Lemasters v. Willman

Decision Date16 August 1955
Docket NumberNo. 29342,29342
Citation281 S.W.2d 580
PartiesE. M. LEMASTERS, Plaintiff-Appellant, v. E. F. WILLMAN, Charles H. Collins, Dale F. Smith, William R. Peister, Charles F. Schmidt and Russell Dohrmann, Individually and as Directors Comprising the Board of Education of the School District of Riverview Gardens, St. Louis County, Missouri, and the School District of Riverview Gardens, St. Louis County, Missouri, Defendants-Respondents.
CourtMissouri Court of Appeals

Aubrey B. Hamilton, St. Louis, for appellant.

Norman C. Parker, St. Louis, for respondents.

SAM C. BLAIR, Special Judge.

Plaintiff-appellant is superintendent of schools for the town school district of Riverview Gardens in St. Louis County. He has served continuously since February 1, 1935, by force of various consecutive three-year contracts with its board of education. Section 165.147, V.A.M.S. His current contract became effective July 1, 1953, and was written to expire on June 30, 1956. The board of education for the school district is composed of six directors. Sec. 165.010(3). Defendants-respondents are those six directors.

On October 27, 1954, the board, its directors voting 4 to 2, ordered plaintiff-appellant dismissed from his position as superintendent. He refused to submit. He contended the board had no authority to dismiss him by any procedure for any cause and that any authority to do so lay elsewhere. He insisted on continuing to discharge his functions. Naming all directors defendants, he sued for a declaratory judgment pronouncing the order wholly void and for a decree enjoining all measures to enforce it. Two of the directors, Smith and Pelster, answered and admitted all averments of his petition. They joined him in his prayer for declaratory and injunctive relief. The four other directors, Kastrup, Willman, Jost, and Collins, answered him by denying that the order was void and by averring that it was altogether legal. They counterclaimed. They prayed for a decree enjoining him from attempting to discharge any of his functions, from 'entering upon the premises or in the building of any school in said district during school hours', and from 'molesting or interfering with the harmonious conduct of the school program or class recitations.'

The trial court did not grant the superintendent a declaratory judgment or an injunction or any relief at all. Instead it dismissed his petition. It found for the directors on their counterclaim and entered a decree enjoining him from 'performing or attempting to perform any of his duties' and from 'entering upon the premises or in the building of any school in said district during school hours without the express consent of a majority of the board of education of said district.' The superintendent appeals. He seeks reversal of the decree granted defendants and he prays for the declaratory judgment and the injunction the trial court refused. We refer to the parties as they were styled in the trial court.

Questioned by this appeal are (1) the authority of the board of education to dismiss plaintiff by any procedure for any cause or whether that authority resides elsewhere, and (2) whether injunction is available to him to prevent enforcement of the order of dismissal if defendants have no authority to dismiss him.

Originally school boards had authority 'to dismiss any teacher at any time for such reasons' as they might 'deem sufficient.' G.S.1865, p. 260, Sec. 12. In 1870 the school laws were revised and for some reason this authority of school boards to dismiss teachers was dropped. School boards insisted they still had an implied authority to dismiss teachers. In 1883, in Arnold v. School Dist., 78 Mo. 226, the supreme court ruled that the general assembly, dropping the former authority to dismiss, meant to deprive school boards of all authority, express or tacit, to dismiss teachers, and had placed it beyond their reach and in other hands. Consult footnote 1 for an explanation of the Arnold case, for the placement of authority to dismiss teachers, and for the procedure for their dismissal which obtained then and governs now. 1

The authority to dismiss teachers has never been restored to school boards. On the contrary, the general assembly, in 1889, satisfied with the Arnold ruling, made it statutory law by providing: 'The board shall have no power to dismiss a teacher; but should the teacher's certificate [to teach] be revoked,' his 'contract is thereby annulled. * * * Should the teacher fail or refuse to comply with the terms of the contract, or to execute the rules and regulations of the board, the board may refuse to pay said teacher--after due notice, in writing, is given by order of the board--until compliance therewith is rendered.' Laws 1889, p. 224, Sec. 7046a, now Sec. 163.100. Since then our courts have repeatedly applied the Arnold case and inflexibly enforced Section 163.100. Armstrong v. School Dist., 1885, 19 Mo.App. 462, 466; Frazier v. School Dist. No. 1, 1887, 24 Mo.App. 250, 254; Rudy v. School Dist. of Poplar Bluff, 1888, 30 Mo.App. 113, 118; Oakes v. Simrell, 1903, 98 Mo.App. 163, 71 S.W. 1060; Wood v. Consolidated School Dist. No. 13, 1928, Mo.App., 7 S.W.2d 1018, 1020; Tate v. School Dist. No. 11, 1930, 324 Mo. 477, 504, 23 S.W.2d 1013, 1026, 70 A.L.R. 771. There has been no departure.

Although plaintiff serves as superintendent for the district, he contends that as such he nevertheless is a 'teacher' within the meaning of our school laws and that he is entitled to the protection of Secs. 163.100 and 168.090, and cannot be dismissed unless competent authority revokes his certificate or certificates to teach. He holds several such certificates. A determination that he is a teacher within the meaning of these laws would force a decision that the board had no authority to dismiss him. Our courts have not decided this question. The rulings in other jurisdictions defining the status of school superintendents, and of other supervisory personnel, construe statutes so unlike our own that they are of no aid or relevance. 2 Our decision must rest on a construction of our own laws.

Searching to determine whether plaintiff is a 'teacher' and immune from dismissal by the board, examination can be made of the general school laws, laws dealing with special school subjects, school laws enacted at the same time or on widely different dates, school laws once in force and later repealed, and contemporary history of those enactments. State v. Bengsch, 170 Mo. 81, 107, 70 S.W. 710, 717; State ex rel. Clark v. Gordon, 261 Mo. 631, 646, 170 S.W. 892, 896; Childress v. Southwest Missouri R. Co., 141 Mo.App. 667, 688, 126 S.W. 169, 176; State ex rel. Columbia Nat. Bank of Kansas City v. Davis, 314 Mo. 373, 388, 284 S.W. 464, 470. Judicial notice can be taken of school history that is common knowledge for no requirement forces courts to profess an ignorance of subjects with which all men of ordinary affairs are familiar. Hudgins v. Mooresville Consol. School Dist., 312 Mo. 1, 14, 278 S.W. 769, 772; State ex rel. Missouri Southern R. Co. v. Public Service Commission, 259 Mo. 704, 724, 168 S.W. 1156, 1163; State ex rel. City of Booneville v. Hackmann, 293 Mo. 313, 319, 240 S.W. 135, 136.

Originally no express authority existed for employment of school superintendents. School boards were merely granted a general authority to employ 'legally qualified teachers.' Laws 1870, p. 141, Sec. 7, now Sec. 163.080. In 1889 school boards in cities of 100,000-300,000 were granted express authority to employ a superintendent. Laws 1889, p. 255, Sec. 7154b, now Sec. 165.387, amended to embrace cities of 75,000-500,000 organized into a single district. In 1897 school boards in cities of 500,000 or more were granted express authority to employ a superintendent and 'as many assistant superintendents as it may deem necessary.' Laws 1897, p. 224, Sec. 7, now Sec. 165.587.

The statutes granting express authority to employ superintendents, when enacted, of course applied only to St. Louis and Kansas City. Other schools were characterized by law as 'city, town and village schools.' Boards presiding over those schools employed all school personnel under the general authority to employ teachers and no statute granted them any express authority to employ superintendents. But the common knowledge of men of ordinary affairs who have lived long enough in this state is that city and town school districts, or many of them, were employing superintendents as early as 50 years ago. Reliance for verification of this history need not rest heavily on common knowledge. The general assembly itself has verified it. In 1907 it amended the laws relating to such schools by providing: 'Any board, * * *, may elect a principal or a superintendent of any city, town or village school for a term of two years, providing such principal or superintendent has previously been twice annually elected to said position and has served in said capacity for at least two successive years.' Laws 1907, p. 428. Clearly this was recognition by the general assembly that city, town, and village school authorities then were employing superintendents and supervisory personnel and doing so under the general authority granted by Section 163.080 to employ teachers. It was the only possible authority for doing so. For it authorized those boards to employ superintendents and principals provided those employed had 'previously been twice annually elected to said position' and had 'served in said capacity for at least two successive years.'

In 1909 all laws relating to city, town, and village schools were repealed. Substituted was an entirely new enactment establishing common, consolidated, town and city school districts. Laws 1909, p. 770, now Sec. 165.010. These districts were granted no express authority to employ superintendents. Common knowledge is that they did employ superintendents. Again the general authority to employ teachers was the only...

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