State ex rel. Keeney v. Ayers

• Decision Date: 17 June 1939
• Docket Number: 7814.
• Citation: 92 P.2d 306,108 Mont. 547
• Parties: STATE ex rel. KEENEY v. AYERS, Governor, et al.
• Court: Montana Supreme Court

92 P.2d 306

108 Mont. 547

STATE ex rel. KEENEY v. AYERS, Governor, et al.

No. 7814.

Supreme Court of Montana

June 17, 1939

Rehearing Denied July 8, 1939.

Appeal from District Court, First District, Lewis and Clark County G. W. Padbury, Jr., Judge.

Mandamus proceeding by the State of Montana, on the relation of Philip O. Keeney, against Roy E. Ayers, Governor of the State of Montana, and others, to compel reinstatement of petitioner as librarian and professor of library economy at the Montana State University. From a judgment granting a writ of mandate the defendants appeal.

Affirmed.

MORRIS J., dissenting.

Howard Toole, of Missoula, and Booth & Booth, of Glasgow, for appellants.

W. D. Rankin and Arthur P. Acher, both of Helena, for respondent.

JOHNSON Chief Justice.

Petitioner was granted a writ of mandate by the district court of Lewis and Clark county, requiring the State Board of Education and the president of the University to reinstate him as librarian and professor of library economy at the Montana State University. The State Board of Education and the president of the University have appealed from the judgment.

The facts alleged and proven are that the petitioner's employment began on September 1, 1931, and that his initial employment was for the year ending September 1, 1932. Thereafter, by action of the appellant board, he was given new annual contracts for the periods ending September 1 of the years 1933, 1934, 1935, 1936, and 1937. Each of these contracts consisted only of a "notice of appointment" signed by the chancellor or executive secretary, and an "acceptance of appointment" signed by the petitioner. However, the notice of appointment bore the statement, "This appointment is subject to the regulations governing tenure printed on the reverse side of this sheet." These regulations consisted of ten paragraphs designated: "(University Act No. 673, Adopted by the State Board of Education June 22, 1918, and Amended April 8, 1919, April 26, 1921, and April 3, 1922.)"

The pertinent paragraphs of the regulations are as follows:

"2. Professors and associate professors are on permanent appointmen; provided, however, that the initial appointment to a full professorship or to an associate professorship may be for a limited term. Such limited term appointment may be renewed; provided, however, that reappointment after three years of service shall be deemed a permanent appointment."

"5. At the expiration of the term of appointment of a professor or an associate professor, if appointed for a limited term, or of an assistant professor, lecturer, instructor, or assistant, there is no obligation whatever to renew the appointment, and without renewal the appointment thereupon lapses and becomes void. In every case of such non-renewal of appointment, official notice thereof shall be given by the chief executive of the institution, station or division, with the approval of the chancellor, not later than April 15th; provided, that a notice given ninety days prior to the expiration of the contract shall be sufficient in case of the non-renewal of the appointment of any member of the Agricultural Extension Staff."

"7. Any administrative officer or any member of an instructional or scientific staff may be removed at any time by the Board, (a) after a hearing, (b) on the recommendation of the Chancellor; provided, that with such recommendation there shall be transmitted a statement from the chief executive of the institution, station or division with which such officer or staff member is connected, and also a copy of any report of the Committee on Service prepared in accordance with the provisions of Section 8 below."

"In case of inefficiency, reprehensible conduct or insubordination, the Chancellor may suspend any administrative officer or member of the instructional or scientific staffs until the next regular or special meeting of the Board. In such case the payment of salary shall cease at the time of suspension. If the charges made are not sustained by the Board, salary shall be paid for the period of suspension. The Board may direct the suspension of any administrative officer or member of any instructional or scientific staff pending an investigation by the Chancellor of charges presented."

"8. For the purpose of securing to all administrative officers and members of instructional and scientific staffs proper professional tenure, and for the purpose of promoting efficient service to the University, there is hereby established in each of the institutions of the University a Committee on Service to consist of one professor appointed by the Chancellor, one professor appointed by the president, one professor elected by the Faculty of the institution. The members of such committee shall be appointed to serve for one year beginning September first. Whenever any member of the Committee on Service becomes disqualified for any reason, it shall be the duty of the proper appointing officer to appoint a successor for the unexpired term.

It shall be the duty of such Committee on Service at the direction of the chief executive of the institution, station, or division, or upon the request of any member of a staff whose removal is proposed, or who is under suspension, to inquire into the case and to submit a report of its findings to said chief executive and to the staff member involved. The chief executive shall transmit a copy of such report to the Chancellor for the consideration of the Board. At the time of such consideration the officer or member involved shall have the right to appear personally before the Board in his own defense."

Substantially the only difference in these six contracts, except as to dates of commencement and termination, was the striking out, on the back of the last contract, of regulation 2.

Petitioner completed each of these contracts by signing the acceptance of appointment thereon and returning it to the president of the University. His acceptances were uniform, except that in the last one, from the back of which regulation 2 had been stricken, he added the following paragraph before his signature: "In signing this acceptance I do not mean to accept in any way a temporary appointment in lieu of my regular status as a professor on permanent tenure but to indicate my willingness to continue to serve in my present capacity."

Upon receipt of it, the president wrote petitioner a letter reading:

"July 1, 1936.

Professor Philip O. Keeney,

Montana State University.

My Dear Professor Keeney:

We had delayed accepting and transmitting to Helena your modified acceptance of the contract issued you after the April meeting of the State Board of Education. The reason for this is that neither this office nor that of Dr. Swain at Helena is authorized to enter into subcontracts or side agreements other than the specified contract.

On my last visit to Helena I discussed the matter with Dr. Swain, and he and I both looked up your contract tenure status and found that you had been issued nothing but the one year contract form year after year and that this was done on special instructions from Dr. Clapp. The paragraph with reference to tenure of professors on the back of the contracts is a general statement only and does not apply where a specific one year contract is offered. Mr. Clapp had indicated that he was not so completely satisfied with your cooperation and with the general effect of your influence on the students from the standpoint of the parents of this state that he was willing to recommend you for permanent status.

Certainly, as a result of happenings during the past academic year, I have had nothing which would encourage me to feel more strongly either one way or the other than Dr. Clapp had felt during the whole of your tenure here. What I proposed to do was to let the status quo continue through the coming year until we could find more definitely whether the library is running efficiently and effectively, whether you and I can cooperate freely and fully, and whether you are happy in the work you are doing here. Naturally, if any of these conditions are not true, then I would not wish to urge you to remain and be unhappy and make the rest of us unhappy, too.

This time you have been offered exactly the same sort of contract that you have had in the past, and any writing on your acceptance blank naturally does not affect your standing one way or the other. However, as I have already told you, I am very anxious to work out our mutual problems to our joint best advantage, and I shall certainly see that you are protected in every way in your interests as long as things are going as nicely as they have been recently.

Sincerely yours,

George Finlay Simmons,

President."

Apparently without further discussion or correspondence petitioner executed the oath of office which had been required of him each year, and proceeded to fill his position as librarian and professor during the school year of 1936-1937.

On April 6, 1937, the president wrote petitioner a letter reading as follows:

"April 6, 1937.

Professor Philip O. Keeney,

Montana State University.

Dear Professor Keeney:

As I told you a year ago, and reiterated in my letter of July 8th of last year, I had hopes that our library and general personnel problems would solve themselves so well during this year that the matter of your continuing on this campus would be beyond question. In that letter of July 8th I pointed out that on special instructions from Dr. Clapp you had been continued from year to year on one-year contracts only, that Dr. Clapp had indicated himself not completely satisfied with your services and influence, and that I had been similarly disturbed. I should like to quote further...