Moses v. School Dist. No. 53, Lincoln County , 107 Mont. 300 ( 1938 )

Under certain conditions the board of school trustees has the right to close a class, a department or a school notwithstanding that right is apparently limited by statute or by the Constitution. (Funston v. District School Board, 130 Or. 82,278 P. 1075, 63 A.L.R. 1410; Bates v. Board of Education,139 Cal. 145, 72 P. 907.) Classes may be closed and a teacher's services discontinued if there is not sufficient attendance to warrant their continuance. A sufficient number of pupils to warrant holding school is the test of lack of attendance, not no attendance. Two pupils are not sufficient. (Funston v.District School Board, supra.) The contingency of lack of attendance is expressly covered by the contracts in this case, and plaintiff Moses is bound by them. (School Town of Carthage v. Gray,10 Ind. App. 428, 37 N.E. 1059.)

The usage or custom in the school district of electing a teacher and reserving the right to close the school for lack of attendance and thereby discontinuing the services of the teacher was known to and acquiesced in by plaintiff for three years, and she thereby waived or limited certain of her rights under section 1075. Such usage became a part of her contract which is implied under her deemed reelection as provided in section 1075. (Simms v. Sullivan, 100 Or. 487, 198 P. 240, 15 A.L.R. 678;McCulsky v. Klosterman, 20 Or. 108, 25 P. 366, 10 L.R.A. 785; 17 C.J. 492-495.)

The usage and the contract provision covering lack of attendance, which are parts of plaintiff's contract under her deemed reelection, must be construed together with section 1075, the same as in a Missouri case where two apparently conflicting statutes were construed together. (DeHart v. School District,214 Mo. App. 651, 263 S.W. 242.) There were two statutes, (1) providing that a school could be closed when the attendance fell under 15 pupils; (2) that limited the right of school directors to dismiss the teacher without her consent — the court held the two statutes should be construed together as giving the directors the power to dismiss the teacher and suspend school where the average daily attendance for the first two months of the term was one pupil. (See, also, McBride v. School District, 88 Mont. 110,290 P. 252.)

The facts alleged in defendant's second defense clearly show the acts of plaintiff with reference to the right of defendant to close her school, and her acquiescence in and acknowledgment of that right, and that the defendant relied upon them, as showing her consent to that right and that she intended her acts should be so relied upon. It seems too plain for argument that defendant has been misled by plaintiff and will now be prejudiced if she is now permitted to recover in this action. We think the defendant is within the rule of estoppel stated in Lindblom v.Employers' etc. Assur. Corp., 88 Mont. 488, 295 P. 1007.

"The public schools were not created, nor are they supported, for the benefit of the teacher, as implied by the contention of the appellant, but for the benefit of the pupils and the resulting benefit to their parents and the community at large"; hence even where the Political Code and Charter of the City and County of San Francisco limited the powers of the board of education as to the dismissal of teachers holding a city or county certificate to certain enumerated reasons, it was held that this did not prevent the board, in the interest of economy, from consolidating classes and dismissing teachers who were no longer needed. (Bates v. Board of Education, supra.) If the holding and reasoning in the Bates Case is not good, then the school district has lost control of its own schools, and must continue to pay a teacher who gets her reelection under section 1075 even though it develops later there are no pupils to teach. Plaintiff brought this action to recover from defendant the sum of $360 alleged to be due under a contract for teaching. The court entered judgment on the pleadings in favor of plaintiff, and defendant appealed. The propriety of the judgment therefore depends upon the issues presented by the pleadings.

The complaint avers that plaintiff was employed by defendant school district and taught for the three consecutive years of 1934, 1935 and 1936, the first two years in the school located at Stryker, and the third year in the school located at Trego; that the board of trustees did not give the notice provided for in section 1075, Revised Codes, and, hence, that she was automatically reelected to teach for the year 1937; that during the month of August, 1937, defendant notified plaintiff that the school would not be opened and that her services would not be required; that plaintiff stood ready to perform the services in accordance with the terms and conditions of her reelection.

Defendant's answer admits plaintiff's employment for three consecutive years, but alleges that the last of the three years she was employed to teach school in the school located on Edna Creek and known as the Edna Creek School; admits that plaintiff was not notified prior to May 1, 1937, that her services would not be required for the ensuing year. It alleges that there are three schools in the district, one at Trego, one at Stryker, and one at Edna Creek; that each is about ten miles distant from the other; that the average attendance at Trego for the three years of 1934, 1935 and 1936 was about thirteen pupils, at Stryker about six, and at Edna Creek six; that there were only two pupils eligible to attend the Edna Creek School beginning in September, 1937; that this fact was not known by the school trustees before May 1 because of the transient character of the settlers in that locality who consisted of tie makers and other workers in the woods; that the practice and custom followed by the trustees was to reemploy the teacher in April of each year for the Edna Creek School under the same terms and conditions of her contract for the preceding year and with the understanding that the reemployment was upon the condition that there would be a sufficient number of pupils to attend the school to warrant the holding of school, and upon the understanding that if there were not a sufficient number of pupils to attend the school the trustees would close the school and transport the pupils to another school, in which case the contract of reemployment would be void; that plaintiff was aware of this custom and acquiesced therein; that pursuant to this custom the trustees in April, 1937, reemployed plaintiff for the ensuing school year under those terms and conditions; that at a meeting held on June 25 the board by resolution closed the Edna Creek School and the Stryker School and arranged for the transportation of the Edna Creek pupils to Trego, and the Stryker pupils to Eureka; that this was done because of the lack of pupils, there being only two to attend the Edna Creek School, and two or three to attend the Stryker School, and that of this plaintiff was duly notified.

As an affirmative defense the answer alleges that each of the written contracts of employment of plaintiff contained this paragraph: "It is mutually understood and agreed, that whenever the school shall be closed by order of the trustees on account of the prevalence of contagious or epidemic disease, or from any cause, or lack of attendance, the salary of said first party as teacher shall stop and this contract shall be void." It is alleged that if plaintiff is by virtue of section 1075 deemed reemployed, the contract of reemployment must be on the same terms and conditions as the previous employment, and that plaintiff is estopped from contending otherwise.

Plaintiff by reply admits that she was employed for two years at the Stryker School and one year at the Edna Creek School, and that the contracts of employment contained the clause above quoted. She admits that the school board arranged for the transportation of the Edna Creek and Stryker School pupils as alleged in the answer, and denies the other allegations.

The motion for judgment on the pleadings was upon the ground that the allegations of the complaint are admitted by the answer, and that the defenses pleaded do not constitute a defense.

Under section 1044, Revised Codes, the board of trustees of a[1-5] rural school district has authority to close schools with an enrollment of fewer than five pupils if they can, in the judgment of the board, be cared for more economically and in a satisfactory manner in another school. Section 1010 also confers this same right upon the trustees when they shall deem it for the best interests of all pupils residing in the district to do so. Plaintiff here specifically contracted that the board should have that right and, in the event that the board exercised that right, her contract of employment would be void.

Section 1075 provides: "After the election of any teacher or principal for the third consecutive year in any school district in the state, such teacher or principal so elected shall be deemed re-elected from year to year thereafter at the same salary unless the board of trustees shall by majority vote of its members on or before the first day of May give notice in writing to said teacher or principal that he has been re-elected or that his services will not be required for the ensuing year; provided that nothing in this Act shall be construed to prevent re-election of such teacher or principal by such board at an earlier date, and also provided that in case of re-election of such teacher or principal, he shall notify the board of trustees in writing within twenty days after the notice of such re-election of his acceptance of the position tendered him for another year and failure to so notify the board of trustees shall be regarded as conclusive evidence of his non-acceptance of the position."

The reelection under section 1075 means reemployment under the same terms and conditions as the preceding year's employment. If this were not so, then it is impossible to know what the terms of employment would be, except as to salary. One of the terms of the preceding year's employment was that the board reserved the right to close the school for lack of attendance, which, when done, would make void the contract of employment. Sections 1044 and 1075 must be read together (DeHart v. School District,214 Mo. App. 651, 263 S.W. 242), and, when so read together with the specific provision in the contract of employment for the year 1936, it is clear that the trustees had the right to close the school and thus to make void the contract of employment.

It is suggested that this construction nullifies section 1075. This is not so. All that section 1075 means is that if the district employs any teacher for the school in question, it shall employ the teacher who has taught for three successive years prior to the year in question, or the trustees must give her the notice there contemplated. Hence section 1075 can be given effect along with sections 1010 and 1044. It was not contemplated by section 1075 to amend or repeal sections 1010 and 1044.

It is likewise suggested that a custom cannot vary the terms of a statute. The custom here pleaded does not vary a statute, but gives effect to sections 1010 and 1044 authorizing the closing of schools. It is fundamental that parties are presumed to contract with reference to the law in force. (Snider v. Yarbrough,43 Mont. 203, 115 P. 411.) That they did so here is made plain by the written contract for the three years preceding the one in question.

The answer states facts sufficient to constitute a defense. The judgment is reversed and the cause remanded with direction to deny and overrule the motion for judgment on the pleadings.

MR. CHIEF JUSTICE GODDARD and ASSOCIATE JUSTICES STEWART and MORRIS concur.