Ellis v. Herrick Independent School Dist. 36 of Gregory County

• Decision Date: 10 November 1945
• Docket Number: 8778.
• Citation: 20 N.W.2d 516,71 S.D. 7
• Parties: ELLIS v. HERRICK INDEPENDENT SCHOOL DIST. NO. 36 OF GREGORY COUNTY.
• Court: South Dakota Supreme Court

20 N.W.2d 516

71 S.D. 7

ELLIS v. HERRICK INDEPENDENT SCHOOL DIST. NO. 36 OF GREGORY COUNTY.

No. 8778.

Supreme Court of South Dakota

November 10, 1945

W. J. Hooper, of Gregory, for appellant.

G F. Johnson, of Gregory, for respondent.

SICKEL Judge.

This is an action brought to recover on a teacher's contract. The complaint alleges that in September, 1943 the plaintiff entered into a contract with the defendant school district to act as its superintendent of schools for a term of nine months, for a consideration of eighteen hundred dollars payable at the rate of two hundred dollars per month; that on March 1, 1944, plaintiff was wrongfully dismissed by the board of education. Plaintiff demands judgment for the sum of six hundred dollars remaining unpaid according to the terms of the contract. Defendant moved for the dismissal of the action on the ground that plaintiff's exclusive remedy was by appeal from the decision of the board of education and that no such appeal had been taken. The motion was granted, and judgment was entered dismissing the action. Plaintiff appealed.

Appellant claims that the circuit court erred in dismissing the action on the grounds stated in the motion. His contention is that the appeal statute deprives the circuit court of jurisdiction vested in it by Art. V, § 14 of the state constitution.

The authority of a school board to dismiss a teacher is found in SDC 15.3809, which provides:

'A school board may dismiss any teacher at any time for plain violation of contract, gross immorality, or flagrant neglect of duty.'

The wrongful dismissal of a teacher amounts to a breach of his contract of employment and gives him a right of action for the damages resulting therefrom. Ordinarily, the question of whether the dismissal was wrongful is one to be decided in the damage action, but this procedure has been changed by statute. SDC 15.2033 provides that 'From a decision made by * * * any school board * * * relative to a school or school district matter * * * an appeal may be taken to the Circuit Court by any person aggrieved, * * *.'

The action of a board of education in dismissing a teacher, or terminating his contract is a decision relative to a school district matter and such decision is appealable to the circuit court under the provisions of the above statute. Downs v. Bruce Independent School Dist. No. 49, 45 S.D. 326, 187 N.W. 620. This decision was reversed in a subsequent appeal, reported in 52 S.D. 168, 216 N.W. 949, on the ground that the right of appeal from a decision of the board of education of an independent school district was omitted from the Code of 1919. This omission was remedied by § 81, Ch. 138, S.L.1931 now § 15.2033 of the Code of 1939. The trial in the circuit court is de novo, and on such trial a court 'shall enter such...