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noting that if a statute does “not give the relief desired, the remedy lies with the legislative branch of the state government”
Summary of this case from State v. RadcliffOpinion
Nos. 28834, 28849, 28916 and 28918
Decided March 25, 1942.
Schools — Teachers' Tenure Act — Section 7690-1 et seq., General Code — Teacher completing five years of employment, entitled to continuing contract, when — June 2, 1941, time of passage of act — Five or more years of continuous employment, completed, when — Retroactive law not passed or contracts impaired — Section 28, Article II, Constitution — Contract system in districts with less than 800 pupils — Applies only to beginning and new teachers and their re-employment — Board rule denying employment to teachers reaching age 65, inoperative, when — Board rule against employment or retention of married women teachers, inapplicable, when.
1. Under the first proviso of Section 7690-2, General Code
(119 Ohio Laws, 451), a part of the Ohio Teachers' Tenure Act, a teacher in the public schools holding a professional, permanent or life certificate, who was completing five or more consecutive years of employment by any board of education at the time of the passage of the act, was entitled to the tender of a continuing contract of employment by such board on September 1, 1941, or within a reasonable time thereafter.
2. The words "at the time of the passage of this act," as used in the first proviso of Section 7690-2, General Code, mean the date upon which the act was approved and signed by the Governor, viz., June 2, 1941.
3. The first proviso of Section 7690-2, General Code, applies to a certificated teacher completing the prescribed years of continuous employment within a reasonable time before or after June 2, 1941, or within a reasonable time before or after the termination of the school year 1940-1941 in a particular school district.
4. The first proviso of Section 7690-2, General Code, is not violative of Section 28, Article II of the Constitution of Ohio, forbidding the passage of retroactive laws or laws impairing the obligation of contracts.
5. The second proviso of Section 7690-2, General Code, relating to a contract system in school districts of less than eight hundred pupils, has reference to beginning teachers, new teachers and to their re-employment, and is without application to a certificated teacher completing five or more consecutive years of employment in such a school district.
6. Under the pertinent provisions of Sections 7690-1 and 7690-2, General Code, a certificated teacher completing five or more consecutive years of employment, who on September 1, 1941, had not resigned, elected to retire, or been retired upon reaching seventy years of age, pursuant to Section 7896-34, General Code, was entitled to the tender of a continuing contract from a board of education by which he had been so employed, notwithstanding such teacher came within a rule of the board denying employment to teachers who had reached the age of sixty-five.
7. Under the first proviso of Section 7690-2, General Code, a certificated female teacher completing five or more continuous years of employment by a board of education was entitled to the tender of a continuing contract from such board on September 1, 1941, or within a reasonable time thereafter, even though she was then married and there was a rule of the board in force against the employment or retention of married women teachers.
IN MANDAMUS.
APPEAL from the Court of Appeals of Summit county.
These four cases involve the interpretation and validity of certain parts of the so-called "Ohio Teachers' Tenure Act" (Sections 7690-1 to 7690-8, General Code, 119 Ohio Laws, 451), passed by the General Assembly of Ohio May 15, 1941, approved by the Governor June 2, 1941, effective September 1, 1941.
The provisions of law affecting these controversies read as follows:
Section 7690-1, General Code.
"Each board of education shall enter into contracts for the employment of all teachers and shall fix their salaries which may be increased but not diminished during the term for which the contract is made except as provided in Section 7690-3 of this act. Teachers must be paid for all time lost when the schools in which they are employed are closed owing to an epidemic or other public calamity.
"Contracts for the employment of teachers shall be of two types: limited contracts and continuing contracts. A limited contract for a superintendent shall be a contract for such term as authorized by Section 7702 of the General Code, and for all other teachers, as hereinafter defined, for such term as authorized by Section 7691 of the General Code. 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.
"The term 'teacher' as used in this act shall be deemed to mean and include all persons certified to teach and who are employed in the public schools of this state as instructors, principals, supervisors, superintendents, or in any other educational position for which the employing board requires certification.
" 'Year' as applied to terms of service for the purposes of this act means actual service of not less than one hundred and twenty days within a school year, provided however that any board of education may grant a leave of absence for professional advancement with full credit for service.
" 'Continuing service status' for a teacher means employment under a continuing contract."
Section 7690-2, General Code:
"* * * 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. * * * Provided, however, that in school districts of under eight hundred pupils, the following contract system shall control:
"a. Beginning teachers, who have not previously been employed as a teacher in any school, shall be hired for one year.
"b. New teachers, who have had at least one year's experience as teachers in other schools, shall be employed for a period of time commensurate with their past experience at the discretion of the hiring board of education, provided that no such contract shall be for more than five years.
"c. Upon re-employment after the termination of the first contract, the new contract shall be for not less than three years nor more than five years provided that the teacher's educational qualifications have been fulfilled and the teacher's work has been satisfactory.
"d. Upon re-employment after the termination of the second contract, the teacher's contract shall be for five years and subsequent renewal thereof shall be for five-year periods, or the board of education may at any time grant a continuing contract."
Section 7690-6, General Code:
"The contract of a teacher may not be terminated except for gross inefficiency or immorality; for wilful and persistent violations of reasonable regulations of the board of education; or for other good and just cause. Before terminating any contract, the employing board of education shall furnish the teacher a written notice signed by its clerk of its intention to consider the termination of his contract with full specification of the ground or grounds for such consideration. Unless the teacher so notified shall, within ten days subsequent to the receipt of such notice, demand in writing an opportunity to appear before the board and offer reasons against such termination, the board may proceed with formal action to terminate the contract. * * *"
Section 7690-7, General Code:
"When by reason of decreased enrollment of pupils, or by reason of suspension of schools or territorial changes affecting the district, a board of education decides that it will be necessary to reduce the number of teachers, it shall have full authority to make reasonable reduction. But, in making such reduction, the board shall proceed to suspend contracts in accordance with the recommendation of the superintendent of schools who shall, within each teaching field affected, give preference to teachers on continuing contracts and to teachers who have greater seniority. Teachers whose continuing contracts are suspended shall have the right of restoration to continuing service status in the order of seniority of service in the district if and when teaching positions become vacant or are created for which any of such teachers are or become qualified."
Section 7689, General Code:
"Beginning on July 1, 1925, the school year shall begin on the first day of July of each calendar year and close on the thirtieth day of June of the succeeding calendar year * * *."
Section 7896-34, General Code:
"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.
"At the end of the school year in which they become members the retirement board shall retire all teachers who were over seventy years of age at the time they became members and shall retire all other members at the end of the school year in which the age of seventy is attained, provided in each case the consent of the employer is secured."
In cause No. 28834, Oscar M. Bishop filed a petition in mandamus in this court, alleging that since 1927 he had been the holder of an elementary life teaching certificate; that since 1933 he had been continuously employed by the respondent, the Board of Education of Mt. Orab Village School District of Brown county, to teach the sixth grade in the public schools of such district, including the entire year of 1940-1941; that in May of 1941 he was recommended by the county superintendent of schools for re-employment for the school year of 1941-1942, but that the respondent failed to tender him a contract, although his seniority was greater than any other teacher employed; and that he presented himself at the school house of the district ready to teach during the school year of 1941-1942, but was advised there was no place for him.
The prayer of the petition is that a writ of mandamus issue commanding respondent to enter into a continuing contract with the relator to teach in such school at a salary based upon his educational qualifications and experience.
An answer was filed comprising six separately numbered defenses. After making certain admissions in the first defense, respondent alleges in the second that Section 7690-2, General Code, passed by the Legislature in May 1941, effective September 1, 1941, under which the relator seeks relief, is unconstitutional and void, being violative of Section 28, Article II of the Ohio Constitution, forbidding the passage of retroactive laws or laws impairing the obligation of contracts. Thirdly, the respondent alleges that its school district is one with an average attendance of less than 800 pupils and therefore relator is not entitled to a continuing teaching contract. Fourthly, respondent says that prior to the enactment of Section 7690-2, General Code, it refused re-employment to the relator and so advised him prior to June 2, 1941. Fifthly, the respondent states that it did not engage any other teacher to take relator's place and there is one less teacher employed in the grade schools of the district for 1941-1942, and lastly the allegation is made that relator was not a teacher in the district at the time of the passage of Sections 7690-1 and 7690-2, General Code, his contract having expired before June 2, 1941. In the agreed statement of facts it is stipulated that "the date on which the last classes were held in Mt. Orab Village School District for the school year 1940-1941 was May 23, 1941," and the contract between relator and respondent incorporated in the agreed statement of facts and dated September 2, 1940, shows that the relator was employed "for the term of 9 months."
In cause No. 28849, John W. Creig filed a petition in mandamus in this court against the Board of Education of the City School District of the City of Cleveland, the clerk of the board and the superintendent of schools, alleging that relator had been constantly employed as a teacher in the public schools of Cleveland for thirty-one years and was so employed during the school year 1940-1941, and particularly on June 2, 1941; that he holds a special life teaching certificate in commercial subjects, became 65 years old in 1940, and is a member of the state teachers' retirement system. Further allegations are that relator, near the beginning of the school year 1941-1942, presented himself to the respondents and demanded a continuing contract of employment, which was refused. The petition concludes with the prayer that the respondents be ordered to issue relator a continuing contract of employment engaging him as a teacher in the public schools for the school year 1941-1942 and thereafter, pursuant to law.
For answer, the respondents set up a rule and regulation of the board of education, adopted in 1938, providing that no contract shall be entered into for the employment of a teacher for any school year if such teacher has attained or shall have attained the age of sixty-five years before the first day of such school year, and allege that such rule and regulation was accepted by the relator in his teaching contract for the school year 1940-1941.
Further answering, the respondents say that the teachers in the Cleveland city school district were appointed on July 21, 1941, for the school year 1941-1942, and because of such rule and regulation the relator's name was not included among the teachers receiving appointments. And moreover relator's employment as a teacher was wholly terminated prior to the effective date of Section 7690-2, General Code.
Respondents say further that on September 1, 1941, relator was not a teacher within the meaning of Section 7690-1, General Code, and hence was not a teacher within the meaning of Section 7690-2, General Code, but if the court should find the contrary to be true, then Section 7690-2, General Code, insofar as applicable, is unconstitutional and void, being retroactive in effect and a law impairing the obligation of contracts.
The case is presented for decision upon a demurrer to the answer.
In cause No. 28916, Verne Lynch, as relator, filed his petition in mandamus in the Court of Appeals of Summit county against the respondents as members of the Board of Education of Springfield Rural School District of Summit county, to compel them to tender the relator a continuing contract of employment as executive head of the public schools of Springfield township.
Under the agreed and conceded facts, it appears that on July 31, 1941, relator had completed nine consecutive years of employment by the board of education of the Springfield Rural School District, and his contract was not renewed; that for a period of six years immediately preceding July 31, 1941, he had been continuously employed as executive head of the Springfield township schools; that relator holds a life teaching certificate and was recommended for continuing employment by the county superintendent of schools; and that on September 1, 1941, he offered his services to respondents and requested a continuing contract of employment, which was not forthcoming.
A writ of mandamus was refused by the Court of Appeals on the ground that the relator was not employed as a teacher on September 1, 1941, when Section 7690-2, General Code, became effective. The language "at the time of the passage of this act as used in Section 7690-2, General Code, was construed to mean the date upon which the statute became effective as a law.
The case is now in this court on an appeal as of right.
Cause No. 28918 is an original action in mandamus filed by Louella Brown against the Board of Education of the city of Elyria to compel it to tender her a continuing contract as a teacher in the Elyria high school, beginning September 1, 1941, by virtue of Sections 7690-1 and 7690-2, General Code.
She alleges that on September 1, 1933, she was employed by the respondent as a teacher in the high school at Elyria, and has remained continuously in that capacity; that on March 1, 1941, she requested respondent to enter into a teaching contract with her for the school year 1941-1942; that since August 30, 1932, the relatrix has been the holder of a state life high school certificate, according her the right to teach in the public high schools of Ohio; that on or about September 1, 1941, the respondent did not tender her a continuing teaching contract as prescribed by law, and failed to do so pursuant to her later demand on November 3, 1941; that she has at all times been ready, able and willing to enter into a continuing contract as a teacher; and that another teacher has been employed by the respondent in her place.
Answering the respondent alleges that in March of 1941 it determined that the school year of 1941-1942 should commence on September 1, 1941, and should end on June 12, 1942; that on April 7, 1941, it entered into contracts with those teachers to be employed during the school year 1941-1942; that relatrix was not tendered a contract of employment as a teacher; and that since June 6, 1941, she has not been a teacher in the employ of respondent.
Answering further, the respondent says that relatrix was married during the time that her contract of employment for the year 1940-1941 was in force and that such marriage was in violation of its rules and regulations to the effect that married women would not be given contracts of employment as teachers, and that the contract of a woman teacher who married during the term of any contract would be declared void, with which rule and regulation the relatrix was familiar.
Respondent also alleges that relatrix was not completing five or more consecutive years of employment as a teacher when Sections 7690-1 and 7690-2, General Code, became effective.
In her reply the relatrix says that she was married July 14, 1940, and that subsequent to her marriage, to wit, on or about March 3, 1941, the respondent adopted the rule and regulation that it would not issue teaching contracts to married women and that the contract of any woman teacher who married after the issuance of such contract or during the term of service specified therein would be null and void, and that such rule and regulation is "unreasonable, unjust, is not of uniform operation by said board of education, and against public policy."
Relatrix further avers that at the time of the passage of the so-called "School Tenure Act" she was in the employ of respondent as a teacher. Among the stipulations contained in the agreed statement of facts is the following: "On September 1, 1933, the relator [ sic] was employed by the defendant [ sic] board of education as a teacher in the high school of the city of Elyria, Ohio, to teach the French and English languages, and she continuously remained in the employ of said board of education in that capacity until school closed, to wit, June 6, 1941." Other stipulations are in accord with the allegations of the pleadings, except, of course, there is no admission on the part of the respondent that its rule as to the employment of married women teachers is unreasonable or invalid.
Mr. O.E. Young and Mr. Joseph D. Martin, for relator, in cause No. 28834.
Mr. Arch R. Hicks, Jr., prosecuting attorney, and Messrs. Nichols, Speidel Nichols, for respondent, in cause No. 28834.
Mr. Ira D. Lucal, for relator, in cause No. 28849.
Mr. Thomas A. Burke, Jr., director of law, Mr. Charles W. White and Mr. Joseph H. Crowley, for respondents, in cause No. 28849.
Messrs. Buckingham, Doolittle Thomas and Mr. Dwight K. Parsons, for appellant, in cause No. 28916.
Mr. William A. Spencer and Messrs. Slabaugh, Seiberling, Huber Guinther, for appellees, in cause No. 28916.
Messrs. Vandemark Vandemark, for relator, in cause No. 28918.
Mr. Richard S. Horan, city solicitor, for respondent, in cause No. 28918.
At the outset of this opinion, attention is directed to the universally recognized principle that a court has nothing to do with the policy or wisdom of a statute. That is the exclusive concern of the legislative branch of the government. When the validity of a statute is challenged on constitutional grounds, the sole function of the court is to determine whether it transcends the limits of legislative power.
In recent years, legislation in the form of teachers tenure acts has been enacted by a number of states for the protection of those established and qualified in the teaching profession and to prevent their arbitrary dismissal. Such legislation bears a resemblance to the older civil service laws, and the general constitutionality of teachers tenure acts has been upheld by the courts as a valid exercise of legislative power. 110 A. L. R., 791, annotation; 113 A. L. R., 1495, annotation; 127 A. L. R., 1298, annotation.
Speaking of the Alabama "Teacher Tenure Act," the court remarked in the case of Board of Education of Marshall County v. Baugh, 240 Ala. 391, 395, 199 So. 822, 825:
"The very laudable purpose of this act was to insure to the teachers some measure of security in their important work and to free them, at least to a measurable extent from the 'vicissitudes of politics' or the likes or dislikes of those charged with the administration of school affairs.
"Such being the manifest purpose of the act it should be liberally construed in favor of the teachers, who constitute the class designated to be its primary beneficiaries."
As concerns the pending controversies, the first proviso in Section 7690-2, General Code, is of controlling significance. It reads:
"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."
Plainly, the quoted language imports that if a teacher holding the kind of certificate designated is completing five or more consecutive years of employment by any board of education at the time of the passage of the act, he or she is entitled to the tender of a continuing contract of employment by such board on September 1, 1941, the effective date of the act, or within a reasonable time thereafter.
The next matter of inquiry is: What date marks the passage of the act? As has already been observed, the law was enacted by the General Assembly on May 15, 1941, was approved and signed by the Governor on June 2, 1941, and became effective on September 1, 1941.
In 25 Ruling Case Law, 796, Section 44, the following statement appears:
"The taking effect of an act is a different thing from its passage or enactment. * * * in ordinary usage the passage of an act is well understood as that time when it is stamped with the approval of the requisite vote of both houses in the constitutional manner, signed by the presiding officer of each house, and approved by the chief executive * * *. But its going into effect * * * means its becoming operative as a law."
This statement corresponds with the views expressed by this court and by other authorities. See, Patterson Foundry Machine Co. v. Ohio River Power Co., 99 Ohio St. 429, 124 N.E. 241; Cincinnati Traction Co. v. Public Utilities Commission, 113 Ohio St. 618, 150 N.E. 81; State, ex rel. City Loan. Savings Co., v. Moore, Clerk, 124 Ohio St. 256, 258, 177 N.E. 910; Jemison v. Town of Ft. Deposit, 214 Ala. 471, 108 So. 397; State v. Williams, 173 Ind. 414, 90 N.E. 754, 140 Am. St. Rep., 261, 21 Ann. Cas., 986; Moree v. State, 130 Miss. 341, 94 So. 226; Cordiner v. Dear, 55 Wn. 479, 104 P. 780; 1 Lewis' Sutherland on Statutory Construction (2 Ed.), 308, Section 172.
Therefore, the court is of the opinion that the phrase "at the time of the passage of this act" appearing in the third paragraph of Section 7690-2, General Code, means and was intended to mean the date when the act was approved by the Governor, viz., June 2, 1941.
Next suggesting itself is the question: Who is a teacher completing five or more consecutive years of employment at the time of the passage of the act? Under Section 7689, General Code, the school year begins on July 1st of each calendar year and terminates on June 30th of the succeeding calendar year. The fair and sensible answer to the propounded question is that a teacher who was completing five or more consecutive years of service within a reasonable time before or after June 2, 1941, or within a reasonable time before or after the termination of the school year 1940-1941 in a particular school district, would come within the intendment of the law.
Under such interpretation, all four of the teachers herein were completing five or more consecutive years of service when the act was passed.
It is earnestly contended by the respondents that the first proviso of Section 7690-2, General Code, is unconstitutional, being violative of Section 28, Article II of the Constitution of Ohio, prohibiting the passage of retroactive laws or laws impairing the obligation of contracts. We cannot agree. As we view it, such proviso does no more than designate the class entitled to continuing contracts on the effective date of the act, and is therefore not retroactive in effect. Teachers' Tenure Act Cases, 329 Pa. 213, 233, 197 A. 344, 356. Compare State, ex rel. Evans, v. Dudley, 1 Ohio St. 437, 442. Clearly, the General Assembly possesses the power to prescribe the system of education which shall prevail throughout the state, and in pursuance of such authority may direct those agencies created by it, viz., the various boards of education, to enter into continuing contracts with qualified teachers, terminable for cause. Such legislation has uniformly been held not to offend constitutional inhibitions against interference with the freedom of contract. Ratcliff v. Dick Johnson School Twp., 204 Ind. 525, 185 N.E. 143; 110 A. L. R., 792.
This disposes of the propositions common to all four of the pending causes, and establishes: (1) That the phrase "at the time of the passage of this act," as employed in the first proviso of Section 7690-2, General Code, means the date upon which the act was approved and signed by the Governor, viz., June 2, 1941; (2) that the first proviso of Section 7690-2, General Code, applies to a certificated teacher who was completing five or more consecutive years of employment within a reasonable time before or after June 2, 1941, or within a reasonable time before or after the termination of the school year 1940-1941 in any school district, and that all of the relators herein were completing such terms of service; and (3) that Section 7690-2, General Code, is not unconstitutional as violative of Section 28, Article II of the Constitution.
In the Oscar M. Bishop case, two additional reasons are advanced as to why he should not succeed in his action. First, it is urged that since the Mt. Orab Village School District has an average daily attendance of less than 800 pupils, relator cannot claim the benefit of the first proviso of Section 7690-2, General Code. From an analysis of that part of the section relating to school districts of under 800 pupils and embracing subdivisions a, b, c and d, we are satisfied that it has reference only to beginning teachers, new teachers, and to their reemployment, and does not affect the relator, Bishop. Second, it is claimed that Bishop may not demand a contract for the year 1941-1942 because the board of education did not employ any other teacher to take his place for that year. In our view, this makes no difference. Bishop qualified for a continuing contract under the mandatory terms of the first proviso of Section 7690-2, General Code, and the board was under the duty to tender it. If in a future year or years enrollment in the district should decrease, or any of the other conditions should occur as enumerated in Section 7690-7, General Code, and reduction in the teaching staff should be deemed necessary for any of those reasons, such reduction would have to be made in conformity with the directions of the section.
In the John W. Creig case, the respondent board of education refused Creig a continuing contract because of its rule denying employment to teachers who had reached the age of sixty-five years. Such rule cannot override the statute. As has already been emphasized, a teacher who qualifies as to certification and continuous years of service had to be offered a continuing contract on or soon after September 1, 1941, and that regardless of any prior rule or agreement to the contrary. Under Section 7690-1, General Code, a continuing contract available to a certificated teacher 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 * * *." Under Section 7896-34, General Code, a teacher cannot be compelled to retire until he or she becomes seventy years old. Consequently, the Board of Education of the Cleveland City School District was without authority to deny the relator, Creig, a continuing contract on the ground that he had reached the age of sixty-five years.
Much of what has been said in connection with the Creig case is applicable to the Louella Brown case. Relatrix Brown qualified as a teacher entitled to a continuing contract under the first proviso of Section 7690-2, General Code. Her marriage was without significance, the law making no distinction between married and unmarried teachers. However, if a board of education has a rule against the employment or retention of married female teachers, and it should decide to attempt to discharge the holder of a continuing contract because of marriage, the situation would then come within the provisions of Section 7690-6, General Code, and the question presented would then be whether marriage constitutes "other good and just cause" for terminating the contract. That question is not now before the court, and no opinion is expressed thereon.
It follows that writs of mandamus will issue in causes Nos. 28834 and 28918; the demurrer to the answer is sustained in cause No. 28849, and the writ allowed, and in cause No. 28916 the judgment of the Court of Appeals is reversed and the case remanded to that court with directions to issue the writ.
Writs allowed in causes Nos. 28834, 28849 and 28918.
Judgment reversed and cause remanded in cause No. 28916.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS and HART, JJ., concur.
BETTMAN, J., not participating.