Appeal
from district court, Cascade county; J. B. Leslie, Judge.
Action
by G. H. Jay, as assignee of a teacher's claim for
services, against school district No. 1 of Cascade county.
From a judgment overruling a demurrer to the complaint
defendant appeals. Reversed.
Action
by plaintiff, G. H. Jay, as assignee of one Helen Edgerton
to recover the sum of $120 for the services of said Helen
Edgerton as teacher in the public schools of school district
No. 1, Cascade county, Mont. The complaint, after alleging
the corporate capacity of the defendant, proceeds: "(2)
That on the 1st day of June, 1899, the board of trustees of
the defendant district, by a written order made and entered
at a regular meeting of said board had and held in the city
of Great Falls, in said district, county, and state, entered
into an agreement and contract with one Helen Edgerton, who
possessed and still possesses a good and legal certificate as
teacher, by which the said board employed and hired the said
Helen Edgerton as a teacher in the public schools of said
district for the term of nine and one-half months, to begin
at the beginning of the ensuing school year, to wit, on the
first Monday. September, 1899, and at a salary of one hundred
and twenty dollars per month. (3) That the said Helen
Edgerton entered into said contract with said board of
trustees, and accepted, in writing, said employment as
teacher for the time so agreed upon, and that she entered
upon the discharge of her duties as such teacher on the first
Monday of September, 1899, and has continuously performed her
duties in all respects as such teacher since that date; that
said board has had full knowledge of the performance of said
services by said Helen Edgerton, and has accepted the same
and consented thereto, though no express contract or
agreement has ever been entered into between said board and
said Helen Edgerton, save and except on the 1st day of June
1899, as aforesaid; that said board has further certified and
acknowledged that the sum herein sued for, to wit, one
hundred and twenty dollars, is due and owing said Helen
Edgerton for such services as teacher for the month ending
December 22, 1899. (4) That at the time of the employment of
said Helen Edgerton by said board as aforesaid, on the 1st
day of June, 1899, the money on hand and available to the
credit of said defendant district amounted to the sum of
fourteen thousand four hundred and forty-six and 80/100
dollars; that out of said sum were paid the salaries of
teachers and other expenses of the school for the balance of
the school year after said contract was made, leaving on hand
the sum of seven thousand eight hundred and ninety-five and
99/100 dollars on the first Monday of September, 1899, the
date of the beginning of the current school year, and that
this said last-named sum was fully used and exhausted in
paying the salaries and other school expenses for said month
of September. (5) That since said date there has been no
other money to the credit of said district wherewith to pay
the salaries of any of the teachers employed in the schools
of said districts, but that the salaries of all the teachers
employed in the schools of said district for the months of
October and November have been paid by a local bank, to which
said teachers have assigned their claims against said
district; that there is no money to the credit of, or
available for, said district at the present time; that the
general levy for school purposes made by the board of
commissioners for the year 1899 under and by virtue of
section 1940 of the Session Laws of 1897 was three and
one-half mills on the dollar, and, had the commissioners made
a levy of five mills for such purpose, the additional sum of
$8,758.89 could and would have been collected as taxes for
the use of said school district No. 1, and such sum would
thereby have been sufficient to pay all expenses of running
the schools of said district up to the ___ day of February
1900. (6) That said district has not paid said Helen Edgerton
her salary for the month ending December 22, 1899, or any
part thereof, but that her said month's salary, to wit,
one hundred and twenty dollars, is wholly unpaid, and has
been due and owing to her from said district since the 22d
day of December, 1899. (7) That in the employment of the
corps of teachers for the present school year, including the
said Helen Edgerton, for the term of nine and one-half
months, as hereinbefore stated, and at the time hereinbefore
stated, to wit, on or about June 1st of the year, the board
of trustees of the defendant district have acted as has been
usual and customary with the board of trustees of said
district, and as the educational and school interests of said
district require. (8) That the total number of teachers
employed for the current school year in said district is 43,
their salaries aggregating $3,700 per month, and that the
average number of children residing in said district and
attending the public schools thereof for the current school
year is 1,500; that a well-equipped high school is embraced
in the public-school system of said district, and that the
educational and school interests of said district require
that the said schools should be kept open and maintained for
at least nine and one-half months of each and every school
year. (9) That the electors of said school district did on
the 8th day of September, 1899, vote a special tax by which
the sum of $27,125.40 would have been collected in order to
continue and maintain said schools for said period of nine
and one-half months, but that, on account of the decision of
the supreme court declaring inoperative the law under which
said tax was voted, no part of said taxes has or can be
collected. (10) That unless the contract heretofore made by
the board of trustees of said district with the teachers in
said public schools, including the contract with said Helen
Edgerton, can be enforced by a good and valid judgment
against said district, to be paid by moneys that may
hereafter come into the treasury of said district, then it
will be necessary that the schools of said district should
forthwith be closed, and the educational and school interests
of said district will accordingly be seriously crippled and
impaired. (11) That the total indebtedness of every kind
against said district does not exceed the sum of $182,500,
nor has it exceeded that sum at any time mentioned in this
complaint; that the total assessed valuation of the property
of said district is $8,345,276." After alleging the
assignment of the claim to plaintiff, the complaint concludes
with a demand for judgment for the sum of $120 and costs of
suit. To this complaint the defendant interposed a general
demurrer, and on the 9th day of January, 1900, the court,
after consideration of the questions presented by the
demurrer, overruled the same. Thereupon, the defendant having
refused to plead further, judgment was rendered against it
for the amount claimed. The defendant appeals from this
judgment.
BRANTLY
C.J. (after stating the facts).
1.
Counsel for appellant argues that the judgment is void
because founded upon a contract made in contravention of an
express prohibition of section 1756 of the Political Code, as
amended by Sess. Laws 1897, p. 129. This section, as it
originally stood, provided that no school district should be
entitled to receive any apportionment of school money unless
all the teachers employed in the schools therein during the
three months next preceding the apportionment held
certificates of fitness for teaching. As amended it provides
"The school trustees or school board of any district who
shall employ any teacher in the public schools of their
district for a period of more than three months or who shall
not hold a legal certificate of fitness for the occupation of
teaching, in full force and effect, shall be deemed guilty of
a misdemeanor." The obvious purpose of this provision,
counsel says, is not only to prohibit altogether the
employment of teachers who have not certificates of fitness,
but also, in all cases, to limit the term of employment to
three months. Counsel for respondent assumes the position
that the intent and purpose of the section is to prohibit
only the employment for a period longer than three months of
teachers not holding the required certificate; leaving the
trustees to make the term of employment of qualified teachers
to suit their own notions of their duty, and the necessities
of their particular district. The argument is that a reading
of the section according to its obvious grammatical sense
requires the conjunction "or" to be considered as
properly connecting the two relative pronouns,
"who," making them both refer to the same
antecedent, viz. trustees or board; thus showing the manifest
absurdity that a trustee not holding a certificate of
qualification is guilty of a misdemeanor. To avoid this
absurdity, he says, we must omit entirely the connective
"or," as surplusage. The
latter relative, "who," will then grammatically
refer to the word "teacher," and thus it will
appear that it is the purpose of the section to punish
trustees who assent to the employment of teachers for more
than three months when they have no certificate. The
suggestion is also made that under the old section the moneys
apportioned to a district were withheld as a punishment to
the district, when its trustees failed to observe the law in
employing teachers, while the sole purpose of the amended
section is to shift the punishment to the trustees
personally. Any other view of the statute, it...
