State v. Board of Education of City of Duluth, 33214.

• Decision Date: 31 December 1942
• Docket Number: No. 33214.,No. 33215.,33214.,33215.
• Citation: 213 Minn. 550,7 N.W.2d 544
• Parties: STATE ex rel. GING v. BOARD OF EDUCATION OF CITY OF DULUTH. STATE ex rel. BUNTING v. SAME.
• Court: Minnesota Supreme Court

7 N.W.2d 544

213 Minn. 550

STATE ex rel. GING v. BOARD OF EDUCATION OF CITY OF DULUTH.

STATE ex rel. BUNTING v. SAME.

No. 33214.

No. 33215.

Supreme Court of Minnesota.

December 31, 1942.

Rehearing Denied January 21, 1943.

Appeal from District Court, St. Louis County; Mark Nolan, Judge.

Certiorari by the State, on the relation of V. B. Ging, and on the relation of Elizabeth Bunting, against the Board of Education of the City of Duluth, to review the discharge of relators as teachers in the schools of Duluth. From adverse findings of fact, conclusions of law, and order for judgment, the Board appeals.

Reversed and remanded with directions.

Edward L. Boyle (Fryberger, Fulton & Boyle, of Duluth, of counsel), for appellant.

Leslie S. High, of Duluth, and Oscar Hallam, of St. Paul, for respondents.

STREISSGUTH, Justice.

Respondent V. B. Ging was a teacher in the Central High School of Duluth; respondent Elizabeth Bunting a primary teacher in Lester Park School of that city. Each had acquired a permanent status under the teachers tenure act. Minn.St.1941, §§ 130.22 to 130.32, Mason St.1927, §§ 2935-1 to 2935-13. On August 30, 1941, each was notified of suspension from duty and served with a notice of hearing before the board of education on charges preferred by the superintendent of schools that "on account of lack of pupils and reduction in enrollment of pupils in the schools of said School District, the position of * * * [respondent], a teacher of said School District, has necessarily been discontinued and there is no position in said School District to which said teacher * * * [respondent], can be assigned." The hearings on the two charges were consolidated by consent. On September 23, 1941, separate decisions by the board were filed that "the position of * * * [respondent] as a teacher of The Independent School District of the City of Duluth has been and the same hereby is discontinued on account of lack of pupils in the schools of said district and that said [respondent] be and (s)he hereby is discharged as a teacher of said district."

In each case a writ of certiorari was granted by the district court, where the cases were again consolidated, and, as was proper, presented to that court on the record of the proceedings before the board. The lower court, by separate orders dated January 29, 1942, made findings of fact and conclusions of law based on the record submitted to it for review and directed judgment to be entered. Included in the findings in each case is one numbered 6 (c): "That no ground was established before said Board for said discharge." Included in the conclusions of law is the following: "That the decision of said Board of Education of the City of Duluth above mentioned and herewith reviewed should be, and it is, set aside and vacated." (Italics supplied.)

No judgment was entered in either case. The appeals are from the "Findings of fact, conclusions of law and order for judgment."

1-2. Though respondents do not raise it, we are confronted with the question of the appealability of the lower court's order, which is in the form of ordinary findings and order for judgment in civil cases, from which no appeal lies. 1 Dunnell, Dig. & Supplements, § 295, note 72.

At common law the proper form of judgment in certiorari proceedings was either that the proceedings below be quashed or that they be affirmed. Harris, The Law of Certiorari, p. 33, § 38; 1 Bailey, Habeas Corpus and Special Remedies, p. 746, § 189; 11 C.J. p. 209, § 376; 14 C.J.S., Certiorari, p. 319, § 174. Under our practice, certiorari is not the common-law writ, but rather a writ in the nature of certiorari, and the entry of a formal judgment of affirmance or reversal is neither contemplated nor authorized. Minn.St.1941, p. 3622, c. 606, Mason St.1927, §§ 9769-9773; Johnson v. City of Minneapolis, 209 Minn. 67, 295 N.W. 406.

The order of the lower court here was "a final order, affecting a substantial right, made in a special proceeding," and therefore appealable under Minn.St.1941, § 605.09, Mason St.1927, § 9498 for it effectively and finally disposed of the proceedings of the tribunal below by ordering that the decision of the school board under review "should be, and it is, set aside and vacated." The direction to enter judgment was surplusage. Johnson v. City of Minneapolis, supra; McNamara v. Minnesota Central Ry. Co., 12 Minn. 388, 12 Gil. 269; In re Estate of Bridgham, 158 Minn 467, 197 N.W. 847; In re Trusteeship Under Will of Rosenfeldt, 184 Minn. 303, 238 N.W. 687. The issues presented are therefore properly here by appeal. Neumann v. Edwards, 146 Minn. 179, 178 N.W. 589; 1 Dunnell, Dig. & Supplements, § 294; 14 C.J.S., Certiorari, p. 329, § 186a.

Facts in Ging Case.

Virgil B. Ging entered the Duluth school system in 1909 and taught at its Central High School continuously thereafter until suspended in 1941. He was then 66 years of age. He taught mathematics for the first few years, but at all times thereafter his teaching was in the field of social science, particularly history and sociology. For years he had been, and at the time of his discharge was, the head of the social science department of Central High School, and as such he received extra compensation of $74 a year. For 25 years he had taught history in Room 100 of that school. He was teaching social science subjects when the tenure act was enacted and had been during his entire three-year probationary period, and he continued to teach such subjects exclusively thereafter. He had taught English, but this was before he entered the Duluth system. By the contract under which he attained tenure, he was hired as a teacher of social science; and, until the hearing before the school board, he never claimed that he was qualified to teach any other subjects nor had he asked for an assignment in any other field.

The necessity for reducing the teaching staff arose through a substantial drop in enrollment, not only in the elementary schools but in the secondary schools, including junior and senior high schools. The decrease in school enrollment in senior and junior high schools combined, from the fall of 1940 to the fall of 1941, was 857, while the accompanying decline in the class enrollment was 2,642. However, the average size of classes was reduced, with the net result that the number of classes in the two divisions actually increased from 1,276 in 1940 to 1,282 in 1941. On the basis of one teacher to five classes, this meant one additional teaching position in the two high schools.

During the most recent years, there had been a trend away from academic subjects to vocational and commercial training; and in the case of languages, from French, Latin, and German to Spanish and Norwegian. The school had on its staff a large number of nontenure teachers working in specialized fields in which no tenure teachers had qualified. Among these specialized fields were the Smith-Hughes trades, band, music, physical education, and teaching of subnormal children.

In social science subjects, the enrollment at the beginning of the 1940 school year in the senior high schools was 3,423, and in the junior high schools 2,831. The following year the enrollment in these subjects in the senior high schools had dropped to 3,284, and in the junior high schools to 2,564. The total drop in secondary schools was from 6,254 to 5,848. Over the same period, notwithstanding the drop in general enrollment, there had been an increase of five enrollments in home training, 54 in industrial arts, and a drop of only 17 in commercial classes.

There was also a reduction from 1940 to 1941 in the average high school class size of about two pupils per class, so that the number of classes was not decreased in proportion to the reduction in enrollment. The size of the classes in the Duluth schools is low compared with the size in other cities throughout the country. It was estimated that 15 classes at the senior high school could have been eliminated without having a single class with more than 36 pupils. However, this number of classes was not in fact eliminated.

In the 1940-1941 school year there were more tenure teachers available than could properly be assigned to a reasonable ratio of the number of pupils per teacher. At the opening of the 1941-1942 school year the board was faced with a further reduction in the school population and an enrollment drop of 624 pupils, which, on the average of 30 pupils per teacher, would mean a drop of 21 teachers.

The reduction in the total enrollment and the trend away from classes in the academic department made necessary a reduction in the staff of teachers. Throughout the 1940-1941 school year, the superintendent of schools, with the knowledge and approval of the board, sought to bring about the necessary reduction by voluntary retirement of teachers and by liberalizing the rules under which leaves of absence were granted, but without success.

The matter was referred to a committee of the board, which made a report on July 16, 1940, recommending that "contracts for all junior and senior high school teachers who will have attained the age of 62 before the opening of the school year 1940-41 be withheld pending the assignment of all other teachers." The report was adopted by the board.

On July 19, 1940, the superintendent sent out a special bulletin to all teachers calling attention to the necessity of reducing the staff and the proposed policy whereby it was hoped that this could be accomplished. In a special letter to respondent Ging, the superintendent also called attention to the fact that respondent's pension under the retirement plan would be $1,378.80 a year.

Following this and other correspondence, Ging met with the board on August 29, 1940, and stated that he would be willing to retire if he could serve one more year, with which understanding he was reelected for another year and so advised on September 9, 1940. However, in the spring of the...