77 OF LEWIS COUNTY, Van Dyke v. School Dist. No. 77 of Lewis County

• Decision Date: 24 July 1906
• Citation: 43 Wash. 235,86 P. 402
• Parties: VAN DYKE v. SCHOOL DIST. NO. 77 OF LEWIS COUNTY.
• Court: Washington Supreme Court

86 P. 402

43 Wash. 235

VAN DYKE v. SCHOOL DIST. NO. 77 OF LEWIS COUNTY.

Supreme Court of Washington

July 24, 1906

Appeal from Superior Court, Lewis County; A. E. Rice, Judge.

Action by J. F. Van Dyke against school district No. 77 of Lewis county. From a judgment for plaintiff, defendant appeals. Reversed.

Rudkin and Fullerton, JJ., dissenting.

Reynolds & Stewart, for appellant.

George Dysart and Maurice A. Langhorne, for respondent.

HADLEY J.

This action was brought to recover for an alleged breach of contract. The plaintiff alleges that he was employed by the defendant school district to teach a school for a period of nine months from and after September 1, 1902, at $60 per month: that he entered upon the performance of the contract on the above-named date, and continued the same until November 14, 1902, when the defendant refused to permit him to teach for a longer time, and notified him that he was discharged; that no charges were ever made against him by the board of directors, and that the action of the directors in discharging him was arbitrary and without cause on the part of plaintiff; that he had performed all his obligations under the contract; that he refused to accept the discharge, and at all times during said period of nine months held himself in readiness to perform his contract, but was prevented from so doing by the defendant. After interposing certain motions and a demurrer to the complaint, the defendant answered, alleging certain facts tending to show misconduct on plaintiff's part in the treatment of a pupil, and other facts concerning alleged mismanagement of the school, and also alleging that he did not appeal from the action and decision of the board of directors to the county superintendent, by reason of which he is now estopped from recovering in this action. The cause was tried by the court without a jury, and resulted in a judgment in favor of plaintiff in the sum of $250, from which defendant has appealed.

A number of errors are assigned, but we believe the determination of the appeal calls for the discussion of one subject only. It is conceded that respondent did not appeal from the action and decision of appellant's board of directors to the county superintendent. It was the court's view that this action may be maintained, even though such appeal was not taken. Appellant contended otherwise in the court below, and it urges the same contention here. We shall now examine that subject. Section 2318, Ballinger's Ann. Codes & St., provides as follows 'Any person aggrieved by any decision or order of the board of directors may, within thirty days after the rendition of the decision or making of such order, appeal therefrom to the county superintendent of the proper county. * * * At the time thus fixed for the hearing he shall hear the testimony of either party, and for that purpose may administer oaths if necessary, and he shall make such decision as may be just and equitable, which shall be final unless appealed from as provided for in this title.' Appeals also lie from the decisions of a county superintendent to the Superintendent of Public Instruction. On that subject section 2307, Ballinger's Ann. Codes &amp St. provides as follows: 'Any person or board of directors aggrieved by any decision or order of the county superintendent may, within thirty days after the rendition of such a decision or making of such order appeal therefrom to the Superintendent of Public Instruction. * * * The Superintendent of Public Instruction shall examine the transcript of such proceedings and render a decision thereon, but no new testimony shall be admitted, and his decision shall be final unless set aside by a court of competent jurisdiction.' It thus appears that the Legislature has outlined a complete chain of appellate procedure from decisions of boards of directors of school districts, and has provided that the decisions of the Superintendent of Public Instructions shall be final 'unless set aside by a court of competent jurisdiction.' The right of ultimate review by a court of competent jurisdiction in thus clearly recognized, and it was the evidence policy of the Legislature that matters pertaining to the schools and the conduct thereof shall be first examined and passed upon by the school officers named in the statute before resort may be had to the courts. Good reasons may be assigned for such a policy. The duties of the officers named relate particularly to the schools, and from their training and experience it may be supposed that they are peculiarly fitted to examine and pass upon questions which arise out of the manner of conducting schools, and which necessarily involve the competency and fitness of teachers. The qualifications of teachers, both as to learning and character, are, under our system of education, first passed upon by these officers, and, if subsequent conduct of the teachers calls for investigation as to their fitness, it would seem but reasonable that such conduct should be first reviewed by such school officers before resort may be had to the courts for the correction of alleged grievances.

It is argued that an appeal from the decision of the board of directors is merely optional, since the statute says any person aggrieved 'may' appeal. We think it manifest that such was not the purpose of the statute. Having reference to the evident policy of the Legislature as hereinbefore mentioned, we think the word 'may' as used in the statute, should be construed in a mandatory sense. 20 Am. & Eng. Enc. Law (2d Ed.) p. 237. Under a statute of the same import it was held in Iowa that a teacher could not at once maintain an action in the courts to recover for breach of contract, when he had not appealed from the decision of the board of school directors to the county superintendent. Kirkpatrick v. Independent School Dist of Liberty, 53 Iowa, 585, 5 N.W. 750. The same principle was recognized in Jackson v. Independent School Dist. etc., 110 Iowa, 313, 81 N.W. 596. To the same effect is Harkness v. Hutcherson, 90 Tex. 383, 38 S.W. 1120. In Burkhead v. Independent School Dist., etc., 107 Iowa, 29, 77 N.W. 491, it was held that, where a teacher was discharged without a hearing before the board of directors, he was not required to appeal before resorting to the courts. The statute of Iowa, however, especially enjoins upon boards of directors the duty of conducting such hearings in the presence of the teacher. Section 2782, Ann. Code Iowa 1897. The discharge of the teacher in that case consisted simply in a refusal to permit him to teach longer, on the alleged ground that there was in fact no existing contract. There was no question of competency or fitness involved, and it was held that, in the absence of some hearing and determination judicial in its character, there was nothing from which to appeal. Our statute does not seem to provide any particular method of procedure on the part of boards of directors in the discharge of teachers. Section 2311, Ballinger's Ann. Codes & St., enumerates their powers, and among others is the power 'to employ and, for...