Board of Educ. of Choctaw County v. Kennedy

• Decision Date: 06 December 1951
• Docket Number: 2 Div. 296
• Parties: BOARD OF EDUCATION OF CHOCTAW COUNTY et al. v. KENNEDY.
• Court: Alabama Supreme Court

Page 511

55 So.2d 511

256 Ala. 478

BOARD OF EDUCATION OF CHOCTAW COUNTY et al. v. KENNEDY.

2 Div. 296.

Supreme Court of Alabama.

Dec. 6, 1951.

Lindsey & Christopher, Butler, for appellant.

Scott & Porter, Chatom, for appellee.

STAKELY, Justice.

L. J. Kennedy (appellee) is a teacher and high school principal of continuing service status in the public school system. of Choctaw County, Alabama. He has established his tenure by virtue of the fact that he has been employed under contract with the Board of Education of Choctaw County, Alabama, as principal of the South Choctaw High School at Silas, Alabama, for the last twenty-two consecutive years. § 352, Title 52, Code of 1940.

On or about March 30, 1951, L. J. Kennedy received notice in the form of a letter addressed to him from Wiley C. Allen, who was then Superintendent of Education of Choctaw County, Alabama, advising him that the Choctaw County Board of Education would meet on April 30, 1951, for the purpose of considering the cancellation of his contract with the Board of Education of Choctaw County. L. J. Kennedy requested a written statement of the reasons for considering the cancellation of his contract. Within a period of less than fifteen days after receiving notice of the time and place of the proposed consideration of the canceling of his contract, he requested in writing a hearing on the charges made against him by the County Board of Education. The County Board of Education set April 20, 1951, as the date for the hearing. The hearing was held at the appointed time at Butler, Choctaw County, Alabama. By agreement between the parties a reporter was present and transcribed all of the testimony and made up the record of this proceeding before the County Board of Education. Witnesses testified both for and against L. J. Kennedy. At the conclusion of the hearing the County Board of Education took under advisement the matter of the cancellation of the foregoing contract and on April 30, 1951 rendered their decision by resolution purporting to cancel the contract of L. J. Kennedy.

L. J. Kennedy then filed in the Circuit Court of Choctaw County, Alabama, a petition for writ of mandamus against the members of the County Board of Education and Wiley C. Allen, as Superintendent of Education of Choctaw County, Alabama (appellants), ordering them to vacate and annul their resolution and order purporting to cancel appellee's contract and further requesting the court to direct appellants to reinstate appellee as principal of the foregoing school and to renew his contract as principal. At the same time L. J. Kennedy filed in the Circuit Court of Choctaw County, Alabama, the transcript of the record of the proceedings held by the County Board of Education.

The Circuit Court of Choctaw County, Alabama, issued an alternative writ of mandamus as prayed for in the petition, directing appellants to show cause on or before the 19th day of June, 1951 as to why they should not be required to comply with the prayer of the petition. Appellants filed their answer to the petition and the appellee filed his replication thereto. On June 19, 1951 the court at a hearing set for the purpose reviewed the record of the proceedings before the County Board of Education, with the result that the court ordered a writ of mandamus to issue against appellants, directing them to reinstate appellee as principal of the foregoing school. The court found, as shown in its judgment or order, that the evidence offered at the hearing before the County Board of Education in support of the charges against appellee, was not sufficient to prove the charges and that the order and resolution of the County Board of Education was arbitrarily unjust. Appellants made a motion for a rehearing which the court overruled. This appeal followed.

I. The present proceedings were commenced by the Board of Education of Choctaw County for the cancellation of the contract of L. J. Kennedy under the provisions of the Teacher Tenure Law, § 351 et seq., Title 52, Code of 1940. It is claimed by appellants that this act is unconstitutional because it fails to provide for due process. But the County Board of Education cannot invoke action of the court under the statutes which comprise the Teacher Tenure Law and then later, when dissatisfied with the result, assail their own action on the theory that the statutes under which the action was taken are constitutionally offensive. Baldwin v. Kouns, 81 Ala. 272, 2 So. 638; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Larry et al. v. Taylor, 227 Ala. 90, 149 So. 104. It can be pointed out that no constitutional question was raised until the motion was made in the circuit court to set aside the judgment of the circuit court, which means that the constitutional question was raised too late. Vernon v. State, 240 Ala. 577, 200 So. 560, certiorari denied Vernon v. Wilson, 61 S.Ct. 837, 313 U.S. 559, 85 L.Ed. 1519; Alabama Cartage Co. v. International Brotherhood of Teamsters, etc., 250 Ala. 372, 34 So.2d 576, 2 A.L.R.2d 1273; 11 Am.Jur. p. 772. We could rest our opinion here but think it well to proceed so as not to leave any impression that the statute is lacking in due process requirements.

No particular form of procedure is prescribed for hearings under the statutes here in question but of course due process must be observed. This is the rule generally applicable as to hearings provided for by statute before administrative agencies. State ex rel. Steele v. Board of Ed. of Fairfield, 252 Ala. 254, 40 So.2d 689. The Teacher Tenure Law in its provisions clearly contemplates the rudimentary requirements of fair play with reasonable notice and opportunity to be present, information as to charges made and opportunity to controvert such charges, the right to examine and cross-examine witnesses and submit evidence and be heard in person and by counsel. Ex parte Homewood Dairy Products Co., 241 Ala. 470, 3 So.2d 58; Almon v. Morgan County, 245 Ala. 241, 16 So.2d 511; State ex rel. Steele v. Board of Ed. of Fairfield, supra. It is claimed that it is only required that a written statement be given the teacher of the reasons for cancellation of his contract and in other words that no evidence must be adduced against him on the hearing. The statute provides that the contract with the teacher can not be canceled until a hearing is held, if a hearing is requested by the teacher. The use of the word 'hearing' in § 357, Title 52, Code of 1940, shows a manifest purpose of compliance with the requirements of due process of law. 'A requirement of a hearing in the exercise of quasi-judicial powers has obvious reference to the tradition of judicial proceedings with respect to those fundamental requirements of fairness which are of the essence of due process in a proceeding of a judicial nature.' 42 Am.Jur. p. 481, § 138. 'It is the duty of the court to construe a statute so as to make it harmonize with the constitution if this can be done without doing violence to the terms of the statute and the ordinary canons of construction.' Almon v. Morgan County et al., 245 Ala. 241, 16 So.2d 511, 516. A statute can be adopted without expressly containing provisions which meet constitutional requirements but in such terms as not to exclude them, and so to justify a court in holding that the statute was intended to be subject to such requirements and considered as embodied in the statute. Montgomery Southern Railway Co. v. Sayre, 72 Ala. 443; Almon v. Morgan County et al., supra. In this connection in Almon v. Morgan County et al., supra, it was aptly said: 'And so when an act confers on an administrative officer or board the power and duty to make a conclusive finding of facts which affects the substantial rights of another, when to do so requires procedural due process, and there is nothing to indicate an intention that such process shall not be applied, the court may in carrying out the intention of the legislature hold that such process was intended to be applied, when to do so is necessary to uphold its contitutionality on that account. * * * This applies to one's tenure of office under an act providing for his removal for cause. * * *'

We have no hesitation in holding that the statutes in question meet the requirements of due process.

II. Citing State v. Board of Education of Fairfield, 252 Ala. 254, 40 So.2d 689, it is argued that the court erred in setting aside the action of the County Board of Education in canceling the contract of L. J. Kennedy and in reinstating him as a tenure teacher without making such reinstatement subject to another hearing before the County Board of Education. In the cited authority the teacher was prevented from presenting evidence which she had the right to present. Here the parties presented all the evidence which they wished to present or thought advisable to present and there is no...