Ortega v. Otero., 4844.

• Decision Date: 20 December 1944
• Docket Number: No. 4844.,4844.
• Citation: 48 N.M. 588,154 P.2d 252
• Parties: ORTEGA et al.v.OTERO.
• Court: New Mexico Supreme Court

48 N.M. 588

154 P.2d 252

ORTEGA et al.

v.OTERO.

No. 4844.

Supreme Court of New Mexico.

Dec. 20, 1944.

Appeal from District Court, Valencia County; William J. Barker, Judge.

Action by Ramon Ortega and others, as members of the Valencia County School Board, against Jose Luis Otero to enjoin defendant from interfering with the property under plaintiffs' control and from holding himself out as rural school supervisor, and from interfering with the management of the schools, school teachers, and the plaintiffs. From an adverse judgment, defendant appeals.

Reversed and remanded with directions.

The interpretation of a statute by department of public officials charged with duty of administering the statute is persuasive with the courts.

Charles B. Barker, of Santa Fe, and H. O. Waggoner, of Albuquerque, Madeline Kinter Remmlein, of Washington, D. C., amicus curiae, for appellant.

No brief filed for appellee.

BICKLEY, Justice.

The appellant (defendant), who is a person certified as qualified to teach in the schools of the state, was, in writing, duly employed as Rural School Supervisor for Valencia County. After serving a few months charges were preferred against him and after a hearing he was discharged by the board, from which decision he appealed to the State Board of Education, which decided that the charges were not sustained and that he was qualified to hold the position and that the written contract theretofore entered into between the County Board and the appellant was and continued to be in full force and effect.

Before the decision of the State Board was rendered the plaintiffs (appellees) commenced an action in the District Court against the appellant to enjoin him from interfering with the property under their control and from holding himself out as Rural School Supervisor and from interfering with the management of the schools, school teachers, and the plaintiffs.

The defendant answered, denying the charges; denying that any proof of defendant's guilt had been produced against him in the hearing before the County Board; setting forth the claim that he was entitled to an appeal to the State Board of Education, and that the State Board had reversed the decision of the County Board and otherwise putting at issue the allegations of the complaint and prayed that the complaint be dismissed.

The District Court made certain findings and conclusions and thereupon rendered judgment granting to plaintiffs the relief they prayed for, and enjoined defendant accordingly.

The hearing in the District Court took such a turn that the sole question involved is: Does the State Board of Education have the power to entertain an appeal from the decision of a County Board of Education in case of a discharge of a Rural School Supervisor, and thereby perhaps set at naught the decision of the County Board?

The trial court erroneously answered this question in the negative.

The following finding and conclusion of the trial court incorporated in the judgement discloses the theory of the decision: “That the sole question involved in this action is strictly one of law and that Rural School Supervisors appointed pursuant to Section 55-807 of the Laws of New Mexico, Annotated, 1941, are not teachers and can be discharged by the Boards of Education of the counties in which said respective Rural School Supervisors are so appointed, and in a case where a Rural School Supervisor is so discharged by a County Board of Education, no appeal lies to the State Board of Education and the decision of the County Board of Education is final and cannot be reviewed by the said State Board, and that the answer of the Defendant, in this cause, although taken as admitted, does not constitute a defense to the complaint filed by the Plaintiffs and that the Defendant, Jose Luis Otero, was discharged by the Valencia County Board of Education as Rural School Supervisor of Valencia County, New Mexico and his appeal and the decision of the State Board of Education are not authorized by law ***”.

The question is: Did the court give too narrow a signification to the word “teachers”? The immediately controlling statute is as follows: “Discharge of contract teachers-Hearing-Written charges- Notice-Right of appeal to state board- Hearing de novo-Decision final-Salary pending appeal.-No teacher having a written contract shall be discharged except upon good cause and after hearing on written charges, which, together with written notice of the time and place of hearing, shall be served upon said teacher at least five (5) days prior to such hearing. Such teacher shall have the right to appeal within ten (10) days to the state board of education, which board shall hear the matter de novo at a time and place to be by it fixed and the decision of such state board of education shall be final. Pending its decision upon appeal, such teacher shall be entitled to receive the salary contracted for. (Laws 1923, ch. 148, § 1105, p. 290; 1925, ch. 73, § 20, p. 99; C.S. 1929, § 120-1105; Laws 1941, ch. 202, § 3, p. 399.)” 1941 Comp. § 55-1113.

Appellant earnestly argues that since by the provisions of 1941 Comp. § 55-807, County Boards of Education may employ as Rural School Supervisors only such persons as are “certified as qualified to teach in the schools of the state”, it follows that the provisions of Chapter 202, L. 1941, 1941 Comp. 55-1111, 55-1112, 55-1113, being “An Act Relating to the Employment and Discharge of and Contracts with Teachers in the Public Schools of New Mexico and Amending Section 20 of Chapter 73, Laws of 1925, and Declaring an Emergency,” applies to Rural School Supervisors with respect to the right of appeal to the State Board of Education from a decision of a governing board discharging such Rural School Supervisors. Counsel for the National Education

Association of the United States, a nonprofit organization of teachers, chartered under the laws of the District of Columbia in 1896 and by Act of Congress in 1906, has filed a brief amicus curiae, aligned with appellant.

We have not been favored with a brief on behalf of appellees.

Amicus curiae states:

“Many states have a statutory definition of ‘teacher’: e.g., Section 1722(c) of the West Virginia Code of 1943 provides that ‘Teacher shall mean teacher, supervisor, principal, superintendent, public school librarian, or any other person regularly employed for instructional purposes in a public school of this State.’

“Where there is no such statutory definition of ‘teacher’ many courts have construed the term to mean all employees certificated as teachers. For example, the Supreme Judicial Court of Massachusetts declared that ‘a principal is merely a teacher who is entrusted with special duties of direction and management.’ McDevitt v. School Committee of City of Malden, 1937, 298 Mass. 213, 10 N.E.2d 100; Downey v. School Committee of Lowell, 1940, 305 Mass. 329, 25 N.E.2d 738. The Ohio Supreme Court said that the term ‘teacher’ in the teacher tenure act is not to be narrowly construed and may be so interpreted as to cover an assistant county superintendent. State ex rel. Frank v. Meigs County Board of Education et al., 1942, 140 Ohio State 381, 44 N.E.2d 455.”

New Mexico has no case law interpreting the scope of the designation “teacher” and no express statutory definition thereof.

We are thus confronted with an issue of first impression, and must from the materials at hand distill the will of the Legislature.

The power relative to appointment or employment of rural school supervisors was introduced by amendment of Section 120-804, N.M.Stats. Ann.Comp. 1929, by introducing the following language appearing in Section 5 of Chapter 119, L. 1931: “Said Board may employ a rural school supervisor at the expense of the county, which supervisor must be approved by the State Board of Education and must have such educational qualifications as may be determined by said Board of Education, such supervisors to be permitted only in counties whose rural teachers number fifty or more.”

This section was amended by Chapter 114, L. 1937, but in no material particular so far as it related to employment of rural school supervisors, the only change being the addition of the word “State” before the phrase, “Board of Education” in the second place that said phrase, “Board of Education” appears in the sentence, and omitting the phrase “such supervisors to be permitted only in counties whose rural teachers number fifty or more.” The section was again amended by Chapter 173, L. 1939, so as to read: “Said board may employ a rural school supervisor at the expense of the county, which supervisor shall be nominated by the county superintendent of schools and must be approved by the state board of education. Such supervisors must have a minimum of one (1) year actual teaching or supervisory experience in the elementary schools of New Mexico and must have high school graduation and at least a Bachelor of Arts degree or its equivalent from a fully accredited college or university, and at least fifteen (15) hours training in class room supervision. ***” 1941 Comp. 55-807.

Thus appears an inclination toward giving the status of “teacher” to the position of rural school supervisor. Why the requirements for certification as a teacher and other educational requirements including “at least fifteen (15) hours training in class room supervision” unless the supervisor is to teach through advice and counsel to teachers, and supervision of class room work? Such in practice is the function of rural school supervisors including class room instruction to the pupils when occasion requires.

The understanding of the parties as reflected in the written contract affords some enlightenment. It is therein said that the supervisor must supervise the schools assigned, be prompt, thorough and conscientious, “judicious in punishment and watchful to the morals of the pupils.” This fairly implies a required direct contact with and...