State ex rel. Brown v. The Board of Education of City of St. Louis

• Decision Date: 22 May 1922
• Citation: 242 S.W. 85,294 Mo. 106
• Parties: THE STATE ex rel. LUKE BROWN et al., Appellants, v. THE BOARD OF EDUCATION OF THE CITY OF ST. LOUIS
• Court: Missouri Supreme Court

242 S.W. 85

294 Mo. 106

THE STATE ex rel. LUKE BROWN et al., Appellants, v. THE BOARD OF EDUCATION OF THE CITY OF ST. LOUIS

Supreme Court of Missouri

May 22, 1922

Appeal from St. Louis City Circuit Court. -- Hon. Benjamin J. Klene Judge.

Reversed and remanded.

S. H West and Anderson, Gilbert, Wolfort & Ely for appellant.

(1) The court erred in holding relators could not bring this suit. Sec. 11472, R. S. 1919. (2) Certiorari is the proper remedy to restrain public boards when they act in excess of their jurisdiction. State ex rel. v. Morehead, 256 Mo 692; State ex rel. v. Bright, 224 Mo. 235; State ex rel. v. Wills, 210 Mo. 621; State ex rel. v. Slover, 113 Mo. 210; State ex rel. v. Knott, 207 Mo. 167; State ex rel. v. Johnson, 138 Mo.App. 813; School District v. Pace, 113 Mo.App. 143. (3) The school board has no power to terminate a teacher's contract. This power is vested in the Superintendent of Instruction, and no rule to the contrary is authorized, and employment is on a basis of merit, and teachers can only be discharged for cause. Sec. 11461, R. S. 1919; Ch. XVI, R. S. 1919; King v. School Board, 71 Mo. 628; Arnold v. School District, 78 Mo. 232; Oakes v. School District, 98 Mo.App. 163; Frazier v. School District, 24 Mo.App. 254. (4) Teachers in the St. Louis public schools are appointed in the first instance by the Superintendent of Instruction on a basis of merit, after examination by said superintendent, and their employment, when passed upon by the board, thereafter continues until removed in the manner prescribed by the statute; that is, when the board passes upon, with approval, the suspension for cause by the superintendent. A rule of the board to the contrary is illegal and unauthorized. Sec. 11461, R. S. 1919; Chapter XVI, R. S. 1919; State ex rel. v. Walbridge, 153 Mo. 200. (5) Every word in the statute must be given a meaning unless to do so would nullify the rest of the statute. State ex rel. v. Gordon, 266 Mo. 411; State ex rel. v. Roach, 258 Mo. 553; State ex rel. v. Harter, 188 Mo. 530; Hegberg v. Railroad, 164 Mo.App. 557. The construction claimed by the respondent will render the word "business" useless. Outside of dealing with the funds and property, the only function our school board has is to deal with the teaching branch. If the Legislature intended to limit this statute merely to account for the funds and property, it would not have added the word "business." "Funds" and "property" exhaust with the genus of funds and property, and there is nothing left of funds or property not comprehended in the terms funds and property, Therefore there can be no basis to invoke ejusdem generis. Making contracts with teachers is certainly doing business, and is not "funds or property."

Robert Burkham for respondent.

(1) Sec. 11472, R. S. 1919, does not give the right to "ten citizens and householders" of St. Louis to compel the Circuit Court of the City of St. Louis to review the action of the Board of Education in passing or enforcing rules relating solely to the terms upon which teachers shall be employed. This extraordinary proceeding is limited to inquiries involving the management of the public funds, property, and business committed to the care of the Board of Education, to improper losses of public moneys, to abuses of trust, to removal of members for gross misconduct or disqualification for office and to prevent illegal alienation of property of the public schools. (2) In no event is certiorari the proper remedy, for: (a) The action of respondent in determining the terms on which it will employ teachers is a ministerial action. It in no way partakes of a judicial character. The writ of certiorari may only issue to review action which is of a judicial nature. 11 C. J. 121; State ex rel. v. Harrison, 141 Mo. 12. (b) The action of public officers can only be reviewed by certiorari brought at the relation of the Attorney-General or by some person whose rights have been affected by the action complained of. State ex rel. v. Harrison, 141 Mo. 12. (3) There is nothing in the law forbidding the board from employing teachers by annual contract. The fact that under the law "all appointments shall be made upon a basis of merit" does not create a life tenure, nor does it by implication or otherwise divest the board of its power to establish by appropriate rule the length of the term for which teachers shall hold their positions. (4) The provision authorizing the Superintendent of Instruction, who is an officer of the board, "to suspend any teacher for cause deemed by him sufficient" (Sec. 11461, R. S. 1919) can only relate to questions of discipline or active misconduct on the part of the teacher. It does not exclude the power of the board to provide for the termination of the relationship, particularly when, in its judgment, the public interest requires the reduction of the number of teachers or rearrangement of courses making it unnecessary to continue the employment of teachers of certain subjects.

HIGBEE, J. Elder, J., not sitting, and David E. Blair, J., dissents.

OPINION

In Banc.

HIGBEE J.

-- The relators filed a petition in the Circuit Court of the City of St. Louis, praying a writ of certiorari commanding the Board of Education of said city and the Superintendent of Instruction to certify to said court the record of a certain rule of the Board of Education, and that said rule be quashed. The writ was issued, and on motion of the defendants it was quashed. The relators took a voluntary nonsuit with leave. The case is here on appeal.

The petition avers, in substance, that the ten relators are citizens and householders of the city of St. Louis; that the defendant John J. Maddox is the Superintendent of Instruction, duly appointed by the Board of Education, and that the other individual defendants are the members of the board; that the Board of Education, in violation of the statute, has been for sometime and still is enforcing section 1 of Rule 47 adopted by said board, which is as follows:

"Section 1. The teachers appointed at the close of the scholastic year shall hold their positions for one year; and the board distinctly reserves the right of discontinuing the services of any and all of the teachers at any time, should it deem such an action expedient. Any teacher appointed to a position shall hold position for that scholastic year, subject, however, to the above-mentioned provisions governing teachers reappointed at the close of the scholastic year. Every teacher employed by the board shall be required to sign a contract accepting appointment subject to the conditions of this rule."

The petition further avers that said board is now attempting to enforce said rule and requires all the teachers of the public schools of said city to sign contracts to accept their positions subject to the condition of said rule as set forth therein, and unless restrained by the action of the court and unless said rule is quashed, said board will continue to violate the law as aforesaid and to enforce said rule. Wherefore relators pray, etc.

The defendants moved to quash the writ, because (1) the relators have no interest; (2) the rule concerns only the teachers in said schools and the defendants; (3) the action of the defendants can only be reviewed by certiorari at the relation of the Attorney-General or by some person whose rights are affected; (4) the special procedure provided by Section 11472, Revised Statutes 1919, relates only to inquiries involving the management of the public funds, property and business committed to the care of the Board of Education, to improper losses of public money, abuses of trust, removal of members for gross misconduct or disqualification for office, etc., and said procedure is not available to review the action of the board in adopting rules specifying the terms on which teachers shall be employed; (5) any person injured by the action of the board has an adequate remedy at law; (6) the action of defendants in determining the terms on which it will employ teachers is a ministerial action, not reviewable on certiorari; (7) the writ was improvidently issued; (8) said rule is lawful and valid.

The motion was sustained on the ground that the relators have not been given authority by the act in question to complain about the acts set forth in their complaint.

Every city of 500,000 or more inhabitants in this State constitutes a single school district, the supervision and government whereof is vested in a board of twelve members, to be called and known as the board of education of , a superintendent of instruction and a commissioner of school buildings. [Sec. 11456, R. S. 1919.] Such board of education shall have general and supervising control, government and management of the public schools and public school property in such city; to make, amend and repeal rules and by-laws for its meetings and proceedings for the government, regulation and management of the public schools and school property in such city, for the transaction of its business and the examination, qualification and employment of teachers, which rules and by-laws shall be binding on such board of education and all parties dealing with it until formally repealed; to levy such taxes as are or may be authorized by law for school purposes, and to purchase and hold property. [Sec. 11457, R. S. 1919.] While the act in question, Sections 11456 to 11479, is general in its terms, it relates solely to the city of St. Louis.

Section 11461, Revised Statutes 1919, so far as pertinent, reads:

"The superintendent of instruction shall have general supervision subject to the control of the board, of the course of instruction, discipline and conduct of the schools, text-books and studies; and all appointments,...