Gottschalck v. Shepperd

• Decision Date: 27 April 1935
• Docket Number: No. 6349.,6349.
• Citation: 260 N.W. 573,65 N.D. 544
• Parties: GOTTSCHALCK v. SHEPPERD et al.
• Court: North Dakota Supreme Court

65 N.D. 544

260 N.W. 573

GOTTSCHALCK

v.SHEPPERD et al.

No. 6349.

Supreme Court of North Dakota.

April 27, 1935.

Syllabus by the Court.

1. An administrative officer, while acting within his jurisdiction in discretionary matters wherein he is given quasi judicial powers, is not liable in a civil action, no matter what his motives may be.

2. Section 23 of the state Constitution, which provides that “any person * * * maliciously interfering or hindering in any way, any citizen from obtaining or enjoying employment already obtained, * * * shall be deemed guilty of a misdemeanor” is for the benefit of citizens only.

Appeal from District Court, Cass County; P. G. Swenson, Judge.

Action by Carl A. Gottschalck against J. H. Shepperd and others. From an order sustaining demurrers to the complaint, plaintiff appeals.

Affirmed.

Clair F. Brickner, of Fargo, for appellant.

Nilles, Oehlert & Nilles, of Fargo, for respondents.

BURR, Judge.

This is an appeal from an order sustaining demurrers to the complaint.

The complaint shows that at all times involved the defendant Shepperd was president of the State Agricultural College, and the remaining defendants members of the board of administration; that ever since June, 1919, the plaintiff was one of the professors in the college; that this appointment was permanent, subject to removal for cause; that the school was governed by a constitution adopted by the predecessors of the board of administration and ratified by this board; this constitution provided that before dismissal the professors were entitled to have the charges against them stated in writing and to be given a hearing; that “the defendants arbitrarily and summarily dismissed the plaintiff without any just cause or reason and without making any investigation and without holding any hearing and without any knowledge of any facts which might be material to the exercise of any discretion and further that the said summary dismissal was arbitrarily malicious, illegal, and with the intent on the part of each of the defendants to damage, harm and injure the plaintiff and because of personal prejudice and in defiance and disregard of their official duties to ascertain any fact or facts upon which to base any judgment as to the facts”; that it was the duty of the president to consult the deans of the various schools and directors or heads of the departments in the matter of a dismissal of a member of the faculty; that in violation of these provisions defendant Shepperd made false and malicious statements to the board of administration designed to injure and damage the plaintiff, and that by reason thereof he lost his position as professor without any charges being filed against him, and without any opportunity to be heard; that as a result plaintiff was damaged in his good name and reputation and has been, and will be, unable to secure other employment. He asks for damages for this loss and for the loss of future earnings, etc.

The defendant Shepperd demurred to the complaint on the grounds that it failed to state facts sufficient to constitute a cause of action, and that several causes of action have been improperly united. The remaining defendants demurred on the same grounds, and also that there was a defect of parties defendant. The trial court sustained the demurrers, and the plaintiff appeals.

The government and management of the Agricultural College, when first established, was vested in a board of trustees. Section 1605, Comp. Laws 1913. This board was empowered “to employ a president and necessary teachers, instructors and assistants to conduct such school” (section 1609, Comp. Laws 1913); and was given the power to “remove the president or subordinate officers and supply all vacancies.” Section 1611, Comp. Laws 1913. Under the provisions of chapter 237 of the Session Laws of 1915, this supervision of the college was placed in the hands of a board of regents with the same powers and duties, including “power to elect * * * professors * * * and shall fix the compensation paid them.” Section 7. By the provisions of chapter 71 of the Laws of 1919 this supervision was placed in the hands of the board of administration, and it was provided in such statute that the said board “shall assume all the powers and perform all the duties of the * * * State Board of Regents. * * *” Section 5.

[1] The plaintiff is not seeking a review of the action of the board of administration so as to be reinstated as a professor; nor is he seeking to recover salary under the theory of breach of contract. His action is in tort for damages. The main question before us, then, is whether the members of the board of administration, acting as such board under the powers conferred and in the discharge of the duty required, are liable in damages, even if they act maliciously.

[2] It is clear from the statute that the government, management, and administration of the college are vested by law in the board of administration with full power to appoint and dismiss professors. A professor or teacher is not a public officer. He is a mere employee of the board. Hartigan v. Board of Regents, 49 W. Va. 14, 38 S. E. 698, 700;People v. New York Post Graduate Medical School, 29 App. Div. 244, 51 N. Y. S. 420;Mayor, etc., et al. v. Lyman, 92 Md. 591, 48 A. 145, 52 L. R. A. 406, 84 Am. St. Rep. 524. It is true the board may agree with a professor to employ him for an indefinite term. We are not concerned here with the question of how far one group of board members may bind groups subsequently appointed, and this is not involved. It is also true the board may agree with a professor not to remove him without a hearing, and to give him a copy of the charges upon which the hearing is to be based; but this does not alter his status. It may give him cause of action for salary in case his contract is broken in this respect, but such situation is not presented here. While there may be the distinction of social grade in dignity, there is no difference in nature between the employment of a teacher in the college and a teacher in the other grades of public schools. All are employees of the board hiring them, and the relation is one of contract only. See Mootz v. Belyea et al., 60 N. D. 741, 236 N. W. 358, 75 A. L. R. 1347;Butler v. Regents, 32 Wis. 124;State Board v. Meyers, 20 Colo. App. 139, 77 P. 372. A mere violation of the contract does not render the board personally liable. Morrison et al. v. McFarland, 51 Ind. 206.

The authorities are not in harmony on the question of whether officers, nonjudicial in character, but exercising quasi judicial powers, can be held personally liable while exercising such powers if they act maliciously. That judicial officers cannot be so held is settled beyond controversy. Root v. Rose et al., 6 N. D. 575, 72 N. W. 1022;Landseidel v. Culeman et al., 47 N. D. 275, 181 N. W. 593, 13 A. L. R. 1339;Broom v. Douglass et al., 175 Ala. 268, 57 So. 860, 44 L. R. A. (N. S.) 164, Ann. Cas. 1914C, 1155;Jones v. Brown et al., 54 Iowa, 74, 6 N. W. 140, 37 Am. Rep. 185.

This immunity is extended in this state to officials who are not strictly judicial officers. Kittler v. Kelsch, 56 N. D. 227, page 245, 216 N. W. 898, 905, 56 A. L. R. 1217. Therein it is stated: “The doctrine of exemption of judicial and quasi judicial officers is founded upon a sound public policy, not for the protection of the officers, but for the protection of the public. * * *” It is true this case was dealing with a state's attorney-the prosecuting official, so closely allied with the courts that he may personally make complaints and file informations without the interposition of the grand jury-and there is eminent authority to the effect that the immunity of administrative officers, called upon to exercise quasi judicial powers, is “only partial and limited by good faith and honest purpose.” Cooley on Torts (3d Ed.) 800. After citing cases showing that “members of a school board may be held responsible for the dismissal of a teacher, if they act maliciously and without cause,” and with reference...