Bruck v. State ex rel. Money, 28626

• Decision Date: 30 March 1950
• Docket Number: No. 28626,28626
• Citation: 228 Ind. 189,91 N.E.2d 349
• Parties: BRUCK et al. v. STATE ex rel. MONEY.
• Court: Indiana Supreme Court

Page 349

91 N.E.2d 349

228 Ind. 189

BRUCK et al. v. STATE ex rel. MONEY.

No. 28626.

Supreme Court of Indiana.

March 30, 1950.

G. R. Redding, Indianapolis, Dan R. Winchell, Indianapolis, Baker & Daniels, Indianapolis (of counsel), for appellants.

Bell & Bell, Indianapolis, Ellis H. Bell, Indianapolis, Harold J. Bell, Indianapolis, for appellee.

GILKISON, Judge.

Relator filed his amended complaint in two paragraphs in the court below.

In paragraph I he avers in substance as follows: That he was born May 10, 1880. That he accepted the provisions and privileges of Chapter 256 of the Acts of the General Assembly of Indiana 1921, known as the Indiana State Teachers' Retirement Fund Law, on July 1, 1927; and thereafter accepted the provisions of: Chapter 328, Acts 1945, December 26, 1946; Chapter 353, Acts 1947, June 21, 1948; Chapter 130, Acts 1949, June 10, 1949.

That he entered into a teaching contract with the Board of School Commissioners of the City of Indianapolis September 1, 1916, and has taught school under teaching contracts for the School City of Indianapolis continuously since, to and including the school year 1948, 1949. That as a part of such continuous service he taught for five years immediately prior to the passage of Chapter 67, Acts 1927, and immediatly thereafter, entered into contract for further teaching service with such board, and thereby became a permanent teacher, vested with an indefinite contract and right to a definite contract. That such indefinite contract never has been cancelled, and is now in full force and effect.

That the indefinite contract is evidenced by annual written contracts, all within the knowledge of defendants. A copy of the annual written contract for the year 1948-1949 is attached marked 'Exhibit A'.

That no attempt has been made by defendants to cancel relator's indefinite contract. That on May 25, 1949, a written notice of termination of employment was mailed to relator by Virgil Stinebaugh, Superintendent of Schools of Indianapolis, a copy of which is attached and marked 'Exhibit B'.

Relator has demanded a definite contract and teaching contract for the school year 1949-1950. That ever since May 1, 1949 and now relator is ready, willing, able, properly liensed and in all ways qualified to teach, to receive a contract and an assignment for a teaching position and has offered his services to the time of filing this complaint. That defendants have failed, refused and neglected to give relator a contract and assignment to teach in the School City of Indianapolis for the school year 1949-1950. That relator's compensation for the year 1949-1950 under the salary schedule adopted would be $4800 and relator has been damaged by reason of the facts alleged in the sum of $6000.

Prayer that a mandate issue commanding defendants to enter into a definite contract with relator to teach in the School City of Indianapolis for the school year 1949-1950, or in lieu thereof that relator recover damages in the sum of $6000 and all other proper relief.

In paragraph II of complaint relator makes similar averments as in paragraph I except he does not claim that he now has an indefinite contract with defendants that is now in full force and effect. On the contrary he avers that he entered into a written contract with the defendants to teach in the public schools of the City of Indianapolis for the school year 1948-1949, ending June 30, 1949, for an agreed sum, and that said contract was duly performed by each of the parties. A copy of the contract is attached marked 'Exhibit A'. That by virtue of his contract with defendants for the school year 1948-1949 and its performance relator became a teacher in the public schools of the city and entitled to all the rights and privileges granted to a public school teacher not possessing the rights of permanent teacher as defined in Chapter 97 of the Acts of 1927 and Acts amendatory thereof. That relator was not notified by the School City of Indianapolis on or before May 1, 1949, in writing delivered in person or mailed to him at his last and usual known address by registered mail, and his contract would not be renewed for the succeeding year. That relator did not deliver or mail by registered mail to the Board of School Commissioners of the City of Indianapolis his written resignation as a teacher in the schools of the School City of Indianapolis; nor was relator's contract for the school year 1948-1949 superseded by another contract between the parties.

That relator is entitled to have his 1948-1949 contract to teach renewed and continued in full force and effect for the school year 1949-1950 on the same terms and for the same wages plus any increase as provided by Chapter 101 of the Acts of 1907 and acts amendatory thereof known as the Teachers' Minimum Wage Law, plus any increase due as provided by any salary schedule adopted by the School City of Indianapolis, effective for the school year 1949-1950.

Relator then avers his qualification and willingness to teach, the refusal of defendants to give him a contract to do so; that his compensation as a teacher under the salary schedule as adopted for the school year 1949-1950 is $4800, and he is injured in sum of $6000 by reason of defendants' refusal to give him a teaching contract for such year.

Prayer for mandate against defendants commanding them to enter into a definite contract with relator for school year 1949-1950 or in lieu thereof that he recover damages of $6000 and all proper relief.

A general demurrer filed to the first paragraph of amended complaint was sustained. Relator elected to stand thereon, refused to plead further, and judgment was rendered against him.

For the alleged error in sustaining this demurrer, appellee files cross-error herein.

A general demurrer filed to the second paragraph of amended complaint was overruled, defendants refused to plead further, elected to stand on their demurrer, and judgment was rendered against them thereon. From this judgment the appeal is taken.

By the assignment of cross-error we are required to determine the sufficiency of paragraph I of the amended complaint and by the appeal we are required to determine the sufficiency of paragraph II of the amended complaint.

With respect to the first paragraph of amended complaint it will be noted that relator became a permanent teacher with an indefinite contract of appellant school corporation upon the execution of his teacher contract for the school year 1927-1928 agreeable with Sec. 1, Chapter 97, Acts 1927, page 259, Sec. 28-4307, Burns' 1948 Repl. without the 1933 amendment contained therein. In 1933, Sec. 1 was amended so far as applicable to this case thus: '* * *. Such an indefinite contract shall remain in force until such permanent teacher shall have reached the age of sixty-six (66) years unless succeeded by a new contract signed by both parties or unless it shall be canceled as provided in section two of this act * * *.' Section 1, Ch. 116, p. 716, Acts 1933.

By Section 2 of the Act, § 28-4308, Burns' 1948 Repl., the school corporation may cancel the indefinite contract, after notice and hearing, for incompetency, insubordination, neglect of duty, immorality, justifiable decrease in the number of teaching positions or other good and just cause, but may not cancel it for political or personal reasons. Under this statute, if the teacher should become incapacitated by reason of old age, sickness in body or mind, or for any other good and just cause the school corporation may cancel the indefinite contract. No question is presented as to a cancellation of the contract under Section 2 of the Act, there being no such cancellation. It is contended that the 1933 amendment above noted does not apply to relator's status as a permanent teacher with an indefinite contract which became effective with the execution of his definite written contract with appellant to teach for the school year 1927-1928.

Among the powers denied to states are the following: ' No state shall * * * pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.' (Our italics.) Art. 1, § 10, Constitution United States.

Art. 1, § 24 of the Constitution of Indiana provides: 'No ex post facto law, or law impairing the obligation of contracts, shall ever be passed.' (Our italics.)

The obligations of a valid contract are protected by both the State and Federal Constitutions. Heath v. Fennig, 1942, 219 Ind. 629, 632, 40 N.E.2d 329. State ex rel. Cunningham v. Helms et al., 1893, 136 Ind. 122, 133, 35 N.E. 893, and cases cited. Edwards v. Jagers et al., 1862, 19 Ind. 407, 413. Johnson v. Board of Commissioners of Randolph County, 1894, 140 Ind. 152, 157, 39 N.E. 311.

'If a contract is valid when executed, which contemplates the lapse of several years before all of its terms are carried out, it must be held to reemain valid and enforceable to the end, under the laws in force at the time of its execution, no matter what changes the law has undergone in the lifetime of the contract.' Security Savings & Loan Ass'n v. Elbert, 1899, 153 Ind. 198, 204, 54 N.E. 753, 755. State ex rel. Cunningham v. Helms et al., 1893, 136 Ind. 122, 133, 35 N.E. 893, supra. Bowlby v. Kline, 1902, 28 Ind.App. 659, 662, 63 N.E. 723.

There can be no question that in Indiana the status of permanent teacher with an indefinite contract is based wholly upon contract and when this status was created by a contract under Section 18 Ch. 97, page 259, Acts 1927, as in the instant case, it cannot be impaired by future legislation except in a proper exercise of the police power of the state. This is conceded by the parties, and appellants insist that that part of the amendment of 1933, heretofore copied in this opinion is but a valid exercise of the police power of the state and that it applies to permanent teachers with indefinite contracts whose rights became established prior...