Makinson v. Board of Directors, School Dist. No. 4, Lane County
| Decision Date | 31 December 1956 |
| Citation | 209 Or. 232,304 P.2d 1076 |
| Parties | Cloyd B. MAKINSON, Appellant, v. The BOARD OF DIRECTORS, SCHOOL DISTRICT NO. 4, COUNTY OF LANE, State of Oregon, and Harry I. Hamilton, Lee Bishop, Virgil Cameron, Ruth Colburn, and Charles E. Teague, Constituting the Members of said Board, Respondent. |
| Court | Oregon Supreme Court |
J. Robert Jordan, Portland, argued the cause for appellant. On the brief was Charles O. Porter, Eugene.
W. P. Riddlesbarger, Eugene, argued the cause and filed a brief for respondent.
Before TOOZE *, Acting Chief Justice, and LUSK, BRAND and McALLISTER, JJ.
This is a petition for a writ of mandamus brought by the plaintiff, a teacher at the Eugene High School, to require the defendants who are the directors of the school district to hold a hearing with respect to the transfer by the board of the plaintiff from his position as a full-time teacher to a position as a half-time teacher. The plaintiff is and since 1949 has been a permanent teacher as defined in the Teachers' Tenure Law, ORS 342.210(2). The defendants allege that plaintiff was a teacher of vocational agriculture, and:
'II
'That the enrollment in the classes in vocational agriculture has decreased to such an extent and the per pupil costs in vocational agriculture have increased to such an extent that the Board of Directors of said District for those reasons, reduced the class offerings in vocational agriculture in said High School to five one-half day sessions per week during the school year, effective September 7, 1954.
'III
'That pursuant to and in connection with the foregoing action, and in order to reduce the per pupil costs in vocational agriculture, and for no other reasons, said Board of Directors placed the Petitioner-Plaintiff on a one-half time teaching assignment and on one-half time pay for the school year 1954-55.
'IV
'That the said Board of Directors advised Petitioner-Plaintiff that if the actual enrollment in vocational agriculture in said school at the opening of school in September, 1954, is forty or more students, he, Petitioner-Plaintiff, will be restored to a full time teaching assignment and to full time pay.'
The prayer of the defendants is that the alternative writ be dismissed. Plaintiff denies all of the quoted allegations except paragraph IV. The statute provides:
'The school board may transfer any permanent teacher from his position in any branch of the service, as classified in ORS 342.225 to another position in the same branch of the service but no such teacher who has served three years or more in the branch of the service classified as ORS 342.250.
Plaintiff asserts the right to a hearing under these provisions and that such hearing was demanded but was refused by the board. We will first consider the condition of the pleadings. We have repeatedly held that the petition for an alternative writ of mandamus is no part of the proceedings and becomes functus officio when the alternative writ issues. Seufert v. Stadelman, 178 Or. 646, 167 P.2d 936; United States v. Cohn, 201 Or. 680, 272 P.2d 982; State ex rel. Bethke v. Bain, 193 Or. 688, 240 P.2d 958. The alternative writ is regarded as being the complaint and its sufficiency is tested as such. Olds v. Kirkpatrick, 183 Or. 105, 191 P.2d 641; State ex rel. Bethke v. Bain, supra. Needless to say, the writ is issued, not by the parties, but by the clerk on direction of the court. ORS 34.130. The printed abstract of record contains (1) a petition for a writ, (2) an 'answer to the Alternative Writ of Mandamus', (3) a reply followed by findings, conclusion and judgment. There is in it no order allowing the writ, and no writ.
A search of the papers in the judgment roll discloses an 'Order Granting Alternative Writ of Mandamus and Directing Issuance Thereof', but no writ. It is apparent that the parties have treated the petition as the writ, and the answer which purports to be an 'answer to the Alternative Writ of Mandamus' was merely an answer to the petition. The case was tried with the pleadings in this condition. Both counsel have informed us in open court that the plaintiff has been restored to full-time teaching. Both concede that the case is moot. Both ask the court to decide the questions presented by reason of the public questions involved. It is true that we have on rare occasions decided legal questions of public importance, although the case as between plaintiff and defendant has become moot. However, courts do not ordinarily decide moot questions. Ireland v. Sherman County, 75 Or. 241, 146 P. 969; Perry v. Oregon Liquor Control Commission, 180 Or. 495, 177 P.2d 406; Oregon State Grange v. McKey, 193 Or. 627, 238 P.2d 778, 239 P.2d 834.
Our examination of the pleadings and of the issues sought to be raised convinces us that this is not such a case as would justify a consideration or decision of the...
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