Campbell et al. v. Aldrich et al.

• Decision Date: 10 May 1938
• Citation: 159 Or. 208,79 P.2d 257
• Parties: CAMPBELL <I>v.</I> ALDRICH ET AL. KIGGINS ET AL. <I>v.</I> ALDRICH ET AL. McCORD ET AL. <I>v.</I> ALDRICH ET AL.
• Court: Oregon Supreme Court

159 Or. 208

79 P.2d 257

CAMPBELL

v. ALDRICH ET AL.

KIGGINS ET AL. v. ALDRICH ET AL. McCORD ET AL. v. ALDRICH ET AL.

Supreme Court of Oregon.

Argued March 31, 1938.

Reversed May 10, 1938.

Constitutional law — Contracts

1. Ordinarily it is function of legislature to make laws and not contracts, although legislative enactments may contain provisions which, when accepted as basis of action by individuals, become contracts between them and state.

Constitutional law — Statutes — Contracts

2. The intention of legislature to create contractual obligation by statute resulting in extinguishment to a certain extent of governmental powers must clearly and unmistakably appear, and intention to surrender legislative control over matters vitally affecting public welfare cannot be established by mere implication.

Schools and school districts — Teachers' tenure

3. The 1913 teachers' tenure law providing that teachers should be placed upon list of permanently employed teachers after serving two years as probationary teachers and should not be subject to annual appointment, but should continue to serve until dismissed in manner provided, did not clearly and plainly indicate legislative intent to surrender sovereign power of state subsequently to alter its educational policy.

Schools and school districts — Teachers' tenure

4. Where 1913 teachers' tenure law did not indicate legislative intent to surrender power of state to change its educational policy, any vested contractual rights acquired by teachers under that law were required to yield to different educational policy determined through proper exercise of police power in enactment of 1935 teachers' tenure law providing for compulsory retirement of teachers who had reached age of 65 years.

Schools and school districts — Governmental function

5. It is a function of government to establish and maintain public schools.

Schools and school districts — Police power

6. Public education and control thereof is a proper subject for exercise of state's police power.

Constitutional law — Compulsory retirement

7. Whether legislation making it compulsory for teachers to retire at age of 65 was wise was not for court to determine in deciding whether or not passage of legislation constituted proper exercise of police power.

Schools and school districts — Compulsory retirement

8. The compulsory retirement of teachers at age of 65 was not so arbitrary or unreasonable as to render statute providing therefor improper exercise of state's police power.

Schools and school districts — Police power

9. That teachers seeking to enjoin enforcement of statute making it compulsory for teachers to retire at age of 65 were efficient and well qualified was immaterial in determining whether passage of statute was proper exercise of state's police power, since law was not enacted to fit individuals but the average teacher of age of 65.

Schools and school districts — Compulsory retirement

10. The statute providing for compulsory retirement of teachers at age of 65 in school districts of 20,000 or more population, but permitting teachers over 65 years of age to teach in nontenure districts, was not invalid on ground that there was no reasonable basis for classification of districts on basis of population.

Constitutional law — Classification

11. Where there is any reasonable basis for classification contained in statute, discretion exercised by lawmaking body is conclusive, and courts will interfere only when classification is unreasonable or arbitrary.

Schools and school districts — Compulsory retirement

12. The statute providing for compulsory retirement of teachers of age of 65 in school districts of 20,000 or more population, but permitting teachers over 65 years of age to teach in nontenure districts, was not invalid on ground that it denied equal protection of law, since compulsory retirement provision applied alike to all teachers within same class.

                  Construction and validity of tenure statute, note, 110 A.L.R
                792, 794
                

In Banc.

Appeal from Circuit Court, Multnomah County.

H.D. NORTON, Judge.

Suit by A.A. Campbell, by C.M. Kiggins and others, and by Jesse McCord and others, against C.W. Aldrich and others, as the Board of Directors of School District No. 1, and another, in each of which Birdine Merrill and others intervened, wherein the plaintiffs sought to enjoin the defendants from enforcing or attempting to enforce the compulsory retirement provision of the teachers' tenure law. Decree for plaintiffs, and defendants appeal.

REVERSED.

W. Lair Thompson, of Portland (McCamant, Thompson, King & Wood, of Portland, on the brief), for appellants.

B.G. Skulason, of Portland (Skulason & Skulason, of Portland, on the brief), for A.A. Campbell and others.

R.R. Bullivant, of Portland, for C.M. Kiggins and others.

Thaddeus W. Veness, of Portland, for Birdine Merrill and others.

BELT, J.

The plaintiffs, who are teachers in the public schools of District No. 1, Multnomah county, Oregon, challenge, by these consolidated suits, the validity of section 20 of chapter 125, Oregon Laws for 1935, known as the teachers' tenure law, requiring the retirement by February 1, 1938, of all teachers employed by said school district who, at that time, shall have reached the age of 65 years. A general demurrer was overruled as to all the complaints — there being no material difference in the same — and, upon refusal of the defendants and interveners further to plead, a decree was entered enjoining the defendants from enforcing or attempting to enforce the compulsory retirement provision of the above section as applied to the plaintiffs. Defendants appeal.

The plaintiffs assert that, by virtue of the original teachers' tenure law (Ch. 37, Oregon Laws for 1913) they acquired certain contractual rights as permanently employed teachers, which cannot be impaired by subsequent legislation. More specifically, it is contended by plaintiffs that section 20 of the teachers' tenure law of 1935, in so far as the same is applied to them, is unconstitutional in that, (1) it impairs their contractual rights (Sec. 21, Art. 1, Constitution of Oregon and Sec. 10, Art. 1, Constitution of the United States); (2) deprives them of their property without due process (Fourteenth Amendment to the Constitution of the United States); and, (3) denies them equal protection of the laws (Fourteenth Amendment to the Constitution of the United States).

The effect of the demurrers is to admit that the plaintiffs are on the "list of permanently employed teachers" and that they are "in every way qualified, ready, able, and willing to continue in said employment and to discharge the duties thereof". No charge is made of improper action of the board of directors in requiring the retirement of the plaintiffs as teachers, if the law is valid. The action of the district board is pursuant to statute and is based upon the fact that the plaintiffs, on February 1, 1938, had attained the age of 65 years, or more, and for no other reason. The sole issue, therefore, is whether the legislature had the power to enact section 20 of the 1935 teachers' tenure law, making it compulsory for teachers to retire at the age of 65 years.

Since the alleged contractual rights of the plaintiffs are bottomed on the tenure act of 1913, it is well at this juncture to set forth, so far as material herein, the provisions of the act (Ch. 37, Oregon Laws for 1913). The act is entitled:

"AN ACT To provide for the employment and discharge of teachers, officers, and other employees in school districts now having or which at any time hereafter shall have a population of 20,000 or more persons."

"Section 1. The board of directors of every school district in this State now having or which at any time hereafter shall have a population of 20,000 or more persons shall have the power and authority to appoint and remove, hire and discharge all teachers, officers, agents and employees as it may deem necessary, and to fix their compensation. * * *

"Section 3. The teachers employed in any such district or districts, during their first two years of service shall be classed as probationary teachers. * * *

"Section 4. Teachers who have been employed in the schools in any such district or districts as regularly appointed teachers for not less than two successive annual terms shall by the board of directors be placed upon the list of permanently employed teachers.

"Section 5. Teachers so placed upon such list shall not be subject to annual appointment, but shall continue to serve until dismissed or discontinued in the service by the board in the manner herein provided, subject to the rules of the board concerning suspensions, but such rules shall be reasonable and for the good of such schools. * * *"

Sections 6, 7, 8 and 9 provide procedure for dismissal of teachers upon charges filed.

"Section 10. All teachers who shall have been employed in such district or districts two or more years prior to the first day of July, 1913, shall be eligible to re-election as permanent teachers, and all such teachers who shall be re-elected for employment by the board for the school year beginning in September, 1913, shall be permanent teachers under the provisions of this act.

"Section 11. All acts and parts of acts in conflict herewith are hereby repealed. Provided, however, that all general laws of this State relating to public schools shall be applicable to districts under this act except in so far as the same may be in conflict with the provisions hereof."

The above act remained unchanged, so far as the term of employment of teachers is concerned, until 1933 when the legislature (Ch. 196, Laws of Oregon for 1933) added the following provisions:

"* * * provided, however, that from and after the first day of February, 1938, when any teacher, as the word `teacher' is defined in section 35-2602, Oregon Code 1930, shall have, prior to said date, attained the age of 65 years, and...