Smith v. Morton Independent School Dist., 4438.

• Decision Date: 03 June 1935
• Docket Number: No. 4438.,4438.
• Citation: 85 S.W.2d 853
• Parties: SMITH v. MORTON INDEPENDENT SCHOOL DIST.
• Court: Texas Court of Appeals

85 S.W.2d 853

SMITH v. MORTON INDEPENDENT SCHOOL DIST.

No. 4438.

Court of Civil Appeals of Texas. Amarillo.

June 3, 1935.

Rehearing Denied September 9, 1935.

Appeal from District Court, Cochran County; Homer L. Pharr, Judge.

Action by B. C. Smith against the Morton Independent School District. From a judgment in favor of the defendant, plaintiff appeals.

Reversed and remanded.

Bean, Duggan & Bean, of Lubbock, for appellant.

Loyd R. Kennedy, of Morton, and Lockhart & Brown, of Lubbock, for appellee.

HALL, Chief Justice.

The appellant, Smith, sued the school district for a breach of contract, under the terms of which he alleges he had been appointed superintendent of schools in said district. The prayer is that the school board be ordered to reinstate him as school superintendent and pay his salary, or, in the alternative, he prays for damages in the sum of $1,362.

He alleges: That the district was created by Special Act of the 39th Legislature, which became effective March 18, 1925 (chapter 113). That the act provides for a board of trustees, consisting of three persons, with proper qualifications, whose management and control of the schools within the district should be to the exclusion of every other authority except that of the State Superintendent of Public Instruction and the State Board of Education. That about February 16, 1934, the trustees of said district were W. A. Woods, W. B. Lackey, and R. D. Butts, and on said last date they entered into a contract in writing with him to serve as superintendent of the schools of said district for a period of twelve consecutive months, including the school year 1934-1935. That he is a teacher by profession, holding a first-class certificate. The contract provides that the term should begin on the 1st day of August, 1934, and his salary was fixed at $113.50 per school month. The contract was executed by the members of the board and appellant about February 26, 1934, and was approved by J. L. Winder, the county superintendent of Cochran county, as required by law. That thereafter, on April 7th, an election was held in that district for the purpose of choosing trustees, and six of the present board of trustees were elected. Arthur A. Beedy is a holdover member of the first board. That said new board has been composed of seven men since April 7, 1934, although the law requires only three members. That six or seven men were acting at the time they attempted to discharge the appellant on or about April 14, 1934. On said date, upon motion made, the members of the board voted to discharge the appellant, to become effective August 1, 1934, and on or about April 18, 1934, at a meeting of the board, one Joe Nicewarner was elected superintendent of said schools for the school term 1934-1935. That appellant was given no hearing before the board prior to or at the time of his discharge, no charges were preferred against him, and no reason was given for his discharge except that the people of Morton Independent School District did not like him. That no charges were made that the contract was procured through fraud, mistake, or imposition. That because the new board had more members than the law permitted, their acts in attempting to discharge appellant were void, and were void for the further reason that he was given no hearing and no charges that the contract was procured through fraud, etc., were ever made. He alleges further that he continued to act as superintendent until July 31, 1934, as required of him by his contract, but that shortly before the expiration of the contract demand was made upon him by the trustees for possession of the teacherage, which is usually furnished by the school district to its superintendent of schools, and that about July 31, 1934, he surrendered possession of said teacherage. That on August 1st he was ready to enter upon the discharge of his duties as superintendent for the school year 1934-1935, as required by his contract of February 16, 1934, but the defendant, through its trustees, refused to allow him to act as superintendent, and the said Joe Nicewarner thereupon entered upon the discharge of the duties of superintendent. That he was ready, able, and willing to comply with the terms of his contract, but that the school board has wholly failed and refused to allow him to fulfill said contract or to enter upon the discharge of his duties upon August 1, 1934. That on August 1, 1934, when the order discharging him became effective, a great majority of the schools in Texas had employed teachers and superintendents for the ensuing year, and although he tried diligently, he has failed to secure other employment to mitigate the damages he suffered or would suffer if not permitted to fulfill his contract. That he appealed to the county superintendent of Cochran county on August 10, 1934, where a hearing was had on such appeal on September 3d, and the action of the board of trustees was affirmed. Thereafter, on September 8th, he appealed from the action of the county superintendent to the county board of school trustees, where a hearing was had on said date, and where the action of the county superintendent was affirmed, and on such date he elected to appeal to the district court and filed this suit. He alleges that he would have received $1,362 under the terms of his contract as salary if he had been allowed to fulfill the contract, and because he was unable to obtain any other employment he suffered damages to the full amount. That there were or would be funds available for the salary of the teachers and superintendent during said school year in excess of the amount required to pay his damages. That approximately $20,000 will become available for the payment of such salary, and such funds are available for the payment of the damages suffered by appellant.

In answer to plaintiff's petition, the district filed what is styled a "plea in abatement," which, omitting the formal parts, is as follows:

"1. This defendant says that plaintiff's suit should be abated and dismissed for the reason that plaintiff's petition shows on its fact that the purported contract upon which plaintiff sues was not entered into by a legal Board of Trustees of the Morton Independent School District, whereas the acts of the persons named as having entered into said contract with plaintiff could not be binding upon this defendant.

"2. Because plaintiff's petition shows on its face that the contract purported to have been entered into between plaintiff and certain parties alleged to represent this defendant was not such contract as is authorized by law to be entered into by an independent school district, in that said contract described in plaintiff's petition is alleged to have been for the period from August 1, 1934 to July 31, 1935, whereas the law requires such contracts to be for the period from July 1st of the year for which they are made to the next succeeding June 30th.

"3. Because plaintiff's petition shows on its face that this court is without jurisdiction of this suit for the reason that the plaintiff has not complied with the requirements of the law with reference to referring said matter for adjudication to the State Superintendent and the State Board of Education.

"4. Because plaintiff's petition shows on its face that plaintiff, after his alleged discharge on April 14, 1934, waited until August 10, 1934 before attempting to appeal from an order discharging him, and that by the long lapse of time plaintiff lost any right of appeal he might have had, being guilty of laches and acquiesced in the action of this Board in so discharging him.

"5. Because plaintiff's petition shows on its face that this court is without jurisdiction of this suit, which is for damages, because plaintiff in said petition alleges a breach of contract and sues for damages by reason of such breach, and this court is without jurisdiction of such matter which is not an appeal from a judgment of the County Superintendent and County School Board upholding defendant's acts in discharging plaintiff, but is an independent suit for damages, and the amount involved is below the jurisdiction of the court."

Without hearing any evidence, the court sustained the plea in abatement. We are not informed by the record upon what ground or grounds the plea was sustained. The plea in abatement is in the nature of demurrers and exceptions to the petition upon several grounds. Becker v. Becker (Tex. Civ. App.) 218 S. W. 542. Since no evidence was introduced by either party, the plea was treated as demurrers or exceptions by counsel and by the court, and the contentions will be considered upon the same theory in this court.

The Special Act of the Legislature creating the Morton Independent School District in 1925, and the provision that the board of trustees of said district shall consist of three members, is a valid law and has not been modified, amended, or repealed. Article 7, § 3, of the Constitution, prior to its amendment in November, 1926, provided that the Legislature had authority to form school districts either by general or special law, and that the enactment of a general law by the Legislature relating to independent school districts did not exhaust the Legislature's powers. Cain v. Lumsden (Tex. Civ. App.) 204 S. W. 115; Frass v. Darrouzett Indep. School Dist. (Tex. Civ. App.) 277 S. W. 751.

Article 7, § 3, of the Constitution, under which these and other cases were decided, was amended on November 26, 1926. Proclamation putting the amendment into effect was issued January 20, 1927. The amendment provides that: "The Legislature may also provide for the formation of school districts by general laws." The effect of this amendment is to deprive the Legislature of further authority to create independent school districts by special acts, but because the amendment, and no statute enacted by the Legislature since, has attempted to modify or destroy independent school districts...