State ex rel. Clark v. Stout, 26239.

• Decision Date: 28 October 1933
• Docket Number: No. 26239.,26239.
• Citation: 187 N.E. 267,206 Ind. 58
• Parties: STATE ex rel. CLARK v. STOUT, Township Trustee.
• Court: Indiana Supreme Court

206 Ind. 58

187 N.E. 267

STATE ex rel. CLARK

v.STOUT, Township Trustee.

No. 26239.

Supreme Court of Indiana.

Oct. 28, 1933.

Appeal from Franklin Circuit Court; Roscoe C. O'Byrne, Judge.

Action in mandate by the State, on the relation of Ernest S. Clark, against Burhl H. Stout, Township Trustee, etc. From a judgment in favor of the defendant, the plaintiff appeals.

Reversed, and cause remanded, with directions.

Charles A. Lowe, of Lawrenceburg, for appellant.

V. J. McCarty and Wm. L. Chambers, both of Brookville, for appellee.

TREANOR, Judge.

This was an action in mandate to compel the appellee as township trustee to certify to a transcript of the proceedings had before him wherein he canceled the indefinite teaching contract of the relator as principal of the Whitewater Consolidated School, and to compel said trustee to take the necessary legal steps to permit the relator to perfect an appeal of said matter to the county superintendent of schools of Franklin county, Ind. The cause was tried by the court without a jury upon an agreed statement of facts. The court found generally for the appellee and rendered judgment that the plaintiff take nothing by his complaint and for costs.

We think that the questions involved in this appeal are accurately set out by appellee in the following statement: “(1) Is appellant a permanent teacher? and (2) If appellant is a permanent teacher did he perfect his appeal from decision of trustee to County Superintendent in a proper manner under the Teacher's Tenure Act and the school laws of Indiana, so that trustee, appellee herein, should be mandated to approve appeal bond and file papers on appeal with the County Superintendent of Schools under said Section II of said Teacher's Tenure Law?”

The agreed statement of facts shows that the superintendent of schools did not at any time make a report upon appellant's “preparation, experience and license,” and appellee urges that, in the absence of such report, relator did not become a permanent teacher. The pertinent sections of the Teacher's Tenure Act are sections 1 and 3, which are in part as follows:

Section 1: “Any person who has served or who shall serve under contract as a teacher in any school corporation in the State of Indiana for five or more successive years, and who shall hereafter enter into a teacher's contract for further service with such corporation, shall thereupon become a permanent teacher of such school corporation. The term ‘teacher’ as used in this section shall mean and include licensed public school teachers, supervisors and principals of all public school corporations, and licensed assistant superintendents and superintendents of school cities and towns. 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.”

Section 3: “No teacher shall be appointed by any school corporation in Indiana, and no teacher shall become a permanent teacher in any such school corporation, until the superintendent, in the case of school cities and school towns, and the county superintendent, in the case of townships and school cities and towns not having superintendents, shall have made a report upon such teacher's preparation, experience, and license, and it shall be the duty of every such superintendent, within ten days after request, to make such report upon any person whom the school corporation is considering as an applicant: Provided, That nothing contained in this section shall be deemed to prevent the granting to any superintendent of additional authority in the selection and employment of teachers either by law or by the rules or regulations of any school corporation.”¹

Section 1 purports to set out all the conditions precedent to a teacher's becoming a permanent teacher under an indefinite contract, and the provisions of section 2 seem to have been drawn upon the assumption that section 1 is exclusive as to the requirements for a permanent teacher, since its provisions apply to the cancellation of “any indefinite contract with a permanent teacher as defined in section 1 of this act.”²

Consequently, in order to affirm the judgment of the trial court in so far as it rests upon section 3, we must hold that section 3 makes the report of the superintendent an additional condition precedent to a teacher's becoming a permanent teacher. It is clear that section 3 contemplates that school boards and township trustees shall not appoint a teacher or cause a teacher to become a permanent teacher until they have had the advantage of a report on the “preparation, experience, and license” of such teacher. It is also made the duty of superintendents to furnish such report “upon any person whom the school corporation is considering as an applicant.” Since the school corporation, in the person of the school board or township trustee, would alone know who is being considered as an applicant, the reasonable inference is that the request to a superintendent for such report must come from the corporation. Obviously the report should be made to the school corporation. If the report is a condition precedent to the exercise of the school corporation's power to appoint a teacher or to enter into an indefinite contract with a teacher, it follows that a person with all the qualifications to teach in a particular position, who has entered into a contract in good faith, may discover that his supposed contract is a nullity, for the reason that the school board or township trustee and the school superintendent have failed to follow the requirements of section 3. For example, in the instant case, the relator had taught more than five years in Whitewater school township at the time the Teacher Tenure Act became law. Thereafter in the years 1927, 1928, 1929, and 1930, the appellant and Whitewater school township entered into contract for the ensuing school terms. If relator did not become a permanent teacher under the contract signed in 1927, he was not legally “appointed” as a nontenure teacher, since no report was made by the county superintendent upon appellant's “preparation, experience, and license” at any time during those years. The parties acted in good faith, yet, if appellee is correct in his construction of section 3, the trustee of Whitewater township illegally paid appellant for his services as teacher during the school years 1927-1931, and relator failed to become a permanent teacher, although the facts of his case completely satisfied the requirements of section 1 of the Tenure Act. In short, if the lack of a report upon appellant's preparation, experience, and license prevented his becoming a permanent teacher, the result was that the failure of the township trustee to follow the provisions of section 3 nullified the plain intent and purpose of section 1 and caused a great injustice to appellant. Such a result is undesirable, but, if section 3, properly construed, requires such a result, we must accept it. If, however, the language of section 3 reasonably permits a construction which will avoid an unjust or undesirable...