Lommasson v. School Dist. No. 1, Multnomah County

• Decision Date: 07 October 1953
• Citation: 261 P.2d 860,201 Or. 71
• Parties: LOMMASSON v. SCHOOL DIST. NO. 1, MULTNOMAH COUNTY.
• Court: Oregon Supreme Court

Page 860

261 P.2d 860

201 Or. 71

LOMMASSON v. SCHOOL DIST. NO. 1, MULTNOMAH COUNTY.

Supreme Court of Oregon.

Argued Sept. 23, 1953.

Decided Oct. 7, 1953.

Randall S. Jones, of Portland, argued the cause for appellant. With him on the briefs was Robert L. Weiss, of Portland.

Grant T. Anderson argued the cause for respondent. On the brief were King, Wood, Miller, Anderson & Nash, of Portland.

Before LATOURETTE, C. J., and WARNER, TOOZE and PERRY, JJ.

WARNER, Justice.

Plaintiff-appellant was at one time employed as a teacher in the public schools of the city of Portland, Oregon, by the directors of School District No. 1 of Multnomah county, the defendant-respondent. She brings this action to recover damages claimed to have been sustained by reason of defendant's refusal to recognize her alleged right to continued employment as a 'permanent' teacher. From a judgment of involuntary nonsuit, plaintiff appeals.

Beginning in 1938, and for many years following, plaintiff taught millinery in Girls' Polytechnic High School; but during the school year 1949-50, and thereafter, the district refused to employ her except on a part-time basis.

Plaintiff represents that, having previously taught full time for three successive school years as a teacher regularly appointed and employed with an annual salary, she thereby acquired a permanent status under the Teachers' Tenure Law, §§ 111-2301 to 111-2320, O.C.L.A., and, having that status, contends that the district is obligated to continue to employ her. The plaintiff has arbitrarily selected the history of her employment during the school years of 1943-44, 1944-45 and 1945-46 upon which to predicate and demonstrate the righteousness of her claim.

The district controverts these contentions, alleging that during the foregoing school years, her employment was only as an 'assigned substitute' and, relying on § 111-2304, O.C.L.A. asserts that by virtue of that circumstance she was specifically excepted from the beneficent provisions of the tenure law.

This appeal calls for the resolution of three principal questions: First, Do all teachers of the district (other than substitutes) have to pass through a probationary status before attaining a 'permanent' classification, or can the board under the provisions of § 111-2304 regularly appoint and employ some of them without subjecting them to the tests involved in the elevation from probationary to permanent rank? Second, Is a teacher who is appointed and regularly employed to fill a position not temporarily vacated by the absence of another regularly retained, denied the benefit of tenure status because in her contracts for such service she is described as an 'assigned substitute'? Third, If the teacher's employment was initially within the power of the district and evidenced by contracts not executed with all the statutory formalities, can the district thereafter ratify them?

Before examining the Teachers' Tenure Law in the light of the divergent positions of the respective parties, it will not be amiss to note that this law has as its foundation the all important public policy of giving further protection to the educational system of our state, rather than the granting of special privileges to teachers as a class or as individuals. Its broad objective is to maintain stability in teaching staffs and to avoid the evils of a fluctuating personnel so frequently incident to manifestations of prejudice, favoritism or arrogance on the part of school administrators. It therefore follows that the act should receive a liberal construction to effect its general plan as an act designed to promote the public interest. State ex rel. Clark v. Stout, 206 Ind. 58, 187 N.E. 267, 269; McSherry v. City of St. Paul, 202 Minn. 102, 277 N.W. 541, 546.

We look first to § 111-2304, O.C.L.A., since it is the section of the tenure law wherein we find the basic requirements prerequisite to the attainment of permanent or 'tenure' status. It reads:

'The words 'teacher' or 'teachers,' when used in this act, shall mean and include all supervisors, principals, vice principals, directors of departments and/or instructors now employed, or who hereafter may be employed, by any such school district. 'Permanent' teacher or teachers shall mean and include all teachers who have been regularly appointed and employed by any such school district for not less than three successive school years, or who may hereafter be placed upon the permanent list by resolutions of the school board as hereinafter provided. 'Probationary' teacher or teachers shall mean and include all teachers, other than substitute teachers, regularly appointed and employed by any such school board during a probationary period of three successive school years, and until placed upon the permanent list as provided in section 111-2307.' (Italics ours.)

Section 111-2307, O.C.L.A., referred to in § 111-2304, as amended by ch. 137, Oregon Laws 1945, provides:

'Probationary teachers who have been employed in the schools in any such district or districts as regularly appointed teachers for not less than three successive annual terms, if retained, shall be placed by the board of directors upon the list of permanently employed teachers; * * * provided further, that no probationary teacher shall be placed upon such permanently employed list until the board upon consideration of records and ratings, to be regularly and periodically made to the board, is satisfied as to qualifications and adopts a resolution transferring such teacher from the probationary list to the permanently employed list.'

Plaintiff is in nowise challenged by charges of inefficiency, unbecoming or other conduct which might warrant a dismissal under the provisions of § 111-2311, O.C.L.A. It was stipulated that she was employed on a 'substantially full-time basis' during the three school years which are made the basis of her claim for tenure and that during those years she was not taking the place of a regular teacher absent on leave.

We have deliberately italicized the word 'or' in our quotation from § 111-2304, O.C.L.A., in order to focus attention upon the prime point of disagreement between the parties. Plaintiff contends that the word should be read literally with its normal disjunctive connotation. The defendant district, on the other hand, argues that it should be given a conjunctive import by reading it as if it were the word 'and'.

If we read the word 'or' literally, then it becomes evident that permanent status is acquired by a teacher in one of two alternative ways. However, if we are compelled to give to the word 'or' the meaning of 'and', then a teaching record of three successive years does not ripen into permanent status until the school board adopts a resolution as provided in § 111-2307 of the tenure act. This construction urged upon us by the defendant district is tantamount to saying that all teachers initially and regularly employed by the district must be first employed as 'probationary' teachers who can never graduate from their initial probationary standing to permanent status until they have first served the required three successive years and won the board's accolade in the manner provided by § 111-2307, O.C.L.A.

Courts should exercise circumspection to avoid any effort to amend statutes. There is no justification for using 'or' as meaning 'and', unless the failure to do so would leave a statute meaningless or absurd. It is an inexcusable device of interpretation where there is no ambiguity to be resolved. Generally, the words 'and' and 'or', as used in statutes, are not interchangeable, being strictly of a conjunctive or disjunctive nature, respectively; and their ordinary meaning will be followed if it does not render the sense of the statute dubious or circumvent the legislative intent, or unless the act itself furnishes cogent proof of the legislative error. State v. Kelly, 218 Minn. 247, 15 N.W.2d 554, 164 A.L.R. 477, 490; Tedars v. Savannah River Veneer Co., 202 S.C. 363, 25 S.E.2d 235, 147 A.L.R. 914, 919; 50 Am.Jur., Statutes, 268, § 282; 82 C.J.S. Statutes, § 335, page 672.

Taking the tenure law by its four corners, we do not find § 111-2304, O.C.L.A. rendered ambiguous, meaningless or absurd by the legislative use of the controverted word 'or' in its usual meaning and disjunctive employment and cannot accept defendant's suggestion that we substitute 'and' in place thereof and thereby give a conjunctive character to the phrase which follows; nor do we think the foregoing conclusion is violative of the legislative intent. Indeed, if we accept defendant's premise, it is plain to us that we must also conclude that all teachers who are regularly appointed and employed by a school district must be initially employed on a probationary basis (except, of course, substitute teachers) and that all, after three years of such service, must thereafter be subjected to board review of their records required by § 111-2307 before they can successfully attain permanent status.

We do not so read the tenure law. We find nothing therein which inhibits a school district from regularly employing any teacher without first subjecting such instructor to a probationary period. The word 'teachers', as used in the act, comprehends the whole gamut of instructors from the elementary school to those presiding over high school classes. Within the statutory definition of the word 'teacher' is also included high ranking administrative employees: supervisors, principals, vice-principals and directors. § 111-2304, O.C.L.A. Offices with such administrative responsibility are ordinarily assigned only to those who have proved their worth through long prior experience. To hold, as defendant would have us do, that all 'teachers' must first submit to three years of probationary testing would deny to the school board the valuable opportunity to choose from many experienced men and women with well-established reputations in their...