State ex rel. Steele v. Board of Ed. of Fairfield

• Decision Date: 17 February 1949
• Docket Number: 6 Div. 732.
• Citation: 40 So.2d 689,252 Ala. 254
• Parties: STATE ex rel. STEELE v. BOARD OF EDUCATION OF FAIRFIELD et al.
• Court: Alabama Supreme Court

40 So.2d 689

252 Ala. 254

STATE ex rel. STEELE v. BOARD OF EDUCATION OF FAIRFIELD et al.

6 Div. 732.

Supreme Court of Alabama

February 17, 1949

Rehearing Denied May 19, 1949.

Arthur D. Shores and Peter A. Hall, both of Birmingham, and David Hood, Jr., of Bessemer, for appellant.

Harvey Deramus, of Birmingham, and G. P. Benton, of Fairfield, for appellees.

LAWSON Justice.

The appellant Maenetta Steele was a tenure school teacher, that is, she had attained a continuing service status. § 352, Title 52, Code 1940. After a hearing, as required by § 357, Title 52, Code 1940, the Board of Education of Fairfield, her employing board of education, cancelled her contract of employment on a charge of insubordination.

She began this action of mandamus in the court below to require appellees to reinstate her as a school teacher under the provisions of § 358, Title 52, Code 1940, as amended, which section is as follows: 'The action of the employing board of education, if made in compliance with the provisions of this chapter, and unless arbitrarily unjust, shall be final and conclusive. Whether such action complies with the provisions of this chapter, and whether such action is arbitrarily unjust, may be reviewed by petition for mandamus filed in the county where said school system is located. No action at law shall lie for the recovery of damages for the breach of any employment contract of a teacher in the public schools.'

The trial court denied the peremptory writ of mandamus. Motion for new trial having been overruled, Maenetta Steele has appealed to this court.

Submission was on brief, hence we will consider only those insistences made in appellant's brief. Those assignments of error not insisted on in appellant's brief are treated as waived. Louisville & Nashville R. Co. v. Holland, 173 Ala. 675, 55 So. 1001.

Appellant's first insistence is that the order or resolution cancelling her contract of employment is void and of no effect for the reason that she was not notified of such action until June 2, 1947, and that under the provisions of § 360, Title 52, Code 1940, as amended, she was entitled to notice of such cancellation not later than the first day of May, 1947.

§ 360, Title 52, Code 1940, as originally written read as follows: 'Any teacher in the public schools, whether in continuing service status or not, shall be deemed re-employed for the succeeding school year at the same salary, unless the employing board of education shall cause notice in writing to be given said teacher on or before the last day of the term of the school in which the teacher is employed; provided, however, that in no case shall such notice be given the teacher later than the first day of May of the termination of such employment, and such teacher shall be presumed to have accepted such employment unless he or she shall notify the employing board of education in writing to the contrary on or before the first day of June.'

Section 360, Title 52, Code 1940, was amended in 1945, General Acts, 1945, p. 646, by adding thereto the following: 'The employing board of education shall not cancel the contract of any teacher in continuing service status, nor cause notice of non-employment to be given to any teacher whether in continuing service status or not except by a vote of majority of its members evidenced by the minute entries of said board made prior to or at the time of any such action.'

In treating this first contention of appellant, we are not concerned directly with the 1945 amendment, so when mention is made hereinafter of § 360, Title 52, Code 1940, we have reference to the provisions contained in said section as originally enacted unless specific reference is made to the amendatory provisions.

We are called upon here to determine whether the provisions of § 360, Title 52, Code 1940, to the effect that a teacher is deemed re-employed for the ensuing year unless the employing board of education gives written notice to the teacher of the termination of his or her employment on or before the last day of the term of the school and in no event later than the first day of May, were intended to apply when the employing board of education cancels the contract of a teacher in continuing service status in accordance with the procedural requirements of § 357, Title 52, Code 1940.

As a result of the enactment of the Teacher Tenure Law, two classes of teachers have been created: those who have attained a continuing service status and who may be referred to hereinafter as tenure teachers, and those who have not attained that status and who may be referred to hereinafter as probationary teachers.

The contract of a tenure teacher by virtue of the statute, § 353, Title 52, Code 1940, remains in full force and effect until the parties enter into a new contract or the existing contract is cancelled because of the existence of one of the grounds set out in § 356, Title 52, and in strict compliance with the procedural requirements provided in § 357, Title 52, Code 1940. In other words, an employing board of education, by virtue of the Teacher Tenure Law, is without authority to summarily terminate the employment of a tenure teacher at the end of a school year.

But an employing board of education does have the authority to summarily terminate the employment of a probationary teacher at the expiration of the period covered by the contract, usually a year. Whittington v. Barbour County Board of Education, 250 Ala. 692, 36 So.2d 83.

We are of the opinion that § 357, Title 52, Code 1940, governs exclusively in so far as notice and other procedural requirements are concerned in the cancellation of a contract of a tenure teacher, and that § 360, Title 52, Code 1940, controls as to the termination of employment of a probationary teacher.

We think it clear that the provisions of § 360, Title 52, Code 1940, were incorporated into the Teacher Tenure Law for the purpose of requiring employing boards of education who were not going to reemploy probationary teachers to give such teachers sufficient notice of that fact that they might have time to seek employment elsewhere. But, as before indicated, employing boards of education are without authority to summarily terminate the employment of a tenure teacher, hence such notice as is provided for in § 360, Title 52, Code 1940, would be abortive as to such a teacher.

It is true that § 360, Title 52, Code 1940, contains language susceptible of the construction that its requirements as to notice, etc., apply to all teachers, for it says 'any teacher in the public schools, whether in continuing service status or not * * *.' But we think it clear that in using that language the legislature intended merely to emphasize the fact that the provisions of that section applied to those teachers who were not in continuing service status, for with one or possibly two exceptions all the preceding sections of the Tenure Law relate exclusively to tenure teachers.

Termination of employment and cancellation of an existing contract are entirely different matters. The latter can be done only for cause and that cause may arise at any time. Certainly the legislature did not intend to limit the right of an employing board of education to cancel the contract of a teacher for cause to any specific time during the year, and yet such would be the result if § 360, Title 52, Code 1940, is given the construction as contended for by counsel for appellant.

We hold, therefore, that the provisions of § 360, Title 52, Code 1940, as originally written, apply only to probationary teachers and have no application to tenure teachers, hence there is no merit in appellant's contention that the order or resolution of her employing board of education cancelling her contract, under date of May 27, 1947, and of which she had notice on June 2, 1947, is void and of no effect because not taken prior to May 1, 1947.

In reaching this conclusion we have given consideration to the case of Holcombe v. County Board of Education of Marion County et al., 242 Ala. 20, 4 So.2d 503, and to the case of Brown v. Board of Education of Blount County, 242 Ala. 154, 5 So.2d 629. But what was said in those cases as to the effect of § 360, Title 52, Code 1940, must be considered in the light of the issues there presented. Both of those cases involved the question as to whether or not the employment of probationary teachers had been correctly terminated.

Appellant insists that due process of law was not observed in the hearing and that the hearing was not held in accordance with the requirements of § 357, Title 52, supra, in that she was not permitted to present evidence bearing upon the reasons for the proposed cancellation of her contract and that, therefore, the order or resolution cancelling her contract was void and of no effect and, hence, the trial court erred in not granting the peremptory writ of mandamus.

The appellant was charged with insubordination upon the ground that she refused twice to take a mental ability test which was required by a rule or regulation of the employing board of education.

At the hearing the following undisputed facts were made to appear That the employing board of education on or about February 27, 1947, adopted and entered on its minutes a rule requiring all classroom teachers to take a mental ability test; that this test was presented to the teachers of the various schools under the jurisdiction of the board on or about March 25, 1947, without any notice having been given them that they were to take the test; that on that date some of the teachers took the test, others refused, and still others merely signed their names to the papers on which the questions appeared and returned the papers without answering the questions;...