Still v. Lance

• Decision Date: 30 July 1971
• Docket Number: No. 105,105
• Citation: 279 N.C. 254,182 S.E.2d 403
• Parties: , 120 L.R.R.M. (BNA) 2086 Mrs. Lucy STILL v. Dale LANCE et al.
• Court: North Carolina Supreme Court

Page 403

182 S.E.2d 403

279 N.C. 254, 120 L.R.R.M. (BNA) 2086

Mrs. Lucy STILL v. Dale LANCE et al.

No. 105.

Supreme Court of North Carolina.

July 30, 1971.

Smith, Moore, Smith, Schell & Hunter by McNeill Smith and Martin N. Erwin, Greensboro, McGuire, Baley & Wood by J. M. Baley, Jr., and Hendon & Carson by Philip G. Carson, Asheville, for plaintiff.

Van Winkle, Buck, Wall, Starnes & Hyde by Herbert L. Hyde, Asheville, for defendants.

LAKE, Justice.

The contract between the plaintiff and the County Board of Education, dated 26 May 1967, was executed in accordance with and in the form required by G.S. § 115--142. It expressly incorporates within itself the provisions of the school law, including this statute. Upon its face, it contains no provision concerning the duration of the employment or the means by which it may be terminated. Nothing else appearing, such a contract of employment, even though it expressly refers to the employment as 'a regular, permanent job,' is terminable at the will of either party irrespective of the quality of performance by the other party. Tuttle v. Kernersville Lumber Co., 263 N.C. 216, 139 S.E.2d 249; Wilkinson v. Erwin Mills, 250 N.C. 370, 108 S.E.2d 673; Long v. Gilliam, 244 N.C. 548, 94 S.E.2d 585; Howell v. Commercial Credit Corp., 238 N.C. 442, 78 S.E.2d 146; Malever v. Kay Jewelry Co., 223 N.C. 148, 25 S.E.2d 436; May v. Tidewater Power Co., 216 N.C. 439, 5 S.E.2d 308; Elmore v. Atlantic Coast Line R.R., 191 N.C. 182, 131 S.E. 633; 43 A.L.R. 1072; Currier v. M. Ritter Lumber Co., 150 N.C. 694, 64 S.E. 763.

Where, however, there is a business usage, or other circumstance, appearing on the record, or of which the court may take judicial notice, which shows that, at the time the parties contracted, they intended the employment to continue through a fixed term, the contract cannot be terminated at an earlier period except for cause or by mutual consent. See: Malever v. Kay Jewelry Co., supra; 53 Am.Jur.2d, Master and Servant, § 27; Annot., 161 A.L.R. 706, 713. The nature of school operations is such that, in the absence of evidence of a contrary intent, a contract for the employment of a school teacher is presumed to be intended by the parties to continue to the end of the school year and not to be terminable by either party prior to that time without cause and without the consent of the other party. G.S. § 115--145, incorporated by reference into the contract before us, states the causes for which a teacher may be dismissed prior to the expiration of the school year for which he or she has been employed and prescribes the procedure, including notice and hearing, to be followed in order so to dismiss a teacher. It is not contended that this statute has application to the present controversy.

The question before us relates solely to the right of the County Board of Education, having entered into a contract of employment with a teacher, to terminate the employment at the end of a school year. G.S. § 115--142(b), incorporated into and made a part of the contract, on which the plaintiff relies, as completely as if set forth verbatim therein, provides:

'All contracts now or hereafter entered into between a county or city board of education and a teacher, principal, or other professional employee shall continue from year to year Unless terminated as hereinafter set forth. When it shall have been determined by a county or city board of education that an employee is not to be retained for the next succeeding school year it shall be the duty of the county or city superintendent to notify the employee, by registered letter deposited in mails addressed to last known address or business address of employee prior to the close of the school year, of the termination of his contract. When it shall have been determined that the services of an employee are not acceptable for the remainder of a current school year, and that the employee should be dismissed and relieved of his position immediately, the provisions and procedures of G.S. 115--67 and G.S. 115--145 shall be applicable.' (Emphasis added.)

It is stipulated that the Board of Education in the present instance followed precisely the procedure prescribed in this statute. It is quite clear that this statute, and so the contract entered into by the plaintiff and upon which she relies, prescribes a procedure for terminating the employment of a teacher at the end of a school year entirely different from the procedure prescribed for the dismissal of a teacher during the school year. The statute, and so the contract before us, does not limit the right of the employer board to terminate the employment of a teacher at the end of a school year to a specified cause or circumstance. It does not, in such case, require the board to file charges against the teacher, to notify the teacher of the reason for which the board contemplates the termination of the employment or to permit the teacher to appear before the board and be heard. The statute, and so the contract on which the plaintiff relies, expressly points to the difference between the procedures for dismissal during the school year and for termination of the employment at the end of the school year. Quite obviously, therefore, the failure to provide in this statute for the filing of charges, the statement of the reasons for the board's decision and the granting to the teacher of an opportunity to be heard was not an oversight. Consequently, G.S. § 115--142(b), and so the contract upon which the plaintiff relies, can only be interpreted so as to authorize the County Board of Education to terminate the plaintiff's employment in the schools of Buncombe County as it has done.

G.S. § 115--34, relied upon by the plaintiff in her brief, has no application to this case. The first part of that statute provides for an appeal from decisions of school personnel to the county or city board of education. The decision of which the plaintiff complains is the decision of the County Board of Education. The remainder of G.S. § 115--34 provides for an appeal from a decision of a county or city board of education to the Superior Court when the action of the Board of Education is one 'affecting one's character or right to teach.' The decision of the defendant board to terminate the employment of the plaintiff does not affect her character, nor does it deprive her of the right to teach elsewhere. See, Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230. Furthermore, the record does not indicate any attempt by the plaintiff to appeal to the Superior Court from the decision of the County Board of Education as distinguished from her present action brought in that court.

There remains for consideration the contention of the plaintiff that G.S. § 115--142(b), so construed, is in excess of the authority of the General Assembly because it is a violation of a provision of the Constitution of North Carolina or a provision of the Constitution of the United States, as asserted by the plaintiff in the court below and in this Court. The plaintiff asserts that the statute is invalid and, consequently, her contract, which expressly incorporates and makes a part of it the language of the statute, does not given to the Board of Education the right so to terminate her employment at the end of the school year.

Prior to the issuance of teacher contracts for the 1967--1968 school term; that is, prior to the making of the contract upon which the plaintiff here relies, the plaintiff was employed by the County Board of Education for three successive school years. In each of those school years, her employment was under a contract which was for one school year only. G.S. § 115--142 then so provided. In 1967, the General Assembly amended the statute to provide that contracts for the employment of teachers,...