Opinion
No. 28546.
March 17, 1953. Appellants Motion for Rehearing or to Transfer to Supreme Court Denied April 17, 1953.
APPEAL FROM THE CIRCUIT COURT, WASHINGTON COUNTY, CLAUDE E. CURTIS, J.
W. R. J. Hughes, Ironton, for defendant-appellant, Jessamine Edmonds.
Samuel Richeson, Potosi, William B. Dearing, Hillsboro, for respondents.
This is an action brought by plaintiffs, Wesley Irwin, Jesse D. Essmyer and T. A. Dempsey, as taxpayers and residents of the territory embraced within Reorganized School District No. R-3 of Washington County, seeking cancellation of certain contracts of employment entered into between said school district and Jessamine Edmonds and Leatha Bub, and for an injunction restraining the Board of Education of said district from paying to Jessamine Edmonds and Leatha Bub the salaries stipulated for in said contracts. Said district was named as defendant, together with W. L. Edmonds, Louis Hribanek, Guy Nixon, Vassel Reynolds, the directors of said district, and the said Jessamine Edmonds and Leatha Bub.
The trial below resulted in a decree canceling said contracts and permanently enjoining said Board of Education and its members from paying out any money to said Jessamine Edmonds and Leatha Bub under said contracts. From this judgment, Jessamine Edmonds has appealed.
It appears from the record that defendant Reorganized School District No. R-3 of Washington County, Missouri, is a duly organized school district under the laws of the State of Missouri, and, as such, is engaged in conducting public schools in the territory embraced within said district. At the time of the events which gave rise to this proceeding the Board of Education of said district was comprised of the following individuals: W. L. Edmonds, President; Louis Hribanek, Vice-President; Vassel Reynolds, Secretary; Jesse D. Essmyer, Member; T. A. Dempsey, Member; and Guy Nixon, Member. Defendant Jessamine Edmonds was the wife of W. L. Edmonds.
The written contract of employment which is involved in this case was dated April 12, 1951. By said contract, defendant Jessamine Edmonds agreed to teach in the public school of said district for the term of nine months, commencing on the third day of September, 1951, for the sum of $214 per month. For said services rendered, and reports correctly made, according to law, said Board agreed to issue warrants upon the treasurer of said district in favor of said Jessamine Edmonds for the amount of wages due under the agreement. Said contract was signed by the said Jessamine Edmonds, and by W. L. Edmonds as President of the Board. The salary called for in the contract was fixed in accordance with a salary schedule for all teachers in said district prepared by the Superintendent and adopted by the Board at a meeting held April 10, 1951.
The foregoing contract was authorized by the Board of said district at a special meeting held on April 12, 1951. The minutes of said meeting disclose that all members of the Board were present and that, upon a motion by one of the members duly adopted, the Board proceeded to ballot on election of teachers for the school year commencing September 3, 1951. The minutes further show that when the name of Jessamine Edmonds was suggested as a teacher and the question of her employment and was submitted to the Board, three votes were cast in favor of her employment and two votes were cast against same. William Edmonds, husband of Jessamine Edmonds, though present, refrained from voting on the proposition.
The record further shows that Jessamine Edmonds had taught the previous year under a contract dated April 11, 1950. By the terms of this contract Jessamine Edmonds agreed to teach in the public school of said district for a term of nine months, commencing on the fourth day of September, 1950, for the sum of $200 per month. This contract was the result of action taken by the Board at a meeting held on April 11, 1950, at which teachers' applications were presented for the Board's consideration. Among the applications presented was that of Jessamine Edmonds. The vote on Mrs. Edmonds included the proposition to transfer her to the Potosi Elementary School. Prior to that time, according to Mrs. Edmonds' testimony, she had been teaching elsewhere. Mr. W. L. Edmonds, the husband of Jessamine Edmonds, was a member the Board at that time and, at said meeting, when his wife was considered for a position as teacher, he refrained from voting. The minutes of said meeting show that three members of the Board cast their vote in favor of employing Mrs. Edmonds, and two members voted against such employment.
The petition alleged that the contract dated April 12, 1951, was void, for the reason that said Jessamine Edmonds was not reelected as a teacher for said district by a majority of the whole board, in violation of Section 165.320 RSMo 1949, V.A.M.S. It was also alleged that the contract was void for the further reason that there was a violation of the anti-nepotism provision of Section 163.080 RSMo 1949, V.A.M.S., as the result of an arrangement between W. L. Edmonds and Vassel Reynolds whereby each agreed to vote for the relative of the other. Defendant Leatha Bub was a sister of Vassel Reynolds. By admissions in the pleadings, it appears that at a meeting of the Board on April 12, 1951, Vassel Reynolds voted for Jessamine Edmonds, and W. L. Edmonds voted for Leatha Bub.
Jessamine Edmonds and Leatha Bub filed a joint answer. The material part, which sets forth their theory of defense, is as follows:
"IV.
"* * * these defendants state that each of them was, on the date of the alleged School Board meeting, already employed within the School System; that, according to the provisions of the law, particularly Section 163.090 Revised Statutes of Missouri, 1949, they awaited notification by said School Board if they were not re-employed; that no word of their dismissal as teachers reached them by the date fixed by law, towit, April 15th, but instead they discovered that they had not been, by vote, dismissed at the school meeting; that, in accordance with the law a contract was then offered them and they accepted same.
"V.
"They further state that they have entered into the teaching contracts in good faith, have done nothing contrary to law, have entered into no fraudulent agreements or done anything to render them unfit to continue teaching in the system, but instead have made all preparations to so continue during the ensuing year."
Defendant School District, and defendants W. L. Edmonds, Louis Hribanek, Guy Nixon, and Vassel Reynolds filed a joint answer. By said answer it was alleged that the Board met on April 12, 1951, for the purpose of deciding either to retain or dismiss teachers then employed, and to notify those not re-elected before April fifteenth, as required by Section 163.090 RSMo 1949, V.A.M.S., well knowing that unless teachers who were unsuitable were notified before April fifteenth that they were not reelected, such teachers would, under the provisions of said law, automatically be reemployed.
It was further alleged that Jessamine Edmonds and Leatha Bub were already employed and entitled to the benefits of said Section 163.090, supra; that the question of their re-employment was then voted on and each received three votes for re-employment to two votes against, and "that said teachers were not therefore notified of failure to be re-employed before the fifteenth of said month, April, but were, in accordance with the law, presented contracts for the ensuing year."
It was further alleged that "the provisions of Sections 163.080 and 165.320 supra, referred to by plaintiffs, do not apply in the instant case, which comes under the provisions of Section 163.090; and that the contracts sought to be voided have been legally and equitably executed."
The prayer of the answer was that the court approve the action of the Board in the premises, and declare the contracts to be valid.
Plaintiffs filed replies to the answers of defendants, alleging in reply that if the defendant teachers were continued in employment, such continuance was a violation of the anti-nepotism provisions of Section 163.080 RSMo 1949, V.A.M.S., and to permit such an evasion of the statute would be against the best welfare of said district, and the inhabitants and taxpayers thereof, and against good public policy. It was further alleged that "the contracts entered into by each of said defendants for the school year of 1951-1952 was not identical in its terms with the contracts which said defendants held with said district during the preceding school term, and therefore said defendants are not entitled to invoke the provisions of Section 163.090 RSMo 1949, V.A.M.S."
At the conclusion of the trial, the court, upon request of defendants' counsel, made findings of fact and conclusions of law. The facts found were those we have heretofore detailed in this opinion. The court's conclusions of law were as follows:
"1. That Jessamine Edmonds and Leatha Bub were not legally employed as teachers in Re-organized School District R-3 of Washington County, Missouri, in April, 1950, because they did not receive a majority vote of the whole Board of Education of said District.
"2. That said persons were not legally employed as teachers in said School District in April, 1951, because they did not receive the majority vote of the whole Board of Education.
"3. That in April, 1951, said Board of Education sought to employ said teachers under a new contract and the teachers were not re-employed under the contract of April, 1950.
"4. If said teachers received a majority vote of the whole board by counting for the majority the vote of members who failed and refused to vote, then the contracts were void because they were in violation of the anti-nepotism provisions of the law.
"5. The purported contracts of the aforementioned teachers for the school years 1950-51 and 1951-52 were not made as provided by law and they are null and void."
Appellant, in her points relied on, complains that the court erred (1) in admitting in evidence the minutes of the Board meeting of April 11, 1950; (2) in failing to declare that the contract of April 12, 1951, was valid under the provisions of Section 163.090, RSMo 1949, V.A.M.S.; and (3) in penalizing appellant by depriving her of her rights under Section 163.090, supra.
There are three sections of the statute which are relevant to the issues in this case.
Section 163.080 RSMo 1949, V.A.M.S. provides for the time and manner of the employment of teachers, the part material here being as follows:
"The board shall not employ one of its members as a teacher; nor shall any person be employed as a teacher who is related within the fourth degree to any board member, either by consanguinity or affinity, where the vote of such board member is necessary to the selection of such person; * * *."
Section 163.090 RSMo 1949, V.A.M.S., provides:
"Except as may be otherwise provided by law, the provisions of section 163.080 relative to the time and manner of employing teachers shall apply only to their original employment; and their re-employment shall be subject to the regulations herein set forth. It shall be the duty of each and every board having one or more teachers under contract to notify each and every such teacher in writing concerning his or her re-employment or lack thereof on or before the fifteenth day of April of the year in which the contract then in force expires. Failure on the part of a board to give such notice shall constitute re-employment on the same terms as those provided in the contract of the current fiscal year; and not later than the first day of May of the same year the board shall present to each such teacher not so notified a regular contract the same as if the teacher had been regularly re-employed. * * *"
Section 165.320 RSMo 1949, V.A.M.S., provides for the organization of the board, and states:
"A majority of the board shall constitute a quorum for the transaction of business, but no contract shall be let, teacher employed, bill approved or warrant ordered unless a majority of the whole board shall vote therefor."
The court did not err in admitting in evidence the minutes of the Board meeting of April 11, 1950. The ground of objection asserted was that the evidence was on an issue beyond the scope of the pleadings. The defendant teachers, in their answer, pleaded that they were already employed within the school system on April 12, 1951, and for that reason were entitled to rights under Section 163.090, supra. Said section makes mandatory the giving of a regular contract to each teacher not notified of his or her re-employment by the fifteenth day of April of the year in which the contract then in force expires. It would seem, therefore, from defendants' pleading, that the contention was being made that the contract of April 12, 1951, was in compliance with this mandatory provision of the statute, for the answer of the School District and others alleged "that said teachers were not therefore notified of failure to be re-employed before the fifteenth of said month, April, but were, in accordance with the law presented with contracts for the ensuing year."
Under the pleadings, therefore, it would seem that evidence which tended to show that the 1950-1951 contracts were invalid was admissible. The minutes offered showed that neither Mrs. Edmonds nor Mrs. Bub received the vote of a majority of the Board at said meeting.
Section 165.320, supra, definitely and in plain unequivocal language, provides that no teacher shall be employed unless a majority of the Board vote in favor of such employment. It necessarily follows that Mrs. Edmonds did not receive a valid contract of employment as a result of the Board's action on April 11, 1950, which could be made the basis for the assertion of rights under Section 163.090, supra.
It stands undisputed that when the name of Mrs. Edmonds was considered by the Board at the meeting held on April 12, 1951, she did not receive a majority vote of the whole Board in her favor. It necessarily follows that Mrs. Edmonds' 1951-1952 contract was not valid. Section 165.320 RSMo 1949, V.A.M.S.
The judgment appealed from is affirmed.
BENNICK, P. J., and HOLMAN, J., concur.