State ex rel. Bishop v. Board of Ed. of Mt. Orab Village School Dist., Brown County

• Citation: 40 N.E.2d 913,139 Ohio St. 427
• Decision Date: 25 March 1942
• Docket Number: 28916 and 28918.,28849,28834
• Parties: STATE ex rel. BISHOP v. BOARD OF EDUCATION OF MT. ORAB VILLAGE SCHOOL DIST., BROWN COUNTY. STATE ex rel. CREIG v. BOARD OF EDUCATION OF CITY SCHOOL DIST. OF CITY OF CLEVELAND et al. STATE ex rel. LYNCH v. SIMPSON et al., Board of Education of Springfield Rural School Dist., Summit County. STATE ex rel. BROWN v. BOARD OF EDUCATION OF CITY OF ELYRIA.
• Court: United States State Supreme Court of Ohio

40 N.E.2d 913

139 Ohio St. 427

STATE ex rel. BISHOP v. BOARD OF EDUCATION OF MT. ORAB VILLAGE SCHOOL DIST., BROWN COUNTY.

STATE ex rel. CREIG v. BOARD OF EDUCATION OF CITY SCHOOL DIST. OF CITY OF CLEVELAND et al.

STATE ex rel. LYNCH v. SIMPSON et al., Board of Education of Springfield Rural School Dist., Summit County.

STATE ex rel. BROWN v. BOARD OF EDUCATION OF CITY OF ELYRIA.

Nos. 28834, 28849, 28916 and 28918.

Supreme Court of Ohio

March 25, 1942

Syllabus by the Court.

1. Under the first proviso of Section 7690-2, General Code, 119 Ohio Laws, 451, a part of the Ohio Teachers' Tenure Act, a teacher in the public schools holding a professional, permanent or life certificate, who was completing five or more consecutive years of employment by any board of education at the time of the passage of the act, was entitled to the tender of a continuing contract of employment by such board on September 1, 1941, or within a reasonable time thereafter.

2. The words 'at the time of the passage of this act,' as used in the first proviso of Section 7690-2, General Code mean the date upon which the act was approved and signed by the Governor, viz., June 2, 1941.

3. The first proviso of Section 7690-2, General Code, applies to a certificated teacher completing the prescribed years of continuous employment within a reasonable time before or after June 2, 1941, or within a reasonable time before or after the termination of the school year 1940-1941 in a particular school district.

4. The first proviso of Section 7690-2, General Code, is not violative of Section 28, Article II of the Constitution of Ohio, for bidding the passage of retroactive laws or laws impairing the obligation of contracts.

5. The second proviso of Section 7690-2, General Code, relating to a contract system in school districts of less than eight hundred pupils, has reference to beginning teachers, new teachers and to their re-employment, and is without application to a certificated teacher completing five or more consecutive years of employment in such a school district.

6. Under the pertinent provisions of Sections 7690-1 and 7690-2 General Code, a certificated teacher completing five or more consecutive years of employment, who on September 1, 1941 had not resigned, elected to retire, or been retired upon reaching seventy years of age, pursuant to Section 7896-34 General Code, was entitled to the tender of a continuing contract from a board of education by which he had been so employed, notwithstanding such teacher came within a rule of the board denying employment to teachers who had reached the age of sixty-five.

7. Under the first proviso of Section 7690-2, General Code, a certificated female teacher completing five or more continuous years of employment by a board of education was entitled to the tender of a continuing contract from such board on September 1, 1941, or within a reasonable time thereafter, even though she was then married and there was a rule of the board in force against the employment or retention of married women teachers.

Appeal from Court of Appeals, Summit County.

These four cases involve the interpretation and validity of certain parts of the so-called 'Ohio Teachers' Tenure Act' (Sections 7690-1 to 7690-8, General Code, 119 Ohio Laws, 451), passed by the General Assembly of Ohio May 15, 1941, approved by the Governor June 2, 1941, effective September 1, 1941.

The provisions of law affecting these controversies read as follows:

Section 7690-1, General Code.

'Each board of education shall enter into contracts for the employment of all teachers and shall fix their salaries which may be increased but not diminished during the term for which the contract is made except as provided in Section 7690-3 of this act. Teachers must be paid for all time lost when the schools in which they are employed are closed owing to an epidemic or other public calamity.

'Contracts for the employment of teachers shall be of two types: limited contracts and continuing contracts. A limited contract for a superintendent shall be a contract for such term as authorized by Section 7702 of the General Code, and for all other teachers, ad hereinafter defined, for such term as authorized by Section 7691 of the General Code. A continuing contract shall be a contract which shall remain in full force and effect until the teacher resigns, elects to retire, or is retired pursuant to Section 7896-34 of the General Code, or until it is terminated or suspended as provided in this act and shall be granted only to teachers holding professional, permanent, or life certificates.

'The term 'teacher' as used in this act shall be deemed to mean and include all persons certified to teach and who are employed in the public schools of this state as instructors, principals, supervisors, superintendents, or in any other educational position for which the employing board requires certification.

"Year' as applied to terms of service for the purposes of this act means actual service of not less than one hundred and twenty days within a school year, provided however that any board of education may grant a leave of absence for professional advancement with full credit for service.

"Continuing service status' for a teacher means employment under a continuing contract.'

Section 7690-2, General Code:

'* * * Provided, however, that on or before September 1, 1941, a continuing contract shall be entered into by each board of education with each teacher holding a professional, permanent, or life certificate who, at the time of the passage of this act, is completing five or more consecutive years of employment by said board. * * * Provided, however, that in school districts of under eight hundred pupils, the following contract system shall control:

'a. Beginning teachers, who have not previously been employed as a teacher in any school, shall be hired for one year.

'b. New teachers, who have had at least one year's experience as teachers in other schools, shall be employed for a period of time commensurate with their past experience at the discretion of the hiring board of education, provided that no such contract shall be for more than five years.

'c. Upon re-employment after the termination of the first contract, the new contract shall be for not less than three years nor more than five years provided that the teacher's educational qualifications have been fulfilled and the teacher's work has been satisfactory.

'd. Upon re-employment after the termination of the second contract, the teacher's contract shall be for five years and subsequent renewal thereof shall be for five-year periods, or the board of education may at any time grant a continuing contract.'

Section 7690-6, General Code: 'The contract of a teacher may not be terminated except for gross inefficiency or immorality; for wilful and persistent violations of reasonable regulations of the board of education; or for other good and just cause. Before terminating any contract, the employing board of education shall furnish the teacher a written notice signed by its clerk of its intention to consider the termination of his contract with full specification of the ground or grounds for such consideration. Unless the teacher so notified shall, within ten days subsequent to the receipt of such notice, demand in writing an opportunity to appear before the board and offer reasons against such termination, the board may proceed with formal action to terminate the contract. * * *'

Section 7690-7, General Code: 'When by reason of decreased enrollment of pupils, or by reason of suspension of schools or territorial changes affecting the district, a board of education decides that it will be necessary to reduce the number of teachers, it shall have full authority ot make reasonable reducation. But, in making such reduction, the board shall proceed to suspend contracts in accordance with the recommendation of the superintendent of schools who shall, within each teaching field affected, give preference to teachers on continuing contracts and to teachers who have greater seniority. Teachers whose continuing contracts are suspended shall have the right of restoration to continuing service status in the order of seniority of service in the district if and when teaching positions become vacant or are created for which any of such teachers are or become qualified.'

Section 7689, General Code: 'Beginning on July 1, 1925, the school year shall begin on the first day of July of each calendar year and close on the thirtieth day of June of the succeeding calendar year * * *.'

Section 7896-34, General Code:

'Any teacher, except a new entrant with less than five years of service, who has attained sixty years of age may retire, if a member, by filing with the retirement board an application for retirement. The filing of such application shall retire such member as of the end of the school year then current.

'At the end of the school year in which they become members the retirement board shall retire all teachers who were over seventy years of age at the time they became members and shall retire all other members at the end of the school year in which the age of seventy is attained, provided in each case the consent of the employer is secured.'

In cause No. 28834, Oscar M. Bishop filed a petition in mandamus in this court, alleging that since 1927 he had been the holder of an elementary life teaching certificate; that since 1933 he had been continuously employed by the respondent, the Board of Education of Mt. Orab Village School District of Brown county, to teach the sixth grade in the public schools of such district, including the entire year of 1940-1941 that in May of 1941 he was recommended by the county...