be paid the teacher.
The defendant's position is aptly stated in its answer brief. as follows:
"By reason of the fact that a minimum salary schedule is established by law, a question remains as to whether defendant having set a scale of salaries above such minimum must add additional amounts in `annual increments' in order to comply with Section 3317.06, Revised Code.
"The defendant asks of this court whether or not payment in money shall be made to a teacher whose military service in no way interrupted or interfered with his teaching tenure. And further, is discretion permitted on the part of the defendant in determining whether or not the `experience' gained in another school system has any related value to the teaching assignment held in the Cleveland public school system.
"If the intent of the General Assembly was and is to make donations or gifts unrelated to the classroom value of a teacher by reason of said teacher having served in the armed forces or taught in any other school system regardless of curriculum or rating, the same should be enunciated as a matter of law."
It is evident that plaintiff in the first item of his prayer seeks a declaration by this court upon two different types of prior service credit, namely
(a) Prior service credit as a teacher at the Painesville High School, and
(b) Prior service in the Armed Forces of the United States.
The court proposes to consider these types in the order stated, but each separately under the respective heads.
(A) IS PLAINTIFF ENTITLED TO CREDIT AND FINANCIAL INCREMENT FOR THE YEAR OF PRIOR SERVICE AT PAINESVILLE HIGH SCHOOL?
The prior service of plaintiff was rendered after the effective date of Section 4848-4a, General Code, on June 29, 1951. The pertinent part thereof reads as follows:
"In computing years of service, credit shall be given for each school year such teacher was in service as a regular teacher in any public school system; provided, however that the Board of Education may evaluate such service for each new teacher employed by the Board of Education except that no new teacher shall be given credit for less than five years if the teacher has served five or more years in a public school system * * *" (Section 4848-4a, General Code).
This language was carried into Section 3317.06, Revised Code, verbatim and continued in effect until amended effective January 1, 1960, and now reads as follows:
"A Board of Education shall provide in the teachers' salary schedule, adopted pursuant to Section 3317.14 of the Revised Code, that each teacher employed by the Board shall be given full credit on such schedule for each year of service outside the district as a regular public school teacher or for service in the armed forces of the United States or a combination thereof to a total of at least five years. The salary increments granted for such service shall be the same as those currently granted by the employing Board to teachers without teaching service in other school districts or without service in the armed forces."
The foregoing quoted parts of the respective statutes are sections of statutes dealing with a minimum salary schedule for teaching personnel employed in the Ohio school system. The salary schedule established in said sections shall be considered a minimum pay scale for teachers in this state. It is evident from an examination of the statute that the Legislature realistically recognized that teaching personnel perhaps after service in one section of the state would seek to transfer to some other community within the state for reasons best known to the teachers themselves. Certainly after service in one community, perhaps after several years of service, followed by a transfer to a different school district where the teacher would be starting anew would be unfair to the individual unless provision was made by statute for some prior service credit based upon training, experience and tenure. The Legislature wrote into the statute the provisions to allow for such situations. That is evident by reading the first clause of the quoted section, to wit:
"In computing years of service, credit shall be given for each school year such teacher was in service as a regular teacher in any public school system;"
But the Legislature did not stop there. It added the following proviso:
"* * * provided, however, that the Board of Education may evaluate such service for each new teacher employed by the Board of Education except * * *."
It is the language of the proviso that causes the present controversy. What did the Legislature intend thereby? With what authority did the Legislature invest the board by use of the language " may evaluate such service for each new teacher" etc., in order to give such teacher credit for prior service.
In the task of the court in construing a statute the court should strive to give effect not only to the statute as a whole but to the several parts as well. It is stated in Vol. 37, Ohio Jurisprudence, Section 338, Title Statutes, pages 612-613:
"The presumption is that every word in a statute is designed to have some effect. Therefore, an attempt should be made to give effect to each and every word, phrase, clause and provision."
And in the same authority it is stated:
"The rule that a statute is to be construed as a whole and given such interpretation as will give effect to every word, phrase and clause in it is also applicable to the construction of a proviso in a statute." See Section 458, page 786.
Since the statute in the language of the proviso gives the board the right to "evaluate" such prior service the pertinent question which arises is "for what purpose" in view of the definition of the word "evaluate" found in Webster's International Dictionary as follows: (1) To ascertain the value or amount of; (2) To appraise carefully.
Did the Legislature intend by its use of the word evaluate to restrict it in the limited sense to ascertain the "amount" of such prior service? This must be answered in the negative because of the presence in the statute of the exception attached as it is and follows the proviso to the effect:
"* * * except that no new teacher shall be given credit for less than five years if the teacher has served five or more years in a public school system."
If the word evaluate is to be construed in the limited sense and in relation to the "amount" of the prior service then the exception that follows the proviso would be of no particular value. But its use does furnish aid in construing the meaning and sense in which the word "evaluate" is used in the proviso. If we consider that the sense in which the word evaluate was used as intending that the board was invested with the right to ascertain the value of such prior service then the need for the exception becomes apparent. A board might reach the conclusion that a prior service say of ten years' duration might be evaluated and entitled to a credit say of (3) years. Here we find a use for the exception. By its use the Legislature has said you must in such case give the new teacher credit for at least five years. This demonstrates and makes apparent that the sense in which the word "evaluate" is used is in relation to the value of such prior service and not alone the amount thereof. With the foregoing construction placed upon the proviso under consideration the exception following it serves a purpose and is consistent in every way with the command expressed in the first clause of the section discussed.
In the case at bar the board pursuant to the authority vested in it did evaluate the prior service of the plaintiff and attached no monetary value thereto, although for other purposes it took official cognizance of the fact that he had taught at Painesville, Ohio. In this respect it is the conclusion of the court that the board exercised a discretion vested in it and authorized by statute and that plaintiff is not entitled to any financial remuneration for prior service as a teacher in the high school at Painesville from the inception of his service with the board to December 31, 1959.
There remains for consideration of the court the application to the instant problem the effect thereon of the statute, Section 3317.06, Revised Code, as amended January 1, 1960, as above set forth. While the amended statute as presently written has dropped the language of the proviso and the exception relating to the proviso, it is the view of the court that the statute giving it a reasonable construction impliedly leaves to the school board the authority to evaluate prior service as had been provided in the predecessors of the statute under consideration. If this were not true it is difficult to find any reasonable need for the presence in the statute of the words " or a combination thereof to a total of at least five years." As has been noted earlier herein that there is a presumption that every word, phrase or clause contained in a statute is intended as a significant part thereof and effect must be given thereto by the courts. It is not the province of the courts to negative any part of a statute so long as there is a logical and reasonable construction possible. What possibly would be the need for this language in the statute in the absence for authority of the board to reduce through evaluation the number of years prior service credit as a teacher? Frankly, none is apparent to this court.
The court therefore concludes that the amendment to Section 3317.06, Revised Code, effective January 1, 1960, does not in any manner affect the authority of the board with respect to evaluating prior teaching service.
(B) IS PLAINTIFF ENTITLED TO CREDIT AND FINANCIAL INCREMENT FOR THE PERIOD HE SERVED IN THE ARMED FORCES OF THE UNITED STATES?
The plaintiff's claim is predicated upon the language of Section 4848-4a, General Code, and its successor Section 3317.06, Revised Code, as effective January 1, 1954, which reads:
" Furthermore, any person employed in any public school system in Ohio who has served or may serve in the Armed Forces of the United States shall be given full service credit for time spent in such armed forces." (Emphasis added.)
In the section effective January 1, 1954, the word " Furthermore" has been deleted, otherwise the section is exactly the same as its predecessor.
The language above quoted is a part of the minimum salary schedule adopted by the Legislature effective June 29, 1959. The language used is clear and unambiguous. The purport thereof is that any person employed in any public school system in Ohio who has served or who may serve in the Armed Forces of the United States shall be given full credit for time spent in such armed forces. It makes no distinction between persons who served in such forces prior to employment in the school system and those whose services in the school system has been interrupted by military service.
The defendant school board has raised the question already noted.
The construction and interpretation of this section of the Code was the subject of an opinion of the Attorney General of Ohio soon after the effective date of the section in 1951.
Ohio Jurisprudence lays down the rule that
"The opinions of the Attorney General of the United States, or of a state, who passes upon the interpretation of questioned statutes, may be, and are frequently, considered by the courts, which generally accord them due respect. However, such opinions are entitled to only such consideration as the reasons given for the opinion warrant. They are not binding upon the court."
The opinion of the Attorney General is a very thorough, well reasoned and sound analysis of the problem; the conclusion reached by the Attorney General in the opinion of this court is correct and this court adopts the conclusions reached in said opinion for the cogent reasons therein stated. The pertinent part of the opinion is as follows:
"This language would seem to give full service credit on the salary schedule for time spent in the armed forces of the United States, even to those who at the time of entry into the mlitary services were not employed as teachers but who became such for the first time after service in the armed forces. The Legislature has dealt with the problem of interruption of employment by service in the armed forces in other areas and the language used in the applicable legislation is significant. Section 7896-64a, General Code, gives prior service credit to members of the school system, toward retirement, for time spent in the active service of the armed forces of the United States; in restricting prior service credit to those whose employment was interrupted by military service the following language is used:
"`* * * any member of the system who was or is out of active school service by reason of having served in the active service of the armed forces of the United States and who returns to school service or becomes a member of either the public employees' retirement system or the state teachers' retirement system within two years after receiving such discharge or release shall have such service considered the equivalent of prior service. * * *'
"Section 4628-3, General Code, authorizes the trustees of police relief and pension funds to adopt rules allowing credit toward retirement of those members of the police department whose period of service in the police department was interrupted by military service. The statute reads as follows:
"`Trustees of the police relief and pension fund are hereby authorized to adopt rules for the allowance of credit toward retirement of those members of the police department who have actively served in the armed forces of the United States, army, navy or marine corps in time of warfare or when armed expeditions were conducted during this period of service, and such members have been honorably discharged.'" (Emphasis added.)
"Comparing the language of Sections 7896-64a and 4628-3, General Code, and that of Section 4848-4a, General Code, it is difficult to conceive that the Legislature intended that the language used in Section 4848-4a, should express the same meaning as that found in the other two sections, i. e., that prior service credit is given under Section 4848-4a only where the employment was interrupted by service in the armed forces. To so hold would be to read into Section 4848-4a a restriction which the lawmakers did not include by force of the wording used. It must be remembered that when speaking of the intent of the Legislature, it is the manifest intent that we are concerned with and not the subject and unexpressed intent of the individual legislators. As stated in 50 American Jurisprudence, Section 368, the rule of construction is as follows:
"`Generally, however, where a statute is so plain and unambiguous that it is not susceptible of more than one construction, courts construing the same should not be concerned with the consequences resulting therefrom. The undesirable consequences do not justify a departure from the terms of the act as written, and the courts may not supply a casus omissus however desirable it may be to supply the omitted provision. It is not the function of a court to engraft on a statute additions which it thinks the Legislature logically might or should have made. In such case, the consequences if objectionable, can only be avoided by a change of the law itself, to be effected by the Legislature, and not by judicial action in the guise of interpretation.'
"Section 4842-10a, General Code, must also be considered before arriving at any definite conclusion. This provision, which became effective July 18, 1951, within a month after the effective date of Section 4848-4a, provides for the reemployment of teachers who have served in the armed forces. It is there provided, in part:
"`For the purpose of seniority and placement in the salary schedule, years of absence in the service of the United States or the auxiliaries thereof, shall be counted as though teaching service had been performed during such time.'" (Emphasis added.)
"The minimum salary schedule set out in Section 4848-4a is necessarily a part of the salary schedule of every school district and if the Legislature intended to give service credit on the salary schedule (whether the minimum salary scale is applicable or a higher scale that may have been set by the school districts) only where the person had left a teaching position to enter the armed forces, such a result would be brought about by the above quoted provision of Section 4842-10a, and the provision in 4848-4a, Revised Code, with which we are concerned would be entirely unnecessary and meaningless. That statutes should be construed to avoid such a condition if possible is a rule which cannot be questioned. Sutherland on Statutory Construction, Vol. 2, Section 4705, states the rule as follows:
"`It is an elementary rule of construction that effect must be given, if possible to every word, clause and sentence of a statute. A statute should be construed so that effect is given to all provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake of error.'
"Considering the natural meaning of the language used in Section 4848-4a, General Code, and construing this section in the light of the provision of Section 4842-10a, General Code, so as to give full effect to both, it would seem that Section 4848-4a does not limit prior service credits for service in the armed forces of the United States to those persons whose employment as teachers was interrupted by service in the armed forces.
"The effect of construing Section 4848-4a to give service credit on the salary schedule for military service rendered prior to employment as a teacher will merely mean that beginning teachers who are veterans will start at a slightly higher salary than those beginning teachers who did not serve in the armed forces of the United States. Surely such a result cannot be held to be unreasonable or even unusual, where in other instances the Legislature has attempted to make up to the veteran in some degree for the time he has lost because of service in the armed forces, by providing for veteran preferences in employment. In all examinations for classified civil service positions the veteran is given a percentage preference. Section 486-10, General Code, provides in part:
"`* * * that any soldier, sailor, marine, coast guardsman, member of the auxiliary corps as established by Congress, member of the army nurse corps, navy nurse corps, or Red Cross nurse who has served in the army, navy or hospital service of the United States, and such other military service as may now or hereafter be designated by the Congress of the United States in the war of the rebellion, the war with Spain, including the Philippine insurrection and the Chinese relief expedition, or from April 21, 1898, to July 4, 1902, or the war with the central powers of Europe between the dates of April 6, 1917, and November 11, 1918, or the war with the Axis powers, beginning December 8, 1941, commonly known as World War II (,) who has been honorably discharged therefrom and is a resident of Ohio, may file with the civil service commission a certificate of service and honorable discharge, whereupon he shall receive additional credit given in the regular examination in which he receives a passing grade of twenty per cent of his total grade. * * *'
"The underlying purpose of Section 4848-4a, General Code, would seem to be comparable to Section 486-10, General Code, quoted above, i. e., to place veterans as nearly as possible in the position they would have been in, in regard to earnings and employment opportunities, if time had not been taken out in the service of their country.
"In specific answer to your question, it is therefore my opinion that a teacher by the terms of Section 4848-4a, General Code, is entitled to service credit on the salary schedule for time spent in the armed forces prior to his first job of teaching."
It should further be noted that the aforesaid opinion of the Attorney General of 1951 was affirmed and followed by the Attorney General of Ohio in 1960. O. A. G. No. 1165 dated February 29, 1960.
It is therefore the conclusion of this court that plaintiff was entitled to credit for his prior service in the armed forces of the United States when he began his teaching status with the defendant.
It is further the conclusion of the court that the Section 3317.06, Revised Code, as amended effective January 1, 1960, does not alter the right of plaintiff to prior military service credit.
The conclusions expressed above dispose of both propositions embodied in the first item in the prayer of plaintiff's petition and likewise of question No. 2 propounded by the defendant.
DETERMINATION OF PLAINTIFF'S COMPENSATION
In the second item of the prayer of plaintiff's petition is a request for a declaration that he is entitled to compensation. The amount thereof is dependent upon a judicial determination of certain questions propounded by the defendant upon which it seeks declaratory relief. Plaintiff's request will therefore be deferred pending a consideration of defendant's questions. They are questions Nos. 3, 4 and 5.
Deft's No. 3 — IS TIME SPENT IN THE ARMED FORCES TO BE PRORATED FOR A PERIOD OF LESS THAN 12 MONTHS UNDER THE PROVISIONS OF THE STATUTE?
The period of military service of the plaintiff extended from October 1952 to September 1954, or a period of 22 months.
The pertinent part of the statute dealing with the period for which credit was to be allowed as found in Section 4848-4a, General Code, effective June 1951 reads:
"* * * shall be given full service credit for time spent in such armed forces."
Again in Section 3317.06, Revised Code, effective January 1, 1954, we find exactly the same language.
It was not until the section in question was amended effective January 1, 1960, that we find a reference to "each year" of such service. But even in this amendment we find the Legislature decreeing by the language used the idea of full credit for such service.
To say the least the statutes in effect from June 1951 until December 31, 1959, used language that was clear, certain and unambiguous. The Legislature has expressed its intention in unmistakable language, without the need for construction or interpretation. There is nothing in the statutes in force during that period to suggest that the measuring stick for service credit was to be a year or years.
The plaintiff having spent 22 months in the service of his country's armed forces, credit for but one year would not be full credit for time spent.
The plaintiff however urges that because service in the armed forces for 22 months in reality is service for two teaching or school years and that the court should so construe the statute. With this, the court cannot agree. There is nothing in the statute that would warrant this court in giving the language used a construction that would extend the benefits of the statute beyond its clear meaning.
It is the view of the court and therefore its conclusion that full credit service for time spent in the military service by the plaintiff means 22 months, no more, or no less, to be prorated for that part less than one year.
The next question for determination is:
Deft's No. 4 — IS AN AWARD FOR SUCH PRIOR SERVICE IN THE ARMED FORCES RETROACTIVE TO THE DATE ON WHICH THE TEACHER BEGAN HIS EMPLOYMENT SUBSEQUENT TO THE EFFECTIVE DATE OF SAID SECTIONS 3317.06 AND 3317.14, REVISED CODE, YEAR 1951?
There appears no legal impediment in this action to the application of the conclusions reached herein to the plaintiff's situation. The statutes referred to have been in effect throughout his employment to December 31, 1959. The obligation to allow such credit was present; and no doubt because of the uncertainty expressed by the defendant board, in good faith did not apply the statute. In view of the conclusion reached by this court, the defendant board should endeavor at this time to make the plaintiff whole for the entire period of his employment in the system.
It is doubtful that the question of proration would arise in the event of prior service respecting teachers. Here the statute speaks of years of service. The language is quite different with respect to military service.
Deft's No. 5 — IN THE EVENT IT IS DETERMINED THAT SERVICE CREDIT IS RETROACTIVE, ON WHAT BASIS SHALL THE YEARLY INCREMENT BE DETERMINED, THAT CURRENTLY APPROVED OR THAT WHICH WAS IN EFFECT IN EACH OF THE YEARS THAT WERE IN QUESTION?
In its answer to the last preceding question the court indicated that the defendant board in applying the court's rulings endeavor to make the plaintiff whole. He should have what is and was due him from the board, that what has been withheld from him. It is the view of this court and therefore its conclution that plaintiff should be allowed the increments that were due and owing as they accrued during the time of his employment up to December 31, 1959, and such as may be provided for the year 1960.
The foregoing conclusions in substance indicate the court's judgment and declaration as to the second requested declaration called for in plaintiff's petition. It is the court's declaration that plaintiff is entitled to compensation in the amount of the difference between the amount paid to him by the defendant and the amount that should have been paid to him in accordance with defendant's salary schedule for teachers had he been given credit on said salary schedule for time spent in the Armed Forces of the United States, prorated to comply with the 22 months of such prior service and according to the increments that would have been allowed him as they accrued, but excluding prior service credit for the one year connected with the Painesville High School.
There is one more question upon which the defendant seeks this court's declaration. It follows:
Deft's No. 1 — DOES SECTION 3317.14, REVISED CODE, DETERMINE THE TIME WHEN A BOARD OF EDUCATION MUST ADOPT AND FILE A TEACHERS' SALARY SCHEDULE AS REQUIRED UNDER THIS ACT?
There is a provision in Section 3317.14, Revised Code, as presently in effect that:
"Any board of education participating in funds authorized by Section 3317.02 of the Revised Code, shall annually adopt and file with the State Board of Education a teachers' salary schedule with provision for increments based upon training and experience * * *."
There is further requirement that a copy be filed with the County Superintendent of Schools, and his duty to certify to the clerk of such school district the correct salary to be paid.
The statute does not prescribe any definite time within which or at which such schedule must be filed. It seems that since the statute calls for the filing of a schedule annually, regardless of when filed during a given school year, it would be effective for such entire school year.
A journal entry embodying the foregoing conclusions and declarations is to be submitted for the court's approval. Costs assessed to defendant.