Anderson v. Bd. of Educ. of Sch. Dist. No. 91, 28698.

• Decision Date: 23 May 1945
• Docket Number: No. 28698.,28698.
• Citation: 61 N.E.2d 562,390 Ill. 412
• Parties: ANDERSON v. BOARD OF EDUCATION OF SCHOOL DIST. NO. 91 et al.
• Court: Illinois Supreme Court

390 Ill. 412

61 N.E.2d 562

ANDERSON

v.BOARD OF EDUCATION OF SCHOOL DIST. NO. 91 et al.

No. 28698.

Supreme Court of Illinois.

May 23, 1945.

Appeal from Circuit Court, Warren County; Burton A. Roeth, judge.

Mandamus proceeding by Julia O. Anderson against the Board of Education of School District No. 91 and others, to compel the reinstatement of plaintiff as a teacher and for payment of back salary. From a judgment for defendant an appeal was taken to the appellate court and the case was transferred to the Supreme Court, on defendant's motion that constitutional questions were involved.

Judgment affirmed.

Leonard W. Melburg and Edward B. Love, both of Monmouth, for appellant.

Safford, Kritzer & Fulton, of Monmouth, for appellees.

FULTON, Chief Justice.

This case comes to this court by transfer from the Appellate Court for the Second District on appellees' motion therein that constitutional questions were involved. This appeal involves the validity, construction and application of portions of the School Law of the State of Illinois entitled, ‘An Act to amend Sections 114, 115, 127 and 127a of ‘An Act to establish and maintain a system of free schools', approved June 12, 1909, as amended, and to add Section 127 3/4 thereto,’ approved July 21, 1941. (Laws of 1941, p. 1153; Ill.Rev.Stat.1941, Chap. 122, pars. 122, 123, 136, 136b and 136c.) The portions of the act in controversy are generally known, are hereinafter referred to as the Teacher Tenure Law, and are found in section 127 3/4 of the School Law.

The case arose in the trial court on appellant's petition for writ of mandamus to compel the board of education of School District No. 91, Warren county, Illinois, known as the Roseville school, to reinstate her as a teacher and for payment of back salary. Appellant's first petition was stricken on motion of the appellees, who are also referred to in this opinion as defendants, and an amended petition for mandamus was filed on July 2, 1943, which, on motion of appellees, was dismissed by the circuit court. Appellant, hereafter referred to as petitioner, elected to stand by her petition, and an appeal was perfected to the Appellate Court to the October term, A. D. 1943, where on December 28, 1943, the said court reversed and remanded the cause to the circuit court, with directions to overrule the motion to dismiss. Anderson v. Board of Education, of School Dist. No. 91, Warren County, 321 Ill.App. 163, 52 N.E.2d 273. The court there stated that inasmuch as the record failed to show on what ground the motion to dismiss was sustained and the constitutional questions not having been preserved for the purposes of the appeal, the question of the validity of the statute was deemed waived. That court further held that ‘We are of the opinion that (the petition) contained sufficient allegations to require an answer.’ The cause was redocketed in the circuit court on March 8, 1944, which court entered an order on that date, pursuant to the mandate of the Appellate Court, overruling defendants' motion of July 6, 1943, to dismiss petitioner's amended petition. On said date defendants filed a motion to dismiss petitioner's amended petition on constitutional grounds, which motion was overruled by the court. An answer was then filed wherein defendants raised these same constitutional points as affirmative defenses, which briefly were that section 127 3/4 is unconstitutional and invalid for the reason that said statute violates and conflicts with section 13 of article IV of the constitution of the State of Illinois, Smith-Hurd Stats., in that (a) the act of which said statute is a part embraces more than one subject, or, in the alternative, (b) the subject of said act is not expressed in the title; second, that said statute is unconstitutional and invalid because it violates and conflicts with section 22 of article IV of the constitution in that said statute is special or ‘class legislation;’ third, that the said statute is unconstitutional and invalid for the reason that it violates and conflicts with section 14 of article II of the State constitution and with section 10 of article I of the constitution of the United States, in that said statute impairs the obligation of contracts. The trial court, on motion of the petition, struck those portions of the answer, and defendants have assigned cross-errors on said ruling in the appeal to this court. Defendants were granted leave to refile their motion to dismiss the amended petition on constitutional grounds. Said motion was refiled, and the trial court overruled said motion. After the case was set for trial on the pleadings as they stood on agreement of the parties, a reply to said answer was filed on September 21, 1944, and defendants filed a motion to strike the reply to their answer, which motion was overruled by the court.

The amended petition alleged that petitioner had been employed by the defendants as a teacher in said district for 23 years prior to May 29, 1942; that on May 4, 1940, she entered into a written contract with defendants to teach from September 1, 1940, to June 1, 1941, at a stipulated salary and that she taught during said nine months pursuant to this contract; that on May 2, 1941, she entered into a contract in writing with defendants to teach from September 1, 1941, to June 1, 1942, at a stipulated salary and that she taught during said nine months pursuant to said contract; that she received written notice from defendants on April 18, 1942, that she would not be employed for the coming year; that thereupon petitioner notified defendants she claimed contractual continued service by virtue of the Teacher Tenure Law; that she presented herself at the school on September 1, 1942, but defendants refused to accept her services and assign her for work. The answer admittedsome of these allegations and denied others. In addition, the answer of defendants, for an affirmative defense, alleged that petitioner had never been employed for a probationary period as required by section 127 3/4 of the School Law ‘and that Relator's employment by said Board of Education during the years 1940, 1941 and 1942 was employment wholly apart from any intention expressed or implied of either Relator or Defendants that such employment should be a ‘probationary period’ under the terms and provisions of said statute relied upon by Relator.' To this affirmative defense petitioner filed a reply admitting that petitioner's employment during 1940, 1941 and 1942 was wholly apart from any intention expressed or implied of either party that such employment should be a probationary period under the terms of the statute relied on, but alleging that such employment became probationary automatically by operation of law. Petitioner, on a hearing in open court, introduced evidence supporting the allegations of her petition. At the conclusion of petitioner's evidence defendants made a motion for judgment, which motion was allowed by the court and the petition for writ of mandamus was denied and the suit dismissed at petitioner's costs. An appeal was taken by the petitioner to the Appellate Court, and after the filing of the record, abstracts and briefs of the parties, the case was transferred to this court as hereinabove set forth.

The act in question became effective July 21, 1941, and it is important to keep the effective date in mind. The act provides that ‘Whenever any teacher shall have been employed in any district as a full time teacher for a probationary period of two consecutive years, one of which shall be subsequent to the date that this Act shall take effect, such teacher shall enter upon contractual continued service unless given written notice of dismissal, stating the specific reason therefor, by registered mail by the employing board at least sixty days before the end of such probationary period.’ The act then goes on to provide that such contractual continued services shall continue in effect from year to year, the terms and provisions of the contract with the teacher during the last year of such probationary period, subject to the provisions of the act and the lawful regulations of the employing board, and subject to a right of removal of the teacher for specified causes, but only after full hearing, the procedure for which is thereafter very fully provided for, and such contractual continued service shall cease at the end of the school term following the sixty-fifth birthday of any teacher. It is the construction of the above-quoted part of section 127 3/4 that is in dispute in this case.

Counsel for petitioner, in their original brief and argument which contains 76 pages, and in their reply brief which contains 89 pages and which raises and argues a multitude of questions, both constitutional and nonconstitutional, rely upon the following reasons for reversal: (a) that the previous decision of the Appellate Court in this case ruled directly upon the basis of the trial court's instant judgment and held that the employment period prescribed by the statute was rendered automatically probationary by operation of law, without regard to the parties' original intentions; (b) the phrase ‘probationary period’ mentioned in the Teacher Tenure Law as a prerequisite to entering upon contractual continued service creates and defines an employment status which is automatically probationary solely by virtue of the statute and irrespective of the intent or agreement of the parties; (c) the Teacher Tenure Law is made retroactive in terms to affect teaching employment contracts made prior to its enactment.

Counsel for defendants contend that petitioner's employment was pursuant to two contracts both made before the Tenure Law took effect; that nowhere in the amended petition does petitioner allege in terms that she was employed by the defendants for ‘two consecutive years,’ one of which was subsequent to the date that the statute in question took effect or that she was employed for...