Ward v. Board of Regents of Kansas State Agricultural College

• Decision Date: 23 May 1905
• Docket Number: 2,047.
• Citation: 138 F. 372
• Parties: WARD v. BOARD OF REGENTS OF KANSAS STATE AGRICULTURAL COLLEGE.
• Court: U.S. Court of Appeals — Eighth Circuit

138 F. 372

WARD v. BOARD OF REGENTS OF KANSAS STATE AGRICULTURAL COLLEGE.

No. 2,047.

United States Court of Appeals, Eighth Circuit.

May 23, 1905

George E. Stoker, for plaintiff in error.

R. J Brock, N. H. Loomis, R. W. Blair, and H. A. Scandrett, for defendant in error.

Before SANBORN and HOOK, Circuit Judges, and AMIDON, District Judge.

AMIDON District Judge.

In the summer of 1898 the defendant employed the plaintiff as professor of English language and literature for the college year commencing September 1, 1898, and ending June 30, 1899 at a salary of $1,450 per year. At the time of his engagement plaintiff was a resident of New Hampshire. He immediately removed to Kansas with his family, and entered upon the duties of his professorship, and continued to discharge the same until the end of the contract. On the 1st of April 1899, a change was to occur in the board of regents of the college by the retirement of three of its members through the expiration of their term and the appointment of others in their stead. Fourteen days before this change occurred namely, March 18, 1899, and while plaintiff's original employment still had several months to run, the board entered into a new contract with him, in writing, whereby he was employed in the same professorship from that date for nearly two and a half years-- that is, until the close of the school year ending June 30, 1901-- at a salary of $1,450 per annum, payable in equal monthly installments. On June 10, 1899, after the new members had been admitted, the board, by resolution, revoked and canceled said contract, specifying that the best interests of the college required such action. Having waited for the expiration of the term of his employment, the plaintiff brings this suit to recover damages which he claims to have suffered by reason of the violation of his contract, and for other damages which he claims to have suffered in his profession on account of the wrongful discharge. The defendant interposed a demurrer to this complaint upon the ground that it did not state facts sufficient to constitute a cause of action, which was sustained by the trial court. This ruling is the only matter brought under review by the present writ of error.

The action by the trial court is justified upon three grounds: (1) It is contended that because the board of regents is simply a governing body, without property or the power of taxation, and receives all its funds by legislative appropriation, it cannot be sued unless a fund has been placed in its hands to meet the claim upon which the action is based (which is not alleged in the present complaint), and that in the absence of such a fund the plaintiff's only legal redress is by petition to the state Legislature. (2) That the contract with the plaintiff was for an unreasonable period, and therefore void. (3) If the contract was valid, still the statute which grants to the board of regents the right to 'remove any professor or teacher whenever the interests of the college shall require' vests in the board an absolute right to make such removal, and no action can grow out of the exercise of that right.

The statute of Kansas establishing the Agricultural College vests the government of that institution in a board of regents, which by the act is constituted a body corporate, with the right, as such, to sue and be sued and to use a common seal. It is given power, among other things, 'to elect a president; to fix, increase, and diminish the regular number of professors and teachers; and to appoint the same and determine the amount of their salaries. They shall have power to remove the president and any professor or teacher whenever the interests of the college shall require.'

The first contention of defendant finds its complete answer in this statute. The board is given full control of the Agricultural College. It may enter into contracts not only for the employment of the faculty, but also for maintaining the institution and for erecting such buildings as may be necessary from time to time. It is expressly given the power to sue and be sued in respect to any of these matters. When a judgment is recovered against the board, it may lawfully apply to its discharge any funds in its hands not otherwise specifically appropriated, and, in case no fund exists for the purpose, it will be presumed that the Legislature will discharge its duty by providing a fund to meet any liability of the board that is thus judicially established.

No sound reason is advanced to support the contention that the contract was void because of an unreasonable period. The statute establishing the board imposes no limit upon the term for which the various members of the college faculty may be employed. Such an occasion calls for the exercise of a sound discretion rather than the application of any hard and fast rule. What would be a reasonable term in one case would be unreasonable in another. An engagement such as is usual in other like educational institutions would be necessary in order to obtain the services of competent and self-respecting scholars. Such a contract, though subject to revocation, affords a professor a moral right, which is the only tenure that can be of practical benefit in such a relationship. These considerations have received the express approval of the Supreme Court of Kansas in the case of Board of Regents v. Mudge, 21 Kan. 223. Though the statute imposes no express limitation, it is sought to raise a limitation by implication from the fact that the membership of the board of regents is changed from year to year by the retirement of a portion of its members and the appointment of others to fill the vacancy, and it is urged that the new board ought not to be hampered by the contracts of the old. This fact does not seem to us to justify such an implication. The weight of authority is clearly against such a holding. Caldwell v. School District No. 7 (C.C.) 55 F. 372; Gates v. School District, 53 Ark. 468, 14 S.W. 656, 10 L.R.A. 186; Reubelt v. Noblesville School Town, 106 Ind. 480, 7 N.E. 206; Tappan v. Carrollton School District, 44 Mich. 500, 7 N.W. 73. The Legislature has granted the power in unrestricted terms. It is the proper department to determine whether a sound public policy requires the power to be restricted or not. It would be an exceptional case indeed in which the courts would be justified in raising a limitation solely out of considerations of public policy when the Legislature has seen fit to grant an unlimited power. Furthermore, as many considerations of public policy can be brought forward to justify a grant of unlimited power as can be adduced in favor of the limitation for which defendant contends. Gates v. School District, 53 Ark. 468, 14 S.W. 656, 10 L.R.A. 186. There are decisions in Illinois which hold that in the case of teachers in the common schools the local boards have not authority to contract beyond the year for which they are elected. These decisions rest mainly upon peculiar statutory provisions. They also find support in the fact that the management of public schools has always been from term to term. The reason which would justify such a limitation in their case has no application to a great educational institution like the Agricultural College of Kansas, whose administration should be controlled by a permanent and settled policy.

The principal question presented by this writ of error is whether the present case is ruled by the decision of the Supreme Court of Kansas in Board of Regents v. Mudge, 21 Kan. 223, above referred to. The defendant there was the same as in the present case. The statute fixing the powers and duties of the board of regents then was the same as now. Prof. Mudge was employed as professor of geology and related sciences, but no formal contract was entered into. His salary, however, was fixed at $1,600 per annum, and the professor was given a house, rent free. From these facts and the nature of the service an implied contract would be raised that the employment was for a term of one year. Kellogg v. Citizens' Insurance Co., 94 Wis. 558, 69 N.W 362. No doubt can exist that unless the statute authorized the board to discharge the professor during the term of the contract he would have been entitled to recover the full year's salary in case no facts existed justifying the discharge. He, however, did not sue upon the contract. The board of regents, pursuant to a power vested in it to enact ordinances, by-laws, and regulations for the government of the college, had passed a resolution 'that each professor should give and receive three months' notice of resignation or discharge, except in case of gross misconduct. ' This resolution was in force when Prof. Mudge was employed and discharged. He was discharged without notice and upon the avowed ground of gross misconduct. Now, the matter of primary importance to be noticed is that Prof. Mudge did not sue upon his contract of employment to recover his salary for the unexpired portion of the year, but based his action upon the resolution, and asked to recover only for the three months period therein mentioned. The Mudge Case can be explained upon the ground that the statute giving the power to remove a professor whenever the interests of the college require is not incompatible with a regulation made pursuant to another section of the same statute, that a professor should be entitled to three months' notice of removal except in case of gross misconduct. It was decided by the court that, while such a regulation was in force, a discharge without notice, in the absence of misconduct, would render the board liable for the professor's salary for the period covered by the regulation. That was the only question before the court, and the language of the...