Opinion
No. 30236
Decided August 8, 1945.
Schools — Mandamus to compel board of education to execute continuing contract — Board failed to obey writ and refused to assign teacher a school — Teacher brought action for salary and declaratory judgment — Teacher may recover past-due salary and future installments, when — Declaratory judgment cause of action not pleaded, when — Teacher entitled to recover salary payable had continuing contract been executed.
The board of education of Y refused to enter into a continuing contract with a teacher, R, pursuant to Section 7690-2, General Code (119 Ohio Laws, 452), which provided, inter alia, that a board of education shall enter into a continuing contract on or before September 1, 1941, with each teacher having specified qualifications and five or more consecutive years of employment by such board. R, prior to that date, had been employed as a teacher by such board for twelve consecutive years and at the time of the passage of that section held a life certificate. Thereafter a writ of mandamus was issued commanding the board to enter into such a contract with R as of September 2, 1941. The board failed to obey the writ and refused to assign R a school. Thereupon R brought an action for salary and for a declaratory judgment defining her right to salary that might accrue in the future and in her second amended petition (filed May 4, 1943) set out the foregoing facts and prayed recovery of salary for the school years 1941-1942 and 1942-1943 but only in the event that such recovery should be without prejudice to a claim for salary for subsequent years. Held:
1. The plaintiff's second amended petition states facts sufficient to warrant recovery of her salary for those two school years and by supplemental petition she is entitled to bring in subsequent installments of salary that have become due and payable during the pendency of the action.
2. The second amended petition does not state a cause of action for a declaratory judgment.
3. On the undisputed facts as stated plaintiff is entitled to recover the salary that would have been due and payable had the continuing contract been entered into as required by statute. ( James v. Allen County, 44 Ohio St. 226, distinguished.)
APPEAL from the Court of Appeals of Mahoning county.
This action was brought in the Court of Common Pleas of Mahoning county, on August 24, 1942, against the defendants as members of the Board of Education of the City of Youngstown, and was submitted to the court on the second amended petition (filed May 4, 1943), answer, reply and the evidence, a jury having been waived.
The plaintiff, claiming her right to salary for two years, during which she was entitled to a continuing contract under the Teachers' Tenure Act, prays that there may be declared to be due her from the defendants the sum of $2,000 for the school year 1941-1942 and $2,000 for the school year 1942-1943, with interest; that she may be permitted to accept such amounts without prejudice to her right to salary for future years up to the retirement age; and that the defendants be ordered and directed to pay the plaintiff the amount due but only in the event that the court determines that she may accept the same without prejudice to claims for salary for subsequent years.
The material facts are undisputed.
The plaintiff is at present 53 years of age, and was employed by such board as a teacher in the public schools of Youngstown for 12 consecutive years, doing her last teaching there in June 1941, at which time she was receiving a salary of $2,000 per year, payable in semi-monthly installments during the school year of nine and one-half months, and was the holder of a teacher's life certificate at the time of the passage of Section 7690-2, General Code (119 Ohio Laws, 452). Prior to the commencement of this action plaintiff had filed a proceeding in mandamus in the Court of Common Pleas of Mahoning county, against the members of the board of education, who are likewise the defendants herein. The court adjudged that the plaintiff was entitled to and should be awarded a continuing contract with the defendants as of September 2, 1941. That a writ of mandamus was issued therein and served upon the board of education appears from the following colloquy between counsel, which took place in open court, during the trial of the instant case:
"Mr. Hoyt: Will it be admitted by the board that a copy of the order of mandamus was served upon the board?
"Judge Barnum: There is no question about that.
"Mr. Hoyt: I am doing that for a specific purpose of showing that the board was notified after the decree.
"Judge Barnum: No question about the board being notified of the decree and there is no question but what the board recognized the force and effectiveness of the court's order; they didn't put on any formal resolution; they assumed as a matter of law the legal status obtained; am I stating it correctly, Mr. Bowman?
"Mr. Bowman: Correct."
The plaintiff held herself in readiness to teach at and from the beginning of the school year in September 1941, but the defendants did not formally execute a written contract, did not assign her a school and did not pay her any salary after June 1941.
The trial court found and adjudged as follows:
"First: That the within action which is in the nature of declaratory judgment, is a proper remedy available to plaintiff under the issues and evidence herein, to which finding and judgment defendants except.
"Second: That by reason of the legal force and effect of a pronouncement of the Supreme Court of Ohio in the case of James v. Allen County, 44 Ohio St. 226, the court finds and declares that any money judgment recovered by plaintiff herein for the school years 1941-1943, will bar any further recovery by plaintiff with respect to future years, to which findings, order and judgment, plaintiff excepts."
Both plaintiff and defendants appealed on questions of law and fact.
The Court of Appeals consolidated the two causes, dismissed the appeals on questions of law and fact and considered the causes as appeals on questions of law. Thereupon the court affirmed the judgment of the Court of Common Pleas.
This court ordered a certification of the record and the cause is here on the appeal of the plaintiff and the cross-appeal of the defendants.
Messrs. Hammond, Hoyt Rand, for appellant.
Mr. W.P. Barnum, for appellees.
The first question arises on the appeal by plaintiff. She maintains that the trial court committed prejudicial error in holding that recovery of a money judgment for the school years 1941-1943 would bar further recovery, and in failing to enter judgment in her favor for salary for the two school years as prayed for.
The decision of the trial court was based upon the pronouncement in James v. Allen County, 44 Ohio St. 226, 6 N.E. 246, 58 Am. Rep., 821. There the plaintiff was employed by the defendant, Allen county, as superintendent of the stone and brick work in the construction of a court house, at a monthly salary of $100, the employment to last until the stone and brick work should be completed. Before the completion of such work the defendant discharged the plaintiff but the services actually performed had been fully paid for. It was held that there could be a recovery of damages for the wrongful discharge but that an action would not thereafter lie for further recovery of wages or damages. The underlying reasons given by the court were that the doctrine of constructive service was unsound; that the discharge of plaintiff operated to terminate the contract; and that the discharge amounted to a breach of the contract for which an action for damages could be maintained, without right to further relief.
In that case the rights were determined according to the principles of the common law. In the instant case the rights of the parties must be determined according to the provisions of the Teachers' Tenure Act, Section 7690-1 et seq. (119 Ohio Laws, 451), now Section 4842-7 et seq., General Code (120 Ohio Laws, 540). This difference in approach is the pivotal point on which the instant case turns.
The plaintiff, having been employed as a teacher in the schools of Youngstown by the board of education for more than five consecutive years prior to September 1, 1941, came within that part of Section 7690-2, General Code, which then read:
"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."
What is said in this opinion is to be restricted to continuing contracts coming within the scope of that provision.
There is no doubt of plaintiff's right to continuing contract status," that is, to "employment under a continuing contract." Any question as to that right was settled in the mandamus proceeding. The failure or refusal of the defendants to formally enter into a continuing contract in obedience to the writ of mandamus does not forestall the right of plaintiff to maintain an action for the salary to which she would be entitled under such a contract. Poehls v. Young et al., Bd. of Edn., City of Youngstown, 144 Ohio St. 604, 60 N.E.2d 316. In that case a peremptory writ of mandamus had been issued commanding the board of education to enter into a continuing contract with the teacher, for the school year 1941-1942. She never received such a contract and was not assigned a school. Thereupon she brought an action to recover salary for that period. It was held that the board of education was "liable for the amount of salary the teacher would have received for that year had the board complied with the provisions of the statute." The recovery was limited to one year because at the end of the year the teacher retired.
This court is therefore committed to the principle that, where the right to a continuing contract has been established in a mandamus proceeding, but through default of the board of education no contract has been entered into and no school assigned, the teacher may maintain an action for salary.
The defendants herein maintain that the plaintiff is claiming a breach of contract and that she should be restricted to one recovery therefor. As no contract was formally entered into, there could be no breach in a strict sense. What was the nature of the defendants' wrong? The board of education is not vested with any discretion as to the terms of the continuing contract, except as to increase of salary and as to reduction of salaries by a uniform plan affecting the entire district. Section 7690-3, General Code, now Section 4842-9, General Code. Such a continuing contract has sometimes been denominated a "legislative contract." The General Assembly in the part of Section 7690-2 quoted above has expressly prescribed the qualifications and prior service which entitle a teacher to a contract of that kind. The legislative provisions constitute an offer to the teacher, and a fulfillment of the statutory requirements by the teacher constitutes such an acceptance as to impose upon the board of education the mandatory duty to enter into such a contract at the salary for the preceding school year (payable of course in like installments), or at the reduced salary fixed by a uniform plan, as provided by statute, if such a plan has been adopted. The defendants' wrong consisted in disregarding the statute and failing to obey the writ of mandamus and assign plaintiff a school. The defendants' course of conduct constituted a breach of official duty rather than a breach of contract.
Restricting the plaintiff to a single recovery for damages would be inconsistent with that part of Section 7690-1, General Code, now Section 4842-7, which read thus:
"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." (Section 7896-34, General Code, provides for voluntary retirement at the age of sixty and retirement by the board at seventy.) Had the continuing contract been formally entered into, it would have remained in full force and effect until ended in one of the ways provided by statute. Obviously the board of education could not put an end to the contractual relationship by its own wrongful and unlawful conduct. Where, after the continuing contract is entered into, the teacher is deprived of a teaching assignment and the salary, the doctrine of constructive service applies and the teacher may maintain an action for past-due salary and for subsequent installments of salary so long as the contract remains in full force and effect.
Applying the principle pronounced in Poehls v. Young, supra, we hold that the board of education is liable for the amount of salary the plaintiff would have received, if the board had in all respects complied with the applicable statutory provisions. The case of James v. Allen County, supra, has no application and is distinguished.
The second question arises on the defendants' cross-appeal in this court. The question is: Does the second amended petition state a cause of action for a declaratory judgment?
This court in determining what recovery may be had is compelled incidentally to pass upon the question regarding which a declaratory judgment is sought. The plaintiff in her second amended petition states facts which are sufficient to warrant recovery of her salary for the two school years 1941-1942 and 1942-1943, and by supplemental petition may bring in subsequent installments of salary as they become due and payable during the pendency of the action. In determining the sufficiency of a petition, and the relief warranted by the facts alleged, the prayer is not controlling. The second amended petition does not state a cause of action for a declaratory judgment but only a cause of action for salary. The entering of the declaratory judgment therefore constituted prejudicial error.
After all, this decision must rest upon the evidence. The undisputed facts do not entitle plaintiff to a declaratory judgment but do entitle her to a judgment for the salary that would have been due and payable had the continuing contract been entered into as required by statute.
The Court of Common Pleas committed prejudicial error in entering a declaratory judgment and in failing to fix the amount of salary to which the plaintiff was entitled and render judgment in her favor therefor; and the Court of Appeals committed prejudicial error in affirming the judgment of the trial court.
For such errors the judgments of the courts below are reversed and the cause is remanded to the Court of Common Pleas for further proceedings not inconsistent with the syllabus of this opinion.
Judgment reversed and cause remanded.
WEYGANDT, C.J., ZIMMERMAN, BELL and HART, JJ., concur.
MATTHIAS, J., not participating.