Opinion
No. 29262
Decided December 16, 1942.
Schools — Teachers' Tenure Act — Holder of elementary life certificate entitled to continuing contract, when — Section 7690-2, General Code.
Under the first proviso of Section 7690-2. General Code (119 Ohio Laws, 451), a public school teacher, holding an elementary life certificate, who, near June 2, 1941, was completing more than five consecutive years of employment as a teacher by a board of education, was entitled to the tender of a continuing contract by such board on September 1, 1941, or within a reasonable time thereafter, for a position for which her certificate qualified her.
APPEAL from the Court of Appeals of Scioto county.
In this action, commenced in the Court of Appeals of Scioto county, the relatrix, a school teacher, sought a writ of mandamus against the respondent, the Board of Education of the Wheelersburg Rural School District, to require it to tender her a continuing contract as a teacher.
After hearing, the court granted the writ ordering the respondent to tender relatrix a continuing contract forthwith in the elementary grades of the school district for the school year 1941-1942, and thereafter, as provided by Sections 7690-1, 7690-2 and 7690-3, General Code.
An appeal as of right brings the case into this court for review.
There is no real dispute in the facts themselves. It is admitted that on June 2, 1941, the relatrix was completing more than five consecutive years of employment as a teacher by the respondent, and that she was the holder of an elementary life certificate according her the right to teach in the elementary grades of any public school district in Ohio. She was not a college graduate.
It appears that, upon nomination by the county superintendent of schools, relatrix was employed as a teacher by the respondent for the school year 1940-1941 and assigned to the reading department in the seventh and eighth grades of the Wheelersburg High School, commonly denoted a six-year high school. School began on September 2, 1940, and ended May 16, 1941.
In April of 1941 the relatrix received a questionnaire from the county superintendent of schools. Answering it, she stated that she was not quitting teaching at the close of the present school year, expressed a desire to continue in her present position for the ensuing school year, but said further she would accept any school in the county rather than have none.
At a meeting held on May 27, 1941, the respondent adopted the following resolution:
"Whereas, the requirements of the state Department of Education for 1940 and 1941 and the ensuing school year requires all teachers in a six-year high school to be graduates of a four-year college course with majors and minors in secondary school subjects, and two teachers teaching in the six-year high school, Harriet Thurston [the relatrix] and Mauna Chick, are without such degree, therefore be it resolved that said teachers, Harriet Thurston and Mauna Chick, be not employed for 1941 and 1942."
Relatrix was promptly notified by letter of such action and filed her petition in the present cause October 23, 1941.
Mr. Frank W. Moulton and Mr. Aronhold C. Schapiro, for appellee.
Mr. Emory F. Smith, for appellant.
Recently, in the case of State, ex rel. Bishop v. Board of Education of Mt. Orab Village School Dist., 139 Ohio St. 427, 40 N.E.2d 913, we had occasion to consider and apply certain parts of the "Ohio Teachers' Tenure Act" (Sections 7690-1 to 7690-8, General Code, 119 Ohio Laws, 451), and upheld them as a valid exercise of legislative power. We further indicated that the act should be liberally construed in favor of those it was designed to benefit.
Much significance was attached to the first proviso of Section 7690-2, General Code, reading:
"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."
Here, at the time of the passage of this act, relatrix held an elementary life certificate, and was completing more than five consecutive years of employment as a teacher by the respondent, under our interpretation of the quoted proviso in the Bishop case. Relatrix testified that her teaching services had been continuous from 1930.
These facts standing alone would entitle relatrix to prevail in her action.
However, respondent contends, as set out in its brief:
"Even though the Teachers' Tenure Act might have been otherwise applicable, her [relatrix's] rights to further teach were definitely ended by force of law and contract when the respondent refused to employ her to teach in a position which she was not qualified to teach and when she, prior to the passage of the Teachers' Tenure Act, declined employment to teach in any other position for which she was qualified."
When compared with the mandatory and sweeping language of the quoted proviso of Section 7690-2, General Code, and the actual responses made by the relatrix to the submitted questionnaire, this contention cannot prevail.
In answering the questionnaire, relatrix plainly said that she did not intend to give up teaching and, while expressing a preference to be continued in her present position, stated definitely that she would accept any school in the county "rather than to have none."
We are consequently of the opinion that the Court of Appeals was correct in ordering the issuance of a writ of mandamus requiring the respondent to tender relatrix a continuing contract as a teacher in the elementary grades of the Wheelersburg Rural School District, and its judgment is affirmed.
Judgment affirmed.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS and HART, JJ., concur.
BELL, J., not participating.