Dye v. School Dist. No. 32 of Pulaski County

• Decision Date: 08 July 1946
• Docket Number: 39771
• Citation: 195 S.W.2d 874,355 Mo. 231
• Parties: Burley A. Dye, Appellant, v. School District No. 32 of Pulaski County, Missouri, and Melvin Cordry, C. O. Hill and E. M. Dye, as Directors of said District
• Court: Missouri Supreme Court

195 S.W.2d 874

355 Mo. 231

Burley A. Dye, Appellant, v. School District No. 32 of Pulaski County, Missouri, and Melvin Cordry, C. O. Hill and E. M. Dye, as Directors of said District

No. 39771

Supreme Court of Missouri

July 8, 1946

Appeal from Pulaski Circuit Court; Hon. William E. Barton Judge.

Reversed and remanded (with directions).

Cusick & Robinson for appellant.

(1) The court was in error in refusing to strike out parts of respondents' answer, and in permitting respondents to inject foreign and irrelevant issues into an action for breach of contract. The petition was grounded upon breach of contract, and the issues should have been confined thereto. The Superintendent of Schools of a county is the sole authority on the qualifications of a teacher to teach school in such county. Tate v. School District No. 11 of Gentry County, 23 S.W.2d 1013, 324 Mo. 722. (2) Under the new Missouri Code of Civil Procedure, error may be assigned on failure of a lower court to properly rule upon motions relating to pleadings, though the movent plead over and go to trial on the merits. Sec. 66, General Code for Civil Procedure, p. 375, Laws 1943. (3) The court erred in not confining the issues to a breach of contract, and in injecting in the case matters irrelevant and not decisive of the case, in that the court found the existence of the contract, the failure to give notice, and the damage alleged but refused to enter judgment, upon an assumption that the funds available for payment of teachers's salary had been unlawfully used for another purpose. Sec. 10342A, Laws 1943 p. 890. (4) A school district is liable for breach of contract even though it hires another teacher for the same year, and teacher whose contract is broken is not required to await end of agreed term before suing for or obtaining judgment. Boswell v. Consolidated School Dist. No. 8, 10 S.W.2d 665; Edwards v. School District No. 73, 297 S.W. 100, 221 Mo.App. 47; Wood v. Consolidated School District No. 13, 7 S.W.2d 1018; Bailey v. Jamestown School District No. 11, 77 S.W.2d 1017; Tate v. School District No. 11, supra; Burns v. School District of Desloge, 50 S.W.2d 677; Sec. 10343, R.S. 1939. (5) The court erred in injecting into this case the matter of collection of any judgment which might have been rendered. This, under the law and the evidence as given, was for the judgment creditor to settle with the judgment debtor in ancillary action, if required. State ex rel. v. Hamilton, 136 S.W.2d 699; State ex rel. v. Knight, 121 S.W.2d 762; Security State Bank v. Dent County, 137 S.W.2d 960, 345 Mo. 1050; State ex rel. v. Renner, 148 S.W.2d 809. (6) The court erred in finding in his statement of grounds upon which his decision was based that payment of a judgment in favor of appellant would exceed the constitutional limit, and in considering that question, for the reason that such question was not properly pleaded, and the levy of the district was not the constitutional limit. Mo. Const., Art. 10, Sec. 11; Secs. 65, 66, General Code for Civil Procedure, p. 375, Laws for Missouri, 1943.

T. A. Shockley for respondents.

(1) That the appellant cannot recover under Section 10342A, Laws of Missouri, 1943, page 890. The section is so written that it excepts other provisions of law governing the employment of teachers and with that exception the School Board is to give notice, etc., this school on account of low attendance and under 15 average daily, was required to employ a teacher with 60 or more college hours to qualify for the state apportionment. (2) This law was passed by the Legislature and approved April 16th, 1943, by the Governor, however no emergency clause was attached to the bill, and indeed there was no emergency, the Legislature adjourned in July, 1943, and all laws passed during the session not containing an emergency clause, did not go into effect until 90 days after the adjournment, therefore this law went into effect in November, 1943, long after the contract in question was made, certainly if the law is good it would not be retroactive and affect contracts made long before the law went into effect. (3) The Legislature if prohibited from passing a law impairing the obligation of contracts or retrospective in its operation. Mo. Constitution, Art. II, Sec. 15. (4) A statute which takes any vested right acquired under existing laws or creates a new obligation or imposes a new duty, or attaches a new disability in respect to transactions already passed is retrospective. Realty Co. v. Schneider, 396 Mo. 687. (5) This provision means that no statute relating to past transactions can be constitutionally passed which affects a substantial prejudice to the rights of parties interested. Kreyling v. O'Reilly, 97 Mo.App. 384; Willhite v. Rathburn, 61 S.W.2d 708. (6) Statute or amendment which makes obligations begin at an earlier date than the law went into effect is retrospective and unconstitutional. Graham Paper Co. v. Gehner, 59 S.W.2d 49; Gray v. School District, 20 S.W.2d 657. (7) The district could not obtain the teaching unit in State money by hiring a teacher with less than 60 hours college credits, since their average daily attendance was less than 15. (8) Section 10454, Revised Statutes of Missouri, 1939, provides the method of apportioning money to school districts with 15 or more daily attendance which in fact means that if the district has the attendance, any teacher, regardless of the kind of certificate or college hours may be employed and the district may still receive the full teaching unit. (9) A school district with less than 15 daily attendance receives their apportionment under Section 10390, Revised Statutes of Missouri, 1939, unless they employ a teacher with 60 or more college hours, to employ the appellant to teach this school for the year 1943-44, when he had no accredited college hours, their apportionment would of been made under Section 10390 which would of made funds available to pay teachers wages of about one-half the amount necessary to pay $ 100 per month, all of which the respondents were prohibited from doing under the Constitution without a two-thirds vote of the people of the district. (10) The district could not exceed its debt limit by a judgment in favor of plaintiff. Mo. Constitution, Art. X, Sec. 12; Clarence Special School Dist. v. School Dist. No. 67 of Shelby County, 107 S.W.2d 5.

OPINION

Ellison, J.

The first question to be decided is whether this court has jurisdiction of this appeal under Sec. 12, Art. VI, Const. Mo. 1875, on the ground that a constitutional question is involved. The appeal was taken on February 26, 1945, to the Springfield Court of Appeals. That court transferred the cause to this court, and in a short opinion [Dye v. School Dist., 190 S.W.2d 467] pointed out, among other things, that after the appeal had been taken the parties filed a written stipulation in the trial court conceding the respondents had there raised a constitutional question which they would present on appeal, and agreeing that the cause be transferred to this court, subject to our decision on our jurisdiction. It is well established, as the Court of Appeals held, that appellate jurisdiction cannot be conferred by mere consent. Higgins v. Smith, 346 Mo. 1044, 1047(3), 144 S.W.2d 149, 151(4). So we must inquire into the point regardless of their agreement.

As will be noted, the aforesaid stipulation says the respondents raised constitutional questions below. And that is a fact. But they won the case and did not appeal. It is the appellant who is invoking our jurisdiction. A banc decision, Schildnecht v. City of Joplin, 327 Mo. 126, 128(2), 35 S.W.2d 35, 36(3), in ruling on a similar question quotes a statement from two earlier cases that constitutional ^[1] "protection must have been denied the party invoking it by that (trial) court, and such party must have been the losing party in the trial court." Now the appellant here, being the losing party below, that far comes within the quoted formula: but he did not raise the point and seek constitutional protection there. On the contrary, he maintained the Constitution did not apply. In so doing he took the negative side on the constitutional question raised by respondents. Having lost, he appealed and brings the same question here. Consequently, we believe he is entitled to invoke our jurisdiction on the ground that a constitutional question is involved, if it appears from the record that the trial court ruled the case on that question. To that extent we think the Schildnecht case should be modified or explained. The trial court did so decide the case. But to demonstrate that it is necessary to state many of the facts; and since we have concluded the cause is properly here, we shall state all of them now.

The appellant at the time here involved was about 50 years old and the holder of a second grade teacher's certificate under Sec. 10625 in Pulaski county. He was teacher for the school year 1943-44 in School District No. 32 of the county a rural district five miles west of Waynesville. The respondents were the then members of the school board, and the district, itself. Appellant's employment for that school year was under a written contract dated August 5, 1943, stipulating a salary of $ 100 per month or $ 800 per year. The statute ^[2] provides that "except as . . . otherwise provided by law" it shall be the duty of every school board "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 . . ." The respondent school board failed to give the statutory...