School District No. 9 in Mesa County v. Gigax

• Decision Date: 07 January 1918
• Docket Number: 8775.
• Parties: SCHOOL DIST. NO. 9 IN MESA COUNTY v. GIGAX et al.
• Court: Colorado Supreme Court

170 P. 184

69 Colo. 161

SCHOOL DIST. NO. 9 IN MESA COUNTY v. GIGAX et al.

No. 8775.

Supreme Court of Colorado, En Banc.

January 7, 1918

Error to District Court, Mesa County; Thomas J. Black, Judge.

Action by J. G. Gigax and Lula Gigax against School District No. 9 in the County of Mesa, State of Colorado. There was a judgment for plaintiffs, and defendant brings error. Affirmed.

A contract with a teacher for another term before the expiration of a certain term was valid and binding in a school district of the third class, though such contract was made just before the expiration of the term of one of the directors and just before a new director was to take his place on said board.

Griffith, Watson & Smith, of Grand Junction, for plaintiff in error.

George Bullock and R. H. Walker, both of Grand Junction, for defendants in error.

SCOTT J.

The plaintiff in error is a school district of the third class as classified by the statutes of the state. As such, its board of directors consists of three members, one of whom is to be elected at the annual school meeting, and each of whom hold office for a term of three years.

At a regularly called meeting of the board of directors of defendant school district, held on the 14th day of March 1913, the defendants in error, plaintiffs below, and who are husband and wife, were jointly employed to teach the schools of the district for a period of eight months, beginning in September, 1913, at the joint compensation of $155 per month. At this board meeting one member of the board opposed such employment. Afterward and at the annual school meeting in May, a new member of the board was elected to succeed one of those who had voted for such employment, and at a later meeting held in the same month, the board, by a vote of two to one, ordered the contract of employment canceled, and so notified the plaintiffs.

This suit is to recover under the contract of employment. The case was tried to the court upon the pleadings, and judgment rendered in favor of the plaintiffs in the sum of $550 being for the amount agreed in the contract of employment, less the earnings of plaintiffs during the period, and necessary expenses to which they were put in obtaining such employment. The pleadings admit that plaintiffs were competent school-teachers, and were, at all times mentioned, authorized by proper certificates to teach school.

It was alleged in the answer of defendant district that plaintiffs were at the time of the contract, and had been for two school years, employed as school-teachers for the school district, and were unsatisfactory, and that this constituted the issue in the ensuing annual election. Fraud is not charged, although the answer alleged that the action was taken by a majority of the board to forestall any action of the board after the election.

The whole question is whether or not the district board had the power to make the contract at the time; the contention being that the board cannot contract for an employment to begin after the expiration of the term of one of the members of the board. This question was raised by demurrer to the complaint and otherwise. The plaintiff in error to sustain its contention cites the following cases: Stevenson v. School Dist., 87 Ill. 255; Davis v. School Directors, 92 Ill. 293; Cross v. School Directors, 24 Ill.App. 191; Webster v. School Dist., 16 Wis. 316; Hemingway v. School Dist., 118 Wis. 294 95 N.W. 116; Burkhead v. School Dist., 107 Iowa 29, 77 N.W 491; Smith v. School Dist., 1 Pennewill (Del.) 401, 42 A. 368.

It must be admitted that the Illinois cases do sustain the contention of plaintiffs in error, but it is quite clear, as pointed out in many of the cases hereinafter cited, that these cases are based on specific statutes of that state, nonexistent in this state and in other states, where the contrary view has been taken. One of the provisions of the statute of Illinois upon which that court based its conclusion was as follows:

'Every school established under the provisions of this act shall be for the instructions in the branches of education prescribed in the qualifications for teachers, and in such other branches, including vocal music and drawing, as the directors or the voters of the district, at the annual election of directors, may prescribe.' Rev. St. 1874, p. 964, § 50.

And from this the court reasoned that:

'Under this provision it could not be known, until after the annual election of directors, but that the voters of the district would prescribe that certain branches should be taught beyond those ordinarily taught in district schools, and there can, obviously, be no intelligent employment of a teacher until it shall be known what is required to be taught.' Stevenson v. School Directors, 87 Ill. 258.

The remaining authorities cited by plaintiff in error cannot be said to support the contention. In Hemingway v. School Dist., supra, following Webster v. School Dist., supra, by the same court, sustained the validity of the contract in question subject only to the power of the district at its next meeting, or of the new board to terminate the contract by an inconsistent determination as to the length of the term, the sex of the teacher, or the application of the school moneys. Under our statutes the school meeting has no such powers, but such matters are within the exclusive power of the board. In Burkhead v. School Dist., supra, it was simply held that the school board was without power under the statutes of that state to contract with teachers for a period of five years. This was held to be an unreasonable length of time.

In Smith v. School Dist., supra, the contract was held to be invalid for the reason that the contract was made with individual members of the board, and not made nor ratified by the board at a meeting duly convened. It is true that the write of the opinion deprecates the policy of out-going members in selecting teachers for a period beyond the terms of such members, thought expressly declining to lay down any fixed rule upon this point. As we view it the question here is one of power and not of policy. But the following authorities are clearly opposed to the contentions of plaintiff in error, and expressly hold that in the absence of statutes, logically or expressly to the contrary, contracts of the kind under consideration, are binding on the school district. Caldwell v. School Dist. (C. C.) 55 F. 372; Reubelt v. School Dist., 106 Ind. 478, 7 N.E. 206; Taylor v. School Dist., 16 Wash. 365, 47 P. 758; Gates v. School Dist., 53 Ark. 468, 14 S.W. 656, 10 L.R.A. 186; Norton v. Wilkes, 93 Minn. 411, 101 N.W. 619; Wait v. Ray, 67 N.Y. 36; Splaine v. School Dist., 20 Wash.

74, 54 P. 766; Town of Pearsall v. Woolls (Tex.Civ.App.) 50 S.W. 959; Wheeler v. Burke, 162 Ky. 143, 172 S.W. 91. In Wait v. Ray, supra, New York, involving the precise question, it was said:

'And it would be a strange construction of the statute which would terminate the teacher's contract with every such termination of the trustee's office. The power to employ teachers is therefore very wisely made general; and a contract for one year or more, if made in good faith, and without fraudulent collusion, must be held binding. This power, like every other power confided to public officers, may be abused, but the fact that it may be abused furnishes no argument against its existence. The danger of abuse is however very small, as a hiring for an unusual time would be strong evidence of fraud and collusion. * * * The contention of the defendant would be more plausible if there were a general rule that public

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