Whittington v. Barbour County Bd. of Ed., 4 Div. 496.

• Decision Date: 10 June 1948
• Docket Number: 4 Div. 496.
• Citation: 36 So.2d 83,250 Ala. 692
• Parties: WHITTINGTON v. BARBOUR COUNTY BOARD OF EDUCATION.
• Court: Alabama Supreme Court

36 So.2d 83

250 Ala. 692

WHITTINGTON v. BARBOUR COUNTY BOARD OF EDUCATION.

4 Div. 496.

Supreme Court of Alabama

June 10, 1948

E. W. Norton, of Clayton, and Richard T. Rives, of Montgomery, for appellant.

A A. Carmichael, Atty. Gen., and Silas C. Garrett, III, Asst Atty. Gen., for appellee.

LIVINGSTON Justice.

This appeal is from an order or decree of the Circuit Court of Barbour County, sustaining a demurrer to the petition of Mary Neil Whittington for the writ of mandamus seeking a review of the action of the Board of Education of Barbour County in terminating her employment, or cancellation of her employment contract, as a teacher in the Barbour County school system.

In substance the petition for mandamus shows the following: The appellant is a teacher, as that term is employed in the Teacher Tenure Law of this State, and was employed in the Barbour County school system for the school years 1944-1945 1945-1946 and 1946-1947. At the time the Board of Education took the first step which gave rise to this proceeding (April 29, 1947), she was then in the course of completing her third school year as a teacher in the Barbour County school system, and which school year ended on May 22, 1947. On April 29, 1947, the Board of Education gave Mrs. Whittington the following notice:

'Barbour County Schools

'Office of the Superintendent

'Clayton, Alabama

'April 29, 1947.

'Mrs. Mary Neil Whittington,

'Clayton, Alabama.

'Dear Mrs. Whittington:

'At a meeting of the County Board of Education this morning, I was instructed to notify you that the Board of Education will meet May 30, 1947, in the office of the County Superintendent of Education in Clayton, and on the date and at the place will consider at the hour of 10:00 A. M., the cancellation of your contract of employment.

'This notice is given in compliance with the provisions of the teacher tenure law.

'Very truly yours,

'P. A. McDaniel

'County Superintendent of Education and Executive Secretary of the Barbour County Board of Education.'

On May 5, 1947, Mrs. Whittington requested, in writing, that she be furnished with a written statement of the reasons for the consideration of the cancellation of her employment contract. On May 6, 1947, her request was complied with, and the following reasons assigned:

'1. Difficulty with discipline.

'2. Ineffective work done by pupils, probably due to lack of discipline.

'3. Dissatisfaction expressed by parents as a result of points being taken from grades as punishment.

'4. Inability to fit into the system perhaps as a result of local sentiment.

'5. Failure to cooperate with and a resentment attitude toward the administration.'

On May 9, 1947, Mrs. Whittington requested in writing a hearing of the charges against her, and, on May 10, 1947, she was notified that said hearing would be held on May 19, 1947. On May 19, 1947, by agreement of the parties, the hearing was continued until May 23, 1947. The hearing was conducted on May 23, 1947, and on May 30, 1947, the Board of Education by unanimous vote of the members thereof, evidence by the minute proceedings of the board, ordered the cancellation of Mrs. Whittington's employment contract, and she was so notified on that date.

The petition for writ of mandamus further alleges that, on May 23, 1947, before the taking of testimony, Mrs. Whittington objected to the board's hearing or considering the charges against her, or to further proceeding in the matter on the ground that section 357, Title 52, Code, had not been complied with. The objection was overruled, and the hearing proceeded with the results above indicated.

Section 352, Title 52, Code, reads:

'Any teacher in the public schools, who shall meet the following requirements, shall attain continuing service status: (a) Such teacher shall have served under contract as a teacher in the same county or city school system for three consecutive years and shall thereafter be re-employed in such county or city school system. (b) Such continuing service status can be conferred only by the re-employment of such teacher for the school year beginning in the fall of 1940, or for some subsequent school year.'

Section 353, Title 52, Code, reads:

'The contract of employment of any teacher who shall attain continuing service status shall remain in full force and effect unless superseded by a new contract signed by both parties, or cancelled as provided in section 357 or section 358 of this title; provided that the legislature, or in the absence of legislation, the employing board of education may provide for the retirement of teachers at certain ages.'

Section 357, Title 52, Code, provides:

'An employment contract with a teacher on continuing service status may be cancelled only in the following manner: Not less than thirty, nor more than forty days before the consideration by the employing board of education, of the cancellation of any such contract, such teacher shall be notified in writing of the exact date, time when, and place where such consideration is to take place; and such teacher shall be furnished with a written statement of the reasons for such consideration within five days after any written request for such...