Mootz v. Belyea

• Decision Date: 27 April 1931
• Docket Number: No. 5927.,5927.
• Parties: MOOTZ v. BELYEA et al.
• Court: North Dakota Supreme Court

60 N.D. 741

236 N.W. 358

MOOTZ

v.BELYEA et al.

No. 5927.

Supreme Court of North Dakota.

April 27, 1931.

Syllabus by the Court.

A school teacher employed by a common school district is an employee; the relationship between her and the school board is that of contract only.

Syllabus by the Court.

Mandamus does not lie to determine mere contract rights, and therefore the court will not award a writ compelling a school board to comply with the terms of such contract, as the teacher has an adequate remedy at law.

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

Mandamus proceeding by Mary Mootz against Mrs. Frank Belyea and others, as members and constituting the School Board of Dodd's School District, Nelson County, and others. From a judgment denying the writ, the plaintiff appeals.

Affirmed.

See, also, Beckman v. Belyea, 236 N. W. 361.

F. T. Cuthbert, of Devils Lake, for appellant.

Traynor & Traynor, of Devils Lake, for respondents.

BURR, J.

This is an application for a writ of mandamus addressed to the defendants, as members of a school board, requiring them to install the petitioner as teacher in one of the schools in the district and to pay her according to an alleged contract for service.

We need not pass upon the disputed testimony. We take as true the facts stated by the appellant.

On the 5th day of July, 1930, the appellant, a school teacher, was employed by the school board of Dodd's school district in Nelson county to teach school No. 2 in that district, for a term of nine months beginning September 8, 1930, and her compensation fixed at $90 per month. A written contract to this effect was signed by both parties.

By the 2d day of August, 1930, there were changes in the personnel of the school board, and the new school board, at a special meeting, decided “that Mary Mootz was not legally hired and she should be notified to that effect,” and entered into a contract with one Anne Collins to teach this particular school. Appellant says this meeting was illegally called, and that this action was taken by the school board without any notice to her and without her knowledge or consent.

On the 8th of September, 1930, she came to the school, prepared to teach, and ever since has been ready and willing to teach; but the school board has prevented her from taking charge of the school and installed Miss Collins, who ever since has been teaching and drawing salary for the school year.

An order was issued requiring the defendants to show cause why appellant should not be installed as teacher in the school and why she should not be paid the salary agreed upon.

On the return day defendants appeared and demurred on the ground that the court had no jurisdiction, that there was a defect of parties defendant, and that the petition did not set forth facts sufficient to constitute a cause of action. Affidavits were presented by both sides, and the court denied the writ.

Section 8457 of the Compiled Laws 1913, says the “writ of mandamus may be issued * * * to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded by such * * * board. * * *” Section 8458 of the Compiled Laws 1913 says: “The writ must be issued in all cases when there is not a plain, speedy and adequate remedy in the ordinary course of law.”

[1][2] It is the claim of the appellant that she is being denied the “use and enjoyment of a right or office” to which she is entitled. Whether her contract gives her a right or office depends upon her relationship to the school board and her right under her contract. The duty of employing teachers is vested in the school board, and this is done by contract. The relationship is purely contractual in this state. There is no fixed tenure of office when a teacher is employed, other than the provisions set forth in the contract. In this state the profession is not undercivil service rules. When a teacher is employed by a school district she is not employed as an officer and she does not become an officer. Her rights are measured by the terms of her contract. As said in Board of Education of South Milwaukee v. State ex rel. Reed, 100 Wis. 455, 76 N. W. 351, 353, the teacher “was a mere employee, and not an officer of the district in question, and had no official relations to it. His services were to be rendered in consideration of a certain stipulated compensation. He was not an officer, within the meaning of the constitution and laws.”

The relationship between the teacher and school directors is purely contractual. Clune v. School District, 166 Wis. 452, 166 N. W. 11, 6 A. L. R. 736;State ex rel. O'Neil v. Blied et al., 188 Wis. 442, 206 N. W. 213.

Heath v. Johnson, 36 W. Va. 782, 15 S. E. 980, says: “The occupation of a teacher of a free school in this state is not a public office, but an employment.”

In State ex rel. Lewellen et al. v. Smith et al., 49 Neb. 755, 69 N. W. 114, it is said: “A contract to teach in one of the free schools of the ordinary districts is one of employment. The district, represented by the board, is an employer, and the teacher an employee. The teacher in such schools is not a public officer.” In Eason v. Majors, 111 Neb. 288, 196 N. W. 133, 30 A. L. R. 1419, the court says this quotation is dictum and is not used as authority in the case under discussion. Nevertheless the court, in commenting on State ex rel. Lewellen v. Smith, calls attention to the fact that title to an office cannot be tested by mandamus, and that the teacher had an adequate remedy at law.

In Hartigan v. Board of Regents, 49 W. Va. 14, 38 S. E. 698, the status of a professor in the West Virginia University was under discussion. The plaintiff had asked for a writ of prohibition to prevent the board of regents “from executing a resolution of that board removing a professor.” The principle advocated by plaintiff was that the position was a public office; but the Supreme Court in the majority opinion holds that the professor in the West Virginia University is not a public officer. There is a strong dissenting opinion covering some twelve pages of the reporter; but the majority opinion cites the case of People v. Langdon, 40 Mich. 673, where, in an opinion written by Judge Cooley, the court distinguishes an office from an employment, saying: “An officer is distinguished from an employee in the greater importance, dignity, and independence of his position; in the requirement of an official oath, and perhaps bond; in liability to account for misfeasance and nonfeasance; and usually in the tenure of his position.” The West Virginia court then proceeds to show that a professor “takes no oath, gives no bond, does not account for misfeasance or nonfeasance in a legal sense, has no term, no duties of a fixed determinate character fixed by law. * * * He is no quasi officer. There can be no such thing as a quasi officer.”

True, it may be difficult at times to draw a line of distinction between an official and an employee, but there can be no officer if there be no office. That the duties performed are public or quasi public in their character is not sufficient to create an office. As said in State v. Kiichli, 53 Minn. 147, 155, 54 N. W. 1069, 1071, 19 L. R. A. 779: “The words ‘office’ and ‘officer’ are terms of vague and variable import, the meaning of which necessarily varies with the connection in which they are used, and, to determine it correctly in a particular instance, regard must be had to the intention of the statute and the subject-matter in reference to which the terms are used.”

Our statute says: “The district school board shall have the general charge, direction and management of the schools of the district, and the care, custody and control of all the property belonging to it, subject to the provisions of this chapter; provided that in the employment of teachers, no person related by blood or marriage to any member of the district board shall be hired without the unanimous consent of the board.” Comp. Laws 1913, § 1173.

It is the duty of the board also to “organize, maintain and conveniently locate schools”; “make all necessary repairs to school houses, * * * furnish fuel * * * provide for janitor service;” “have the care and custody of the library;” “make rules to govern the circulation and care of the books;” “employ the teachers of the school district and may dismiss a teacher at any time for plain violation of contract, gross immorality or flagrant neglect of duty.” “Admit to the schools in the district, pupils from other districts; * * * levy upon the property in the district a tax for school purposes;” “permit a school house * * * to be used * * * for any proper purpose.” Sections 1174, 1175, 1177, 1178, 1179, 1182, 1183.

With the approval of the county superintendent the school board is required to furnish the necessary furniture and to determine what branches or subjects shall be taught in the school. Sections 1176, 1181. It will be noted, with reference to school teachers, the statute says the board may “employ” teachers, and refers to the “employment” of teachers. The prescribed duty of a teacher “can be changed at the will of the superior, since no rule of law or well-defined custom forbids it,” and this is one of the tests applied by the Michigan court in determining whether a certain “Chief Clerk” was an officer or a mere employee. People v. Langdon, supra.

As said by Chief Justice Marshall in the case of United States v. Maurice, 26 Fed. Cas. pages 1211, 1214, No. 15,747: “A man may certainly be employed under a contract, express or implied, to do an act, or perform a service, without becoming an officer. But if a duty be a continuing one, which is defined by rules prescribed by the government, and not by contract, which an individual is appointed by government to perform, who enters on the duties appertaining to his station, without any contract defining them * * * it seems very difficult to...