Stone v. Fritts

• Citation: 82 N.E. 792,169 Ind. 361
• Decision Date: 26 November 1907
• Docket Number: No. 20,962.,20,962.
• Parties: STONE, County Superintendent, v. FRITTS.
• Court: Supreme Court of Indiana

169 Ind. 361

82 N.E. 792

STONE, County Superintendent,

v.FRITTS.

No. 20,962.

Supreme Court of Indiana.

Nov. 26, 1907.

Appeal from Circuit Court, Owen County; Joseph W. Williams, Judge.

Action by Harry Fritts against William H. Stone, county superintendent. From a judgment for plaintiff, defendant appeals. Reversed, with directions.Willis Hickam, for appellant. O. Matthews, for appellees.

MONTGOMERY, J.

Appellee brought this action to enjoin appellant as county superintendent from revoking his license to teach school. It appears from the complaint: That appellee is a school teacher of 20 years' experience, and that on October 16, 1905, while engaged in teaching in Owen county, appellant prepared and filed against him as such teacher the following charge and specifications, to wit: “(1) You have refused without good reason to board in your school community. On this account, you are unable to reach your school so as to begin daily school sessions at a reasonable time. (2) You have refused without reason to attend the preliminary township institute, and the monthly township institute. (3) You have refused without reason to give regular attendance at the teachers' county institute. (4) You do not make daily preparation necessary for successful teaching.” That appellee appeared in response to notice, and such proceedings were had as resulted in the dismissal of such charge, and, on completion of his school term, appellant issued to him a success grade of 92 per cent. as a teacher. That afterwards appellee secured from the state superintendent a license to teach for 24 months from the 28th day of April, 1906, and on July 5th following appellant notified appellee to appear at his office and make answer to the above charge, and show cause, if any, why his license to teach should not be revoked, and in response thereto appellee appeared in person and by counsel, and caused the hearing to be postponed until July 10th. Appellee further avers that neither of said charges constitutes a cause for the revocation of such license; that appellant has no right or authority to hear and determine the same; that conceding the sufficiency of such charge appellant has no power to hear and determine the same over the objection of appellee; that section 9 of the act of March 3, 1899 (Acts 1899, p. 245, c. 143), is unconstitutional; that the charges are untrue and false, and appellant is not an impartial magistrate, and will upon such charge revoke appellee's license to his irreparable damage. The court below overruled appellant's demurrer to the complaint, and the assignment that this ruling was erroneous presents the disputed questions for our decision.

The statute upon which this proceeding was founded reads as follows: “That the county superintendent shall (have) the power to revoke licenses heretofore granted by himself or predecessors or hereafter granted by the state superintendent of public instruction, for incompetency, immorality, cruelty or general neglect, by the holder, of the business of his school. Due notice of such revocations shall be given in writing by the county superintendent, and an appeal therefrom shall lie to the state superintendent of public instruction, and if the same be taken within five days after notice is given it shall operate as a stay of proceedings until the state superintendent of public instruction shall have passed upon such appeal. The revocation of the license of any teacher shall terminate his employment in the school in which he may have been employed to teach.” Burns' Ann. St. 1901, § 5905f. It is contended on behalf of appellee that this section of the law contravenes section 12 of article 1 of the state Constitution, which provides “that the courts shall be open; and every man for injury done to him in person, property or reputation, shall have remedy by due course of law”; and also violates section 21 of article 1, which provides that “no man's particular services, nor his property shall be taken by law without just compensation”; and violates the provisions of article 3 of the Constitution by conferring judicial power upon a ministerial officer. This complaint can be held sufficient only upon the ground that the law in question is unconstitutional, or that the proceeding assailed was wholly void for want of jurisdiction over the subject-matter or the person of appellee.

The constitutional questions suggested are not of a serious character. It must be remembered that the establishment and regulation of public schools rests primarily with the legislative department, and the constitutional provisions invoked by appellee were not designed to trammel the state in the exercise of its general political powers, or to impose upon the courts the duty of interposing between the Legislature and the citizen in matters of pure governmental concern. The Legislature, in the proper exercise of its power, has provided a general system of licenses for those who desire to engage in teaching, and has authorized the revocation of any such license by county superintendents for certain prescribed causes. A license has none of the elements of a contract, and does not confer an absolute right, but only a personal privilege to be exercised under existing restrictions, and such as may thereafter be reasonably imposed. Statutes authorizing the issuance of such licenses are enacted to promote the good order and welfare of the state, and may ordinarily be repealed at the pleasure of the Legislature. Calder v. Kurby, 5 Gray (Mass.) 597;Freleigh v. State, 8 Mo. 606; People v. New York Tax, etc., Com'rs, 47 N. Y. 501;State v. Burgoyne, 75 Tenn. 173, 40 Am. Rep. 60.

In the case of Doyle v. Continental Ins. Co., 94 U. S. 535, 540, 24 L. Ed. 148, the Supreme Court of the United States, in speaking of licenses, said: “The correlative power to revoke or recall a permission is a necessary consequence of the main power. A mere license by the state is always revocable.” The statute authorizing the granting of a license may provide for its revocation in certain contingencies, and, by accepting and acting under a license, the licensee consents to all conditions imposed thereby, including provisions for its revocation. 21 Am. & Eng. Ency. of Law, 826. In the case of Commonwealth v. Kinsley, 133 Mass. 578, the Supreme Court of Massachusetts said: “A licensee takes his license subject to such conditions as the Legislature sees fit to impose, and one of the statutory conditions of this license was that it might be revoked by the selectmen at their pleasure. Such a license is not a contract, and a revocation of it does not deprive the defendant of any property, immunity, or privilege within the meaning of these words in the Declaration of Rights.” The Supreme Court of Illinois, in discussing the proprietary interest of an individual in a license to retail intoxicating liquors, said: “He received the license on the condition that it might be revoked if he should sell liquor on Sunday, and he thereby assented to the terms and conditions.” Schwuchow v. City of Chicago, 68 Ill. 444, 450.

It is our conclusion that the act in question does not assume to, and does not, deny appellee access to the courts for any injury done to him in his person, property, or reputation, within the meaning of section 12, art. 1, of the state Constitution. The enforcement of regulations enacted in the proper exercise of the police power of the state cannot be resisted as a taking of private property without compensation in violation of section 21,...