Bates v. The Bd. Of Educ. Of The County Of Mineral
| Decision Date | 27 September 1949 |
| Docket Number | (No. 10197) |
| Citation | 133 W.Va. 225 |
| Court | West Virginia Supreme Court |
| Parties | Pervis M. Bates v. The Board of Education of the County of Mineral, Et Al. |
Under the provisions of Code, 18-7-1, as amended by Chapter 53, Acts of the Legislature, 1939, the services of a teacher holding a "Teacher's Continuing Contract of Employment," executed while said statute was in force and effect, and in a form prescribed by the state superintendent of schools, may be terminated for cause by a board of education, upon giving to the teacher holding such contract the written notice provided for therein, which must state the cause or causes for such termination or where the need for the services of a teacher has ended; and, in the absence of gross abuse of discretion, lack of good faith, or arbitrary or fraudulant conduct on the part of the board, mandamus does not lie to control its action in the premises.
"Mandamus does not lie to compel a county board of education and a county superintendent of schools to recognize a person as a teacher in a particular school who has not been assigned to such school by the superintendent with the approval of the board." Weaver v. Board of Education, 128 W. Va. 42.
Mandamus proceeding by Pervis M. Bates against the Board of Education of Mineral County and others to compel the board to recognize relator as a teacher in the public schools, and to permit him to carry out his continuing contract.
Writ denied.
Lovtns, Judge, not participating; Riley, Judge, dissenting.
T. G. Nutter, C. E. Kimbrough, Sr., D. W. Ambrose, for petitioner.
D. C. Hott, for defendants. Fox, Judge:
In this proceeding in mandamus, wherein the original jurisdiction of this Court is invoked, Pervis M. Bates, hereinafter referred to as "relator," seeks to compel the defendant, The Board of Education of the County of Mineral, hereinafter referred to as the "board," and H. L. Idleman, Superintendent of Schools of said county to "* * * recognize him as a teacher in the public schools of said Mineral County, and for the school year of 1949-50 * * * " and "* * * to permit him to carry out his continuing contract * * *" alleged in his petition and for general relief. The facts on which this proceeding is predicated, as disclosed by the petition and the answer of the respondents filed herein, are as follows:
Effective July 1, 1940, there was issued to the relator a teacher's certificate under authority of Code, 18-7-15, authorizing him to teach the subject of industrial arts in the public schools of this State. The certificate states that "having met the certification requirements in the special fields named below," a certificate termed "high school certificate" was authorized, but, as stated above, was limited to the teaching of industrial arts. It was provided therein that the same should be valid until the first day of July, 1945, but it appears to have been renewed from time to time, and no question is raised as to the validity of the said certificate as of the date when this controversy arose.
On July 1, 1940, what is known as a "teacher's continuing contract of employment" was entered into between the board and the relator, pursuant to the provisions of Code, 18-7-1, as amended by Chapter 53, Acts of the Legislature, 1939. The statute under which said contract was executed reads as follows:
Some confusion arises as to the exact provisions of the contract on which the relator relies. He filed with his petition, as Exhibit No. 1, what purports to be a copy of the contract he signed on July 1, 1940, but there is contained in said exhibit in Subsection (h) thereof, the following language: "The expression 'cause or causes' as in this paragraph used shall mean failure on the part of the teacher to fulfill this contract or violation on the part of the teacher of a lawful provision thereof."
In the answer of the respondents, there is filed a photostatic copy of the contract of July 1, 1940, which bears the signatures of the president of the board, the secretary of the board, and that of relator, Pervis M. Bates. In that contract Subsection (h) reads:
" (h) That, in pursuance of Section 1, Article 7, Chapter 18 of the Code of West Virginia, Chapter 53, Acts of the Legislature 1939, this contract is a continuing contract of employment and shall remain in full force and effect, subject to all the provisions herein set forth, except as modified by mutual consent of the party of the first part and the party of the second part, unless and until terminated with written notice, stating cause or causes, to the party of the second part, by a majority vote of the full membership of the party of the first part before April first of the then current year, or by written resignation of the party of the second part before that date, and that such termination shall take effect at the close of the school year in which this contract is so terminated; but this contract may be terminated at any time by mutual consent of the party of the first part and the party of the second part."
The confusion probably arises from the fact that by Code, 18-7-1, it is provided that "* * * all teachers shall execute a contract with their boards of education, which contract * * * shall be in the form prescribed by the state superintendent of schools"; and it is quite apparent that subsequent to July 1, 1940, and before this proceeding was instituted, the state superintendent of schools had modified the form of the "Teacher's Continuing Contract of Employment" by adding the language quoted above as to the meaning of the expression "cause or causes." In our opinion, relator is bound by the contract of July 1, 1940, a photostatic copy of which is filed with the answer of the respondents, and which is certified by the state superintendent of schools as the form of contract approved by him.
In the contract of July 1, 1940, Subsection (j) reads as follows:
" (j) That this contract shall not operate to prevent the dismissal of the party of the second part based upon the lack of need for the services of the party of the second part pursuant to the provisions of law relating to the allocation of teachers and pupil-teacher ratios; but in case of the dismissal of the party of the second part on account of the lack of need of the services of the party of the second part pursuant to the provisions of law relating to the allocation of teachers and pupilteacher ratios, the party of the second part shall be placed upon a preferred list in the order of the length of services performed by the teachers employed by the party of the first part, and the party of the first part shall give due consideration of such list and order if and when vacancies or need occur.";
and the same contains in substance the provisions of Code, 18-7-1, quoted above. Section 1, aforesaid, was amended by Chapter 47, Acts of the Legislature, 1949, but the amendments made do not in any wise affect the question raised in the proceeding at bar, and, therefore, need not be considered.
According to relator's petition, he continued to teach in Howard High School, in Mineral County, from the beginning of the school year of 1940, until the end of the school year 1948-49, except for a period of approximately three and one-half years, during which time he was in the Armed Services. The petition also alleges that notwithstanding the fact that his certificate limited him to teaching industrial arts, he, as a matter of fact, was permitted and required to teach other subjects in said high school, such as plane geometry, algebra, seventh and eighth grade mathematics, physical science, general science, and physical education. The answer of the respondents admits this to be true; but denies the allegation of the petition that relator's services in teaching the subjects not embraced within his certificate were satisfactory. There is no proof on this point.
In November, 1947, as alleged in respondents' answer, the state supervisor of negro schools recommended to the board that it employ a science teacher in Howard High School, because no member of the staff, as then constituted, was qualified or certified to teach such courses. Following this recommendation, the board met on March 11, 1949, to consider its action with respect to Howard High School for the ensuing school year of 1949-50. At that time it was determined that the net enrollment for...
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...statute in West Virginia to transfer teachers and employees, W.Va. Code, 1931, § 18A-2-7, as amended. Bates v. Board of Education of Mineral County, 133 W.Va. 225, 55 S.E.2d 777 (1949). 4. A teacher has no personal right or property right9 under the United States Constitution to a limited, ......
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