Sch. City of Evansville v. Culver, 14572.

• Court: Indiana Appellate Court
• Writing for the Court: KIME
• Citation: Sch. City of Evansville v. Culver, 94 Ind.App. 692, 182 N.E. 270 (Ind. App. 1932)
• Decision Date: 27 July 1932
• Docket Number: No. 14572.,14572.
• Parties: SCHOOL CITY OF EVANSVILLE v. CULVER.

94 Ind.App. 692

182 N.E. 270

SCHOOL CITY OF EVANSVILLE

v.CULVER.

No. 14572.

Appellate Court of Indiana, in Banc.

July 27, 1932.

Appeal from Superior Court, Vanderburgh County; Benjamin E. Buente, Judge.

Action by John M. Culver against the School City of Evansville. Judgment for plaintiff, and defendant appeals.

Affirmed.

Daniel H. Ortmeyer, of Evansville, for appellant.

Joseph H. Iglehart, of Evansville, for appellee.

KIME, P. J.

Appellee brought this action against appellant to have vacated a resolution of the board of school trustees of appellant of July 24, 1931, canceling the indefinite contract of appellee as a permanent teacher in the public schools of appellant, and to recover the sum of $270 alleged to be due appellee from appellant for salary as a permanent teacher for the first month of the school year beginning September 8, 1931. Appellant filed a demurrer to appellee's complaint for want of facts. The demurrer was overruled, and, upon appellant's refusal to plead further, judgment was rendered in favor of appellee. The error assigned relates to the action of the court in overruling the demurrer.

It appears from the facts set forth in the complaint that appellee was employed by appellant as a public school teacher for the year beginning September 2, 1930, at a salary of $2,700 for the school year, to be paid in ten equal monthly payments; said employment being evidenced by a written contract which was entered into on May 5, 1930. On July 13, 1931, the board of school trustees of appellant, pursuant to notice to appellee, held a hearing, at which appellee was present, to determine whether or not the permanent contract of appellee as such teacher should be canceled. It was further alleged that evidence was introduced at said hearing showing without contradiction that appellee holds a life license as a teacher, said license having been issued December 16, 1923, and that continuously prior to July 13, 1931, appellee served under contract as a teacher in the public schools of appellant for 30 years or more, and on said date was a permanent teacher of such school corporation; that appellee served under his contract of May 5, 1930, until the end of the school year beginning September 2, 1930, that no written contract was entered into between appellee and appellant after the contract of May 5, 1930; that appellee attained the age of 70 years on April 14, 1930. Evidence was also introduced at said hearing to the effect that appellant had a rule requiring all teachers to retire from service when they reach 70 years of age, and that appellant refused to retire as required by said rule.

It was further alleged that the board of school trustees of appellant, at the conclusion of the hearing on July 13, 1931, took the matter under consideration until July 24, 1931, and on that date found appellee guilty of insubordination, in that he willfully refused to obey the reasonable rules prescribed for the government of the public schools of appellant, namely, the rule that every teacher must retire at the age of 70 years, and resolved that the contract between appellee and appellant was canceled because of such insubordination. Appellee notified appellant in writing on September 5, 1931, that he was ready and willing to perform such services as were assigned him for the school year beginning September 8, 1931, which offer appellant refused. Appellee also made demand for one monthly instalment of salary which had become due under his alleged contract with appellant, and which appellant refused.

Appellant contends that its rule providing that all teachers, principals, and supervisors must retire from service when they reach 70 years of age is a reasonable rule prescribed for the government of its public schools, and that appellee was guilty of insubordination in that he willfully refused to obey said rule, and that the indefinite contract of appellee as a permanent teacher was lawfully canceled by its (appellant's) board of school trustees because of such insubordination.

On the other hand, appellee says that this rule is invalid and unreasonable, and cites that part of section 1 of the Acts of 1927, c. 97, section 6967.1, Burns' Ann. St. Supp. 1929, which says in part that, “any person who *** shall serve under contract as a teacher in any school corporation *** for five or more successive years, and who shall *** enter into a teacher's contract for further service with such corporation, shall thereupon become a permanent teacher of such school corporation. *** Upon the expiration of any contract between such school corporation and a permanent teacher, such contract shall be deemed to continue in effect for an indefinite period and shall be known as an indefinite contract. Such *** contract shall remain in force unless succeeded by a new contract signed by both parties or unless it shall be canceled as provided in section 2 of this act,” and further contend that such a rule tends to violate the spirit, purpose, and terms of the above act, which is known as the Teachers' Tenure Law.

From the foregoing greatly abbreviated but, for present purposes, we think sufficient statement of the views of the respective parties, it is apparent that in the last analysis the question we are called upon to decide is this: Is appellant's rule requiring all teachers attaining the age of 70 years to retire from service a just and reasonable rule, and does it violate or conflict with the statute in question?

The Teachers' Tenure Law (Burns' Ann. St. Supp. 1929,...