Opinion
No. 29184
Decided October 28, 1942.
Schools — Teacher Tenure Act — Section 7690-1 et seq., General Code — Assistant county superintendent a "teacher" — County board of education may abolish position of assistant superintendent, when — Writ of mandamus denied — Continuing contract for special position not ordered.
IN MANDAMUS.
This is an original action in this court in mandamus against the Meigs county board of education as a collective body and against its members as individuals to compel them to issue to the relator a continuing contract for the position of assistant superintendent of schools of Meigs county from and after July 1, 1942.
By agreement of the parties and by the admissions in pleadings it is shown that the relator, John W. Frank, holds a teacher's life certificate; that he is and has been under contract with the respondents as acting assistant county superintendent of schools of Meigs county for the past six years, ending June 30, 1942; that relator's last contract of employment was under date of March 16, 1940, for a period of two years, from July 1, 1940, at a salary of $2,200 per year; that the annual appropriation for the year 1942 included the sum of $2,200 for an assistant county superintendent of schools, one-half of which had been paid to the relator at the expiration of his contract, June 30, 1942; that the relator was continuously employed as a teacher in the public schools of Meigs county for a period of 13 years prior to the date of his first employment as assistant county superintendent of schools; that during all of his period of service as teacher in the public schools of Meigs county the relator was under the supervision of the county superintendent of schools; and that during his term of service as assistant county superintendent of schools he assisted in the supervision of the teachers of the schools throughout the county, including assistance in the supervision of school transportation in the county public schools.
It is further shown that according to the record of the state department of education the average daily attendance in the public school system of Meigs county between the years 1935 and 1941 decreased by 586; that the funds available from the state for such schools have decreased from $214,561.75 in 1936 to $193,185.80 in 1942; that the annual financial reports filed by the superintendent of schools with the department of education show that all the rural school districts in Meigs county have deficits, the total of which has increased from $20,213.78 in 1936 to $88,802.23 in 1940, which latter date is the date of the last report available on this subject; and that according to the official education directory for the school year 1941-1942 only 24 of the 88 counties in this state employ assistant county superintendents of schools.
It is further shown that no action was taken by the respondents to terminate relator's contract under Section 7690-6, General Code, but that on March 21, 1942, the respondents adopted a resolution to the effect that as a matter of economy the position of assistant county superintendent of schools was abolished, to take effect on July 1, 1942. Thereupon, the relator was notified that he would not be reemployed and that the position of assistant county superintendent of schools had been abolished. The respondents still refuse to grant relator a continuing contract of employment.
Mr. Carrington T. Marshall and Mr. Edgar Ervin, for relator.
Mr. Manning D. Webster and Mr. D. Curtis Reed, for respondents.
The first contention of the respondents in support of their position is that the Teachers' Tenure Act, Sections 7690-1 to 7690-8, General Code, applies only to teachers in the public schools; that the employment of the relator as assistant county superintendent of schools was not that of a teacher; and that therefore his position was subject to abolition and his employment to termination. In the opinion of the court, this interpretation of the term "teacher" as used in the statute is too narrow, and we conclude that the relator in the performance of his duties under his contract held a teacher's status. Section 7690-3, General Code.
The prayer of the petition is that the court issue a writ of mandamus compelling the respondents to execute a continuing contract to the relator and that the court incorporate therein a recital that the action of the respondents in attempting to abolish the position of assistant county superintendent of schools is a nullity and of no force and effect. This squarely raises the question as to whether the respondents, having once created the position of assistant county superintendent of schools, may, on justifiable grounds, abolish the position, or must continue the position indefinitely and give to the relator a continuing contract until he voluntarily retires or until his contract is terminated as provided by Section 7690-6, General Code.
The sole claim of relator is that the respondents lack the power to abolish the position and to terminate the contract of relator under the law. The respondents contend that their action in this regard was motivated by a reduced school enrollment with consequent reduction of school revenues and by the necessary requirements of economy. The facts support respondents' contention. To hold that a county board of education, having once established a position in the county public schools, has no power under the law to abolish it, even though there be a sufficient cause, would, in the opinion of the court, seriously challenge the constitutionality of the law itself.
The relator is seeking a writ to require the board of education to enter into a continuing contract with him for a special position in the school system. This requires him to show that he has a clear legal right to such restitution. In the opinion of the court, he has not done so. The court in this case is not passing upon relator's right, if any, to have a contract for a position as teacher in the schools under Sections 7690-3 and 7690-7, General Code. The writ will be denied.
Writ denied.
TURNER, WILLIAMS, HART and ZIMMERMAN, JJ., concur.
WEYGANDT, C.J., concurs in the judgment.
MATTHIAS, J., not participating.