Opinion
September 16, 1949. —
October 11, 1949.
APPEAL from an order of the circuit court for Manitowoc county: HENRY A. DETLING, Circuit Judge. Reversed.
Edward Meyer of Manitowoc, for the appellant.
John R. Cashman of Manitowoc, for the respondent.
Relator has been a librarian in the employ of the defendant for more than twenty-five years. The alternative writ of mandamus issued upon her petition alleging that the defendant board adopted rules and regulations for the administration of said library and its staff, among which was the "code of ethics for librarians" adopted by the council of the American Library Association, which included rules of tenure.
Petitioner then alleges that on November 8, 1948, defendant board ordered an immediate leave of absence for petitioner, requested her resignation not later than November 30, 1948, notified her that if she did not resign, she would be discharged as of that date, and that whether or not she tendered her resignation, her salary would be paid through December 31, 1948. Petitioner recites her employment for twenty-five years, her refusal to resign, her willingness to continue in service, and her demand made January 12, 1949, for reinstatement. Petitioner prays that the court by mandamus compel the library board to, (1) vacate its action discharging her, (2) reinstate her as librarian, (3) place her name on the library pay roll and certify it to the proper city authorities for payment, and (4) cause her back salary to be paid. The defendant moved to quash the alternative writ, which motion the trial court denied, and from its order denying such motion, this appeal is taken.
Respondent (relator) concedes that the library board is not authorized by statute to grant tenure to its employees, but contends that under its general authority to manage and conduct the affairs of the library it may adopt rules for terminating employment which thereafter are binding upon it.
Counsel contends that, "tenure means the right to hold, the rules of tenure mean the rules set up in the right of tenure governing procedure, but do not mean the right of tenure."
We agree with counsel's definition of tenure, but we are unable to follow the reasoning to the conclusion that where no tenure exists there may be rules of tenure governing procedure.
In the absence of tenure rights the right to hire carries the concomitant of the right to fire. This power may be exercised by the board arbitrarily and without cause.
Respondent argues that since the board is authorized by statute to administer, it has power to make rules and regulations. Counsel cites many cases holding that, "`to regulate' means `to adjust, order, or govern by rule, method, or established mode; direct or manage according to certain standards or laws; subject to rules, restrictions or governing principles.'" State ex rel. v. Fields (1924), 218 Mo. App. 155, 167, 263 S.W. 853, and others. From this broad premise respondent reasons that since the board has the power to administer and therefore the power to make rules and regulations, even though it has no power to establish tenure, it may adopt rules and regulations for termination of employment.
To hold that the board has no power to establish tenure but that it may adopt rules governing the procedure of tenure, one of which may be that an employee can be discharged only for cause, leads to a ridiculous result. To hold that the regulation requires preferment of charges which, if unfounded, are immaterial because the board may then discharge without cause, leads to an equally ludicrous end.
The library board, having no authority to establish tenure rights, has no power to establish rules governing tenure. The board having power to discharge without cause, even though it be done unfairly and unreasonably, the courts have no right to interfere. The alternative writ must be quashed because the petition upon which it is based fails to state a cause of action.
By the Court. — Order reversed and cause remanded with directions to quash the alternative writ of mandamus.