State ex rel. Phillips v. Ford

• Decision Date: 05 September 1944
• Docket Number: No. 8461.,8461.
• Citation: 116 Mont. 190
• Parties: STATE ex rel. PHILLIPS v. FORD et al.
• Court: Montana Supreme Court

116 Mont. 190

STATE ex rel. PHILLIPS

v.FORD et al.

No. 8461.

Supreme Court of Montana.

May 10, 1944.

As Amended on Denial of Rehearing Sept. 5, 1944.

Appeal from First Judicial District Court, Lewis and Clark Counties; George W. Padbury, Jr., Judge.

Proceeding by the State, on relation of Paul C. Phillips, for a writ of mandate commanding Sam C. Ford, governor, and others, constituting the State Board of Education, to reinstate relator as professor of history and political science at Montana State University. From a judgment awarding relator a peremptory writ of mandate, defendants appeal.

Cause remanded, with directions to modify judgment, and judgment, as modified, affirmed.

ERICKSON, J., dissenting in part.

R. V. Bottomly, Atty. Gen., and George S. Smith and Chas. L. O'Donnell, Asst. Attys. Gen., for appellants.

Walter Aitken, of Bozeman, and Lester H. Loble and Albert H. Angstman, both of Helena, for respondent.

JEREMIAH J. LYNCH, District Judge, sitting in place of ADAIR, Justice, disqualified.

This is an appeal by defendants from a judgment awarding to the relator a peremptory writ of mandate commanding them, among other things, to reinstate him in the position of professor of history and political science at Montana State University, from which he alleges he has been unlawfully excluded by them.

It appears from the record that the defendants constitute the state board of education of the state of Montana, which will hereafter be referred to as the board, and that George Finlay Simmons was the president of Montana State University from January 1, 1936, to September 1, 1941, and that the relator, Paul C. Phillips, was a professor of history and political science at the institution from September, 1915, to October 2, 1937. His connection with the university began, however, in September, 1911, as an instructor in history. On the 27th day of September, 1937, Evelyn Flannery, a young woman who had theretofore worked on a historical works project of WPA under the direction of the relator, made an affidavit charging him with an attempted rape on her person. Warren H. Stillings, her brother-in-law, joined in the affidavit which was then placed in the hands of President Simmons. At that time Flannery and Stillings demanded a large sum of money of Phillips and his resignation as professor at the university in satisfaction of the alleged wrong. Simmons and Phillips conferred on the 27th and once or twice afterward concerning the charge and the probable consequences to the latter. While Phillips at all times denied the charge it was agreed between them that it created a difficult and disagreeable situation not only for Phillips but for Simmons and the university as well. Realizing that the occasion required the services of counsel, Phillips on or about the 28th day of September retained E. C. Mulroney, an attorney at law, and the law firm of Pope, Smith & Smith to look after his interests. On the 2d day of October, 1937, when he was past the age of fifty-three, he delivered to President Simmons his written resignation as follows:

“Missoula, Montana

October 1, 1937

President George F. Simmons

Montana State University

Missoula, Montana

Dear Sir:

The charges which have been made against me and about which you are familiar seriously impair my usefulness to Montana State University. After twenty-six years of continuous service in the institution and in view of my constant and continued loyalty to the University, my deep concern for its best interests and my high regard for the esteem in which it is held by the people of the State, I feel that it is my duty, and therefore of my own accord, I have decided at this time to sever my relations with it. I have employed counsel to prove the falsity of these charges and am going to devote my full time to this end. Until my name is cleared, my presence on the staff can only cause embarrassment to the University. I therefore tender my unqualified resignation, effective as of this date, as professor and executive Vice-President, with the request that you transmit the same to the Montana State Board of Education.

Very sincerely yours, Paul C. Phillips.”

Thereafter and up to the 13th day of December, 1937, he rendered no service to the university.

The allegation in the amended petition and the finding of the court to the effect that the resignation was the result in part of coercion used on Phillips by Simmons is not sustained by the evidence. By that we mean that the evidence clearly preponderates against the finding and does not support the allegation. At the time the resignation was delivered and for several days prior thereto Phillips was in frequent consultation with his four attorneys, two of whom were old practitioners, eminent in their profession, and all of whom were learned in the law and intent on doing the best possible for their client. Believing it was the wisest course to pursue after a consideration of all the circumstances they advised him to resign but with the understanding that if he were afterwards vindicated in the courts President Simmons would recommend his reinstatement to the board. The resignation which was prepared by his attorneys followed. It is hard to escape the conclusion that the resignation came as the result of advice from his counsel and not otherwise. Walker v. Board of Directors, 159 Or. 177, 78 P.2d 618;Columbia Sav. Bank & Trust Co. v. True, 108 S.C. 56, 93 S.E. 389;Palmer v. Shields, 71 Wash. 463, 128 P. 1051;Rhodes v. Owens, 101 Wash. 324, 172 P. 241. The point is of no particular importance, however, as we shall show later.

It further appears from the record that on or about the 2d day of October, Phillips on the advice of his counsel brought an action for slander or libel arising out of the Flannery charge against Stillings in the district court of Missoula county. The first trial thereof before a jury resulted in a disagreement. The second trial before a jury resulted in a verdict favorable to the plaintiff and judgment in conformity thereto was on the 29th day of April, 1938, rendered and entered.

On the 12th day of December, 1937, Evelyn Flannery retracted the charge which she had theretofore made against Phillips in the following language:

“State of Montana

County of Missoula, SS.

Evelyn Flannery, being first duly sworn, on oath, deposes and says: that on the 27th day of September, 1937, I made a certain written statement, signed before a H. C. Christiansen, charging Dr. Paul Phillips with attempting a criminal assault upon my person and also that Dr. Phillips is viciously and criminally immoral. Said written statement is not true; Dr. Paul Phillips did not make any criminal assault upon my person, nor has he ever been guilty of any impropriety toward me. During all the time I have known Dr. Paul Phillips he always treated me with courtesy and respect. At the time I signed said written statement I was in poor health and did not fully understand and realize the full import of the said statement.

Evelyn Flannery

Subscribed and sworn to before me this 12th day of December, 1937.

(Notarial Seal)

Fred W. Schilling

Notary Public for the State of Montana, residing at Missoula, Montana. My commission expires August 10, 1939.”

The retraction was on that day handed by her counsel, Fred W. Schilling, to Phillips' counsel, Messrs. Mulroney, Pope, Smith and Smith. The court found and properly so we think under the evidence that the document was afterwards on the 12th day of December delivered to President Simmons.

The court found also that on the 12th day of December, 1937, Phillips signed a withdrawal of his resignation prepared by his attorneys and that on the same day the paper was delivered to President Simmons. The court found, too, that in the morning of the 13th of December, 1937, and before the board opened its meeting, Phillips handed to Simmons another withdrawal made by himself as follows:

“Missoula, Montana, December 12, 1937

Dr. George Finlay Simmons

President Montana State University

Missoula, Montana

Dear Dr. Simmons:

The retraction by Miss Evelyn Flannery of the charges made against me, dated September 27, 1937, which charges led me to submit my resignation in order to save the University from embarrassment pending the outcome of a slander suit which I have instituted, has completely changed the situation. As my resignation has not been accepted by the State Board of Education I hereby withdraw said resignation and ask for reinstatement as professor of history.

Respectfully submitted, Paul C. Phillips.”

These findings are, we believe, amply sustained by competent evidence.

The record further discloses that the board met in the Student Union building in the forenoon of December 13, 1937, and in a more or less informal way accepted the resignation. Apparently the withdrawals were not then called to the board's attention. Phillips upon learning of the action of the board as it was about to recess requested Messrs. Mulroney and Pope to present his case for reinstatement at the afternoon session. They did so but nothing came of it.

The relationship between the board and Phillips was that of employer and employee. It was contractual in character. 11 C.J. 995; 14 C.J.S., Colleges and Universities, § 21. According to the pleadings and under the rules and regulations of the board he held his position under what is known in scholastic parlance as permanent tenure. State ex rel. Keeney v. Ayers, 108 Mont. 547, 92 P.2d 306. Under a provision of the rules and regulations of the board in force on the 2d day of October, 1937, and up to and including the 13th day of December, 1937, the president, whoever he may be, acted “as the medium of communication between the board and the officers and organization of the university.” The board thereby authorized professors of the university to deliver communications of this kind to the president for them, and the relator was entitled to rely upon that authorization, as he manifestly did....