Sch. City of Crawfordsville v. Montgomery
| Decision Date | 29 September 1933 |
| Docket Number | No. 14630.,14630. |
| Citation | 187 N.E. 57,99 Ind.App. 526 |
| Parties | SCHOOL CITY OF CRAWFORDSVILLE v. MONTGOMERY. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Montgomery Circuit Court; John W. Hornaday, Special Judge.
Action by Arthur D. Montgomery against the School City of Crawfordsville, Indiana. Judgment for plaintiff, and defendant appeals.
Reversed, with instructions.
W. J. Sprow, of Crawfordsville, for appellant.
Chase Harding and Foley & Foley, all of Crawfordsville, and S. C. Kivett, of Martinsville, for appellee.
Appellee filed complaint against appellant for an alleged breach of a written contract between appellee and appellant, whereby appellee was employed to serve as superintendent of the city schools of Crawfordsville, Ind., for a period of three years beginning August 1, 1928. A copy of said contract was made part of the complaint.
Clause 5 of the contract provided: “This contract may be terminated: (a) by the Board of Trustees at any time for good cause, if and when such Board acting in good faith and upon sufficient evidence shall find such good cause to exist.”
In his complaint appellee alleged the execution of said contract, full and faithful performance of his duties under said contract until July 8, 1930, “when the defendant (appellant) in violation of said contract and without good cause *** refused to permit plaintiff (appellee) to continue in said employment and discharged him. ***” He further alleged that he “has been at all times ready and willing and able to carry out his contract, *** and has demanded that defendant (appellant) permit him to continue his said employment, and that defendant (appellant) pay him the salary accruing to him under said contract, all of which the defendant (appellant) has refused to do without just cause. ***”
Appellee filed a demurrer to the complaint setting forth the reasons: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) the court has no jurisdiction of the subject-matter of the action. The demurrer was overruled, and appellant filed an answer in general denial.
Trial was had before the court, without a jury, and the court found for appellee, assessed damages, and rendered judgment accordingly. Motion for new trial was duly filed and was overruled.
Appellant appeals, assigning as errors relied upon for reversal: (1) The court erred in overruling appellant's demurrer to appellees' complaint. (2) The court erred in overruling appellant's motion for new trial.
Under its first assignment of error appellant contends that the complaint, to withstand the demurrer, had to allege fraud or bad faith, on the part of the school board, in the termination of the contract.
[1] This court, in the case of Keener School Township v. Eudaly (1931) 93 Ind. App. 627, 635, 175 N. E. 363, 366, quoted with approval from Christmann v. Coleman (1927) 117 Ohio St. 1, 157 N. E. 482, as follows: “The general rule is that, where power has been conferred upon an administrative officer or board to remove another officer, a teacher, or appointee, for cause, and the procedure is provided for such removal, and the procedure has been followed, the finding of such administrative officer or board dismissing another officer, a teacher, or appointee, is final and conclusive and not reviewable by the courts, either in a direct proceeding to reverse or by collateral attack, except where such administrative officer or board has acted in bad faith, corruptly, fraudulently, or has grossly abused its discretion.” We recognize that as a general rule of law. See Kegerreis, Trustee, v. State ex rel. (1925) 195 Ind. 589, 146 N. E. 390. It applies where the power to remove an appointee is agreed to by contract, with the appointee, as in the instant case as well as, where such power is conferred by statute as in the case of Christmann v. Coleman, supra.
[2] Appellant acquired its authority to employ appellee through section 6600, Burns' Ann. St. 1926, which provides: “The school trustees of incorporated towns and cities shall have power to employ a superintendent for their schools. ***” It does not provide a procedure to be followed as was provided in the statute construed in Christmann v. Coleman, supra. In the absence of such regulatory provisions, we must hold that section 6600, Burns' Ann. St. 1926, authorized the school boards to use their discretion in the matter of the employment of school superintendents.
[3] Since an action of a school board in removing a superintendent of schools, who was appointed by them, is final and conclusive, and is not reviewable by the courts either in a direct proceeding to reverse, or by collateral attack, except where such school board has acted in bad faith, corruptly, fraudulently, or has grossly abused its discretion, a complaint seeking to review such action must allege bad faith, corruption, fraud, or gross abuse of discretion on the part of board in removing the officer. The complaint at bar seeks to review such action by a collateral attack, and it does not contain such allegations.
Appellee contends the language in...
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