Eyring v. Board of Regents of the New Mexico Normal University at Las Vegas, 5798

• Decision Date: 10 December 1954
• Docket Number: No. 5798,5798
• Citation: 1954 NMSC 123,59 N.M. 3,277 P.2d 550
• Parties: Edward EYRING, Plaintiff and Appellant, v. The BOARD OF REGENTS OF THE NEW MEXICO NORMAL UNIVERSITY AT LAS VEGAS, New Mexico, H. M. Mortimer, Georgia Abercrombie, Mary B. Romero, Frank Eliot McCulloch, and B. M. Werley, as Members of said Board of Regents, Defendants and Appellees.
• Court: New Mexico Supreme Court

Page 550

277 P.2d 550

59 N.M. 3

Edward EYRING, Plaintiff and Appellant, v. The BOARD OF REGENTS OF THE NEW MEXICO NORMAL UNIVERSITY AT LAS VEGAS, New Mexico H. M. Mortimer, Georgia Abercrombie, Mary B. Romero, Frank Eliot McCulloch, and B. M. Werley, as Members of said Board of Regents, Defendants and Appellees.

No. 5798.

Supreme Court of New Mexico.

Dec. 10, 1954.

Kiker & Kiker, Santa Fe, for appellant.

Gilbert, White & Gilbert, Santa Fe, for appellees.

LUJAN, Justice.

This is an appeal from a judgment dismissing the complaint of the plaintiff seeking damages for an alleged breach of contract. The ground of the motion, which the trial court sustained, was that the complaint failed to state a claim upon which relief could be granted. The plaintiff electing to stand on his complaint as filed, and having announced that he did not desire to further plead, the dismissal followed as a matter of course. This appeal is prosecuted to secure a reversal of the trial court's action.

Appellant (plaintiff) was employed by the Board of Regents of the New Mexico Normal University, appellee (defendant), as president of said university for the academic year commencing September 1, 1951, at a salary of $10,395 per annum. The employment originated in an express one for the year beginning September 1, 1939, and was created by the services of appellant being continued after the expiration of the original definite term of employment without objection by the appellee. On November 23, 1951, appellee purported to summarily terminate appellant's services. The Board of Regents, appellee, will be hereafter referred to as the Board.

The appellant alleged, substantially, as follows: That on November 22, 1951, while he was president of the above university he received from the president of the board a telegram notifying him that a meeting of said board would be held in appellant's office at nine o'clock in the forenoon of November 23, 1951; that he attended the meeting accompanied by counsel; that plaintiff's counsel stated to the board that if the purpose of the meeting was to consider the termination of appellant's employment as president of the university, that he was entitled by law to reasonable notice of the charges, if any, against him and to an opportunity to respond to such charges and to trial by the board; that appellant further pointed out to the board that by law he could be removed during the term for which he was appointed for cause only and after trial by said board; that plaintiff placed before said board and directly in front of its president Sec. 55-2803 of the 1941 Compilation; that the president of the board then stated that the board could not proceed as a judicial body; that thereupon a resolution was offered and adopted by said board calling upon the appellant to resign immediately as president of the university and that his salary was to continue through December 31, 1951; that after the resolution was adopted the president of the board asked appellant whether he had any comment to make on the resolution; that appellant through his counsel replied that he would not resign and that he had no comment on said resolution; that immediately thereafter a motion to dismiss appellant was made and duly seconded, although no charges were made in said motion and no trial of any charges against him was held by the board; that at said meeting another motion was made, seconded, and duly carried appointing Lisle Hosford to act as president of the university in the place and stead of appellant; that appellant thereafter held himself at all times ready, able and willing to perform the duties of president of the university throughout the academic year of 1951-1952; that appellant has received no compensation whatever pursuant to his contract of employment, for the period from February 1, 1952, to and including August 30, 1952.

Appellant further alleged that on January 12, 1952, he was duly served with a copy of a resolution adopted by the board at a meeting held January 11, 1952, which resolution set forth purported charges against him and notified him of a hearing and trial of the truth of said purported charges to be held before the board on January 19, 1952; that on January 19, 1952, the board undertook to hold a hearing upon said purported charges, at which hearing appellant appeared accompanied by counsel; that appellant through counsel inquired of the board whether or not the board then considered appellant as president of the university in view of their action of November 23, 1951; that the board declined to pass upon the question; that the appellant then declined to participate in the hearing.

Appellant further alleged upon information and belief that the board proceeded to hold a meeting on the charges referred to above, and to adopt a resolution purporting to discharge appellant as president of the university.

The New Mexico Normal University is a corporation created by statute, and its powers are thereby defined. 'Said normal schools shall each be controlled and managed by a board of regents * * *. Each such board shall constitute a body politic and corporate, and shall have power to sue and be sued, to contract and be contracted with, and the title to all property belonging to each such normal school shall be vested in the respective corporate bodies and their successors.' Sec. 55-2104 of 1941 Comp., 'Said boards of regents shall have full and complete power and control over their respective normal schools. Each board shall employ a superintendent or principal for such school who shall have the supervision and control of the school under such rules and regulations as may be provided by such board. Such board shall determine and provide as to what branches of learning shall be taught in such school and the classification and order of the same, and shall also direct the number of teachers that shall be employed, and shall determine the compensation to be paid to the superintendent and teachers. * * *' Sec. 55-2107 of 1941 Comp., 'No president or member of the faculty of any state educational institution shall be removed during the term for which he is elected, or appointed, except for cause, and after trial by the board of regents of his institution, * * *.' Sec. 55-2803 of 1941 Compilation.

Counsel for appellant contends that 'the motion to dismiss should be granted only...