Bd. Of Educ. Of Doerun v. Bacon

• Decision Date: 14 March 1918
• Docket Number: (No. 9397.)
• Citation: 22 Ga.App. 72,95 S.E. 753
• Parties: BOARD OF EDUCATION OF DOERUN. v. BACON.
• Court: Georgia Court of Appeals

22 Ga.App. 72

95 S.E. 753

BOARD OF EDUCATION OF DOERUN.

v.BACON.

(No. 9397.)

Court of Appeals of Georgia, Division No. 2.

March 14, 1918.

Adhered to on Rehearing April 23, 1918.

(Syllabus by the Court.)

Error from Superior Court, Colquitt County; W. E. Thomas, Judge.

Action by Eudora Bacon against the Board of Education of Doerun. Demurrer to petition overruled, and defendant brings error. Affirmed.

Parker & Gibson, of Moultrie, for plaintiff in error.

James L. Dowling, of Moultrie, R. J. Bacon, of Albany, and Erie B. Askew, of Moultrie, for defendant in error.

BROYLES, P. J. This was a suit for damages for the breach of a contract of employment, brought against the board of education of the town of Doerun, Ga., by one of its school-teachers. Her petition alleged that she had been employed by the board, under a special contract, to teach in its schools for a period of nine months at a salary of $50 per month; that after teaching for something over four months she was wrongfully discharged without notice and without cause; that she had sought diligently, but unsuccessfully, to secure other like employment to lessen the damages arising from the wrongful discharge. The defendant's general demurrer to the petition was overruled, and upon that ruling error is assigned.

The General Assembly, in creating the public school system of the town of Doerun (Georgia Laws 1901, p. 372), provided, In section 5 of the act (page 373):

"That said board of education shall have power to design and adopt a system of public school or schools, for said town; to appoint a superintendent and employ teachers * * *; to suspend or remove such superintendent or teachers; to fix their compensation; to provide schools by rent, building, or otherwise; to make and hold titles to such property; and to make rules and regulations for the government of said schools as they deem proper and not in conflict with the laws of this state; and to do any and all things promotive of the best educational interests of said town, not in conflict with the provisions of this act or the laws of Georgia."

It is insisted by the learned counsel for the school board that under the language of this act, to wit, "that said board of education shall have power * * * to suspend and remove such superintendent or teachers, " the board has the authority to dismiss a teacher at its pleasure, without cause, whether the teacher is a public "officer" or a mere "employed" We cannot agree with this contention. Possibly the board would have that authority in a case where it had made no contract with a teacher for a certain fixed time; but where it had made such a contract, in our judgment it could discharge a teacher for cause only, provided it had the authority to make such a contract; and, in our opinion, the latter question, to wit, whether the board of education of the town of Doerun had the authority to make the contract with the teacher in the instant case, is the only question to be determined. Nowhere in the act just quoted from is the board of education prohibited, either expressly or by reasonable implication from the language used, from making such contracts. It is insisted, however, that as this act did not expressly authorize the making of such contracts by the board of education, and as the term of the teachers' employment was not fixed therein, the teachers employed by the board held their positions at its pleasure, and that the board had no authority to change this status by fixing definite terms for such positions. In support of this contention counsel cite Wright v. Gamble, 136 Ga. 376, 71 S. E. 795, 35 L. R. A. (N. S.) 866, Ann. Cas. 1912C, 372. In that case the Supreme Court held as follows:

"Where the tenure of an office is not prescribed by law, the power to remove is an incident to the power to appoint. In such case the appointee holds at the pleasure of the appointing power, although it attempts to fix a definite term; and no formalities, such as the preferring of charges or the granting of a hearing to the incumbent are necessary to the lawful exercise of the authority of removal." Italics ours.

It is clear from the headnote and the language of the opinion that that decision adjudicated the rights of a holder of a public "office, " the tenure of which was not specifically prescribed by law, but the duties of which were. There Gamble, the plaintiff in the quo warranto proceedings, was a duly appointed and qualified public officer who had taken an official oath, and had given bond with security for the faithfulperformance of his duties; and who, after his removal from office, brought proceeding against his successor in office, for the purpose of regaining possession of the office. There was in Gamble's appointment to office no element of contract, as in the instant case. We find in the opinion in that case no language which would extend the doctrine there laid down (as applicable to a "public officer") to cover a contract of employment between the board of education of a town and a teacher employed by that board under a definite contract for a fixed period of time.

While a public school teacher is a public "employé, " we do not think he or she could be considered a public "officer" within the meaning of the ruling in the Gamble Case. As was said by Chief Justice Marshall, in United States v. Maurice, 2 Brock. 102, 26 Fed. Cas. 1211 (adopted in United States v. Schlierholz [D. G] 137 Fed. 616, 622):

"Although an office is 'an employment, ' it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act, or perform a service, without becoming an officer."

And in the Schlierholz Case it is said:

"An 'office' is defined to be 'an employment on behalf of the government in any station of public trust not merely transient, occasional, or incidental." It is "a special trust or charge created by competent authority. « * * The officer is distinguished from the employe in the greater importance, dignity, and independence of his position; in being required to take an official oath, and perhaps to give official bond; in the liability of being called to account as a public offender for misfeasance or nonfeasance in office; and usually, though not necessarily, in the tenure of his position." "The distinction is plainly taken between a person acting as a 'servant' or 'employé, ' who does not discharge independent duties but acts by the direction of others, and an 'officer' empowered to act in the discharge of a duty or trust under obligation imposed by the sanction and restraints of legal authority in official life." Italics ours. Pad-den v. City of New York, 45 Misc. Rep. 517, 519, 92 N. Y. Supp. 926, 928, and other authorities cited in 4 Words and Phrases (second series) 699, 700.

"Not every person in the service and pay of a municipal corporation is an officer. The distinction between an office and an employment is well recognized. * * * A janitor or a night watchman in a public building, a superintendent of public schools exercising no power except what is derived through the school board, a visiting physician at a public hospital, a fireman, and a filing clerk of the public records, are not officers." Italics ours. 19 Ruling Case Law, § 209, p. 912; Baltimore v. Lyman, 92 Md. 591, 48 Atl. 145, 52 L. R. A. 406, 84 Am. St. Rep. 524.

See, also, in this connection, 29 Cyc. 1366, C, 1367; Throop v. Langdon, 40 Mich. 673.

If a "superintendent of schools, exercising no power except what is derived through the school board, " is not an "officer, " a fortiori a mere teacher, under such a superintendent, is not. "A public office is the right, authority, and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleas ure of the creating power, an individual is vested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public." Mechem on Offices and Officers, § 1, pp. 1, 2, and authorities there cited. The warrant to exercise such powers or functions "Is conferred, not by a contract, but by the laic It finds its source and limitation in some act or.expression of governmental power." Italics ours. Wyman's Administrative Law, Public Officers, § 44, p. 143, and authorities there cited.

In distinguishing between an "office" and an "employment, " the fact that the powers in question are created and conferred by law is an important criterion. For though an employment may be created by law, it is not necessarily so, but is often, if not usually, the creature of contract. A public office, on the other hand, is never conferred by contract. As was said by Chief Justice Marshall in the Maurice Case, supra:

"I do not think that, the mere direction that a thing shall be done, without prescribing the mode of doing it, can be fairly construed into the establishment of an office for that purpose, if the object can be effected without one."

And, therefore, where the authority in question was conferred by a contract, it must be regarded as an "employment, " and not as a public...