Commonwealth ex rel. Heisey v. Risser , 3 Pa. Super. 196 ( 1896 )

Opinion by

Rice, P. J.,

We are not required in this case to discuss or to decide the question whether mandamus will lie to compel a board of school directors to reinstate a teacher who has been unlawfully dismissed from the position to which he was lawfully appointed, or to admit him to such position in the first instance. The question before us is much narrower, and is, whether the board may be compelled to oust a teacher, who, under appointment by them, has entered upon the performance of the duties of the position, and give Iris place to one who has a prior contract with the board, but who has never been admitted to the place. The position of a teacher in the public- school is not an office, and, for the breach of a valid contract employing him there is a remedy by action. But even if it be conceded that it differs from an ordinary contract of employment, so that mandamus would lie in a clear case to admit him to the place to which he was appointed, another very serious question arises where the place is already filled. If this were the only difficulty in the relator’s way, we should hesitate to say that the court did not exercise a wise discretion in refusing the writ. A proper regard for the rights of the incumbent, who was not before the court, as well as for the efficiency and welfare of the school in question, would seem to dictate the course pursued by the court below. For if, as the relator contends, a teacher in the public schools may have a right to the place, as distinguished from a right of action for his salary or for breach of contract, an unseemly conflict, highly detrimental to the welfare of the school, might arise if the respondents were to undertake to oust the incumbent without an adjudication of his right in a proceeding in which he had an opportunity to be heard.

But a fatal objection — waiving all others that might be urged ■ — to the exercise of this extraordinary power in the present case is, that the relator does not show a clear legal right to the position into which he asks ' the court to compel the board to admit him.

The act of April 11, 1862 (P. L. 472), provides: “That no ... . teacher shall be appointed or dismissed .... except by the affirmative votes of a majority of the whole number of the directors or controllers thereof; and .... the names of the members voting, both in the affirmative and the negative, shall be so entered on the minutes of the board by the secretary.” The relator claims that he was elected or chosen a teacher by a majority, but admits that it was by a secret ballot and that the names of the members voting in the affirmative and the negative were not entered on the minutes. Where the directions of a statute are given with a view to the proper, orderly and prompt conduct of business merely, the provision may be regarded as directory. But where the fair interpretation of a statute, which directs acts or proceedings in a certain way, shows that the legislature intended compliance with such provision to be essential to the validity of the act or proceeding, the statute must be regarded as mandatory. Of this latter nature is the statutory provision under consideration. It relates to a power conferred on the directors which concerns the public, and tire method of exercising it is prescribed in order that the public may know whom to hold responsible for action which so deeply concerns them.

To hold that it is merely directory and that the board may at pleasure substitute a secret ballot, and thus make it impossible for the secretary to record the affirmative and negative votes, would defeat the manifest purpose for which it was enacted. It has not heretofore received such construction. On the contrary it is well settled that in the appointment of teachers the requirements of the act must be strictly complied with: Dennison Sch. D. v. Padden, 89 Pa. 395; Dyberry School D. v. Mercer, 115 Pa. 559; Whitehead v. School D., 145 Pa. 418. In the first mentioned case the contract with the plaintiff was in due form, just as it is here; she nevertheless failed in her action for a breach thereof because she was unable to show her appointment by the board of directors. Mr. Justice Gordon said: “ By the act of April 11, 1862, teachers can only be selected by the school board, and so specific is the act upon this subject, that it requires the names of the members voting, both in the affirmative and negative, to be recorded upon the minutes. This is the only manner in which teachers can be selected, and from the very nature of things, this power cannot be delegated. Before effect could be given to the contract, exhibited by the plaintiff, it was necessary to show not only that O’Dea was the regularly constituted agent of the board, but that Miss Padden had been selected as a teacher by the previous action of the directors.” In the next case where the question arose the present Chief Justice said of the provisions of the act of 1862: “ They are wise and wholesome provisions intended to correct gross abuses which had gradually crept into the administration of our school system, and hence it is not requiring too much to insist on a substantial compliance with the spirit if not the very letter of the act.” The only instances in which a departure from the strict letter of .the law has been allowed, are when the minutes show that all the members were present: (Tobin v. Morgan, 70 Pa. 229) ; or where, less than the whole number being present, the minutes set forth their names (Genesee Twp. v. McDonald, 98 Pa. 444), and show in each case that the resolution passed unanimously. In the last mentioned case the conclusion, that there was a substantial compliance with the law, was reached “ after a good deal of hesitation.” Here there was neither literal nor substantial compliance with the law. Indeed, where the election is, as it was in this case, by secret ballot, the secretary has no means of ascertaining bow the members voted, and therefore it is impossible for him to comply with the law by recording the names of the members voting in the affirmative and negative. We are unable to agree with the relator that the failure of the directors to conduct the election and to have the result recorded, as provided by law, does not affect the validity of his appointment and his right to be inducted into the place to which he was chosen. It was incu'mbent on him to show an appointment to the place by the board of directors in the manner prescribed by law. A contract of employment without such appointment, although executed in due form by the officers of the board, gave him no vested right to the position and to this extraordinary legal remedy for its enforcement.

For the foregoing reasons in addition to those stated in the opinion of the learned judge in the court below the decree is affirmed at the 'costs of the appellant. „