In Baugh, supra, this Court stated, in general terms, that "[t]he County Board of Education speaks through its records or written memorials", 240 Ala. at 395, 199 So. at 825, and that "if [a] teacher is not to be retained for another year such teacher has the right to expect that such matter be determined upon the judgment of the County Board, as expressed in its written memorials," id. That case, however, dealt with a factual situation completely dissimilar from the present one.Summary of this case from York v. Bd. of School Com'rs of Mobile Cty
8 Div. 73.
January 16, 1941.
Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.
Street Orr, of Guntersville, for appellant.
A county board of education can ratify the irregular or defective action of itself or its agent concerning a matter upon which it has power to act in the first instance. 15 C.J. 465, § 554; Board of Education of Escambia County v. Watts, 19 Ala. App. 7, 10, 95 So. 498; Ex parte Watts, 209 Ala. 115, 95 So. 502; Ryan v. Humphries, 50 Okl. 343, 150 P. 1106, L.R.A. 1915F, 1047; Hill v. Indianapolis, C.C., 92 F. 467; Montgomery Co. v. Pruett, 175 Ala. 391, 394, 57 So. 823. Action of the County Board is final and conclusive unless arbitrary and unjust. Gen.Acts 1939, p. 756, § 8. As to powers and duties of county superintendent, see School Code, §§ 93, 117, 138, 150, 155, 161. Of school trustees, School Code, § 133, Gen.Acts 1931, p. 672. Of the County Board, School Code, §§ 86, 97, 98, 117, 161. A bill in equity must not leave essential matters to inference; they must be affirmatively averred. McKinley v. Irvine, 13 Ala. 681, 693; Overton v. Mosely, 135 Ala. 599, 33 So. 696; Patton v. Darden, 227 Ala. 129, 148 So. 806. Separate and distinct causes of action in favor of separate and distinct complainants, who have no interest in any other cause joined except his own, cannot be joined. To do so makes a misjoinder of parties or of causes or both. Sims, Ch.Pr. §§ 170-180, 234-262; Bestor v. Barker, 106 Ala. 240, 17 So. 389; Mobile Sav. Bank v. Burke, 94 Ala. 125, 10 So. 328; Michan v. Wyatt, 21 Ala. 813; Smith v. Smith, 102 Ala. 516, 14 So. 765; Clay v. Gurley, 62 Ala. 14. The bill does not negative the fact that the records of the county board showed the names of the teachers who were to be notified that their services would not be engaged for the scholastic year 1940-41. The averments of the bill are not certain to a reasonable intent. 21 C.J. 392; Cullman Property Co. v. H. H. Hitt Lumber Co., 201 Ala. 150, 154, 77 So. 574; Board of Revenue of Covington County v. Merrill, 193 Ala. 521, 69 So. 971; Bank of Tupelo v. Hall, 178 Ala. 287, 59 So. 442; Seals v. Robinson, 75 Ala. 363; Richards v. Richards, 98 Ala. 599, 12 So. 817; Moorer v. Moorer, 87 Ala. 545, 6 So. 289; Sims, Ch.Pr. §§ 191, 220.
Richard T. Rives, of Montgomery, and Marion F. Lusk, of Guntersville, for appellees.
Several persons between whom there is a unity of interest in the subject matter of the suit, and who are entitled to and seek relief of the same character and right, may join as complainants. This bill is not multifarious. Equity Rule 31 A. (3), 238 Ala. xxvi; Roanoke, City of v. Johnson, 229 Ala. 496, 158 So. 182; Wall-Hay-Wall Lumber Co. v. Matthews, 211 Ala. 426, 100 So. 824; Shanks v. Winkler, 210 Ala. 101, 97 So. 142. Defendant did not specifically demur to the bill on ground that it failed to negative existence of other records of defendant containing names of teachers to be notified, and it cannot on appeal contend for error in overruling general demurrer on that account. Dothan Oil Mill v. Espy, 220 Ala. 605, 610, 127 So. 178; Wood v. Burns, 222 Ala. 650, 133 So. 696; Moore v. Berryman, 224 Ala. 555, 141 So. 192. The legislature conferred upon the county board of education alone the responsibility and authority of deciding what teachers are not to be retained for the succeeding school year. Gen.Acts 1939, p. 759, § 10; School Code, §§ 86, 98, 117, 138, 161, 185; State ex rel. Ellis v. Griggs, 227 Ala. 681, 151 So. 850. The act of a county board in attempting to delegate to its executive officer or agent the discretionary powers vested exclusively in it by statute is absolutely void, as against public policy. School Code, §§ 86, 98; 1 A.L.I. Restatement of Agency, 55, 56, § 17; 46 C.J. 1033, § 291, note 97; 50 C.J. 858, § 62, note 51; State ex rel. King v. Board of Education of Russell County, 214 Ala. 620, 108 So. 588; County Board of Education v. Slaughter, 230 Ala. 229, 160 So. 758; State ex rel. Kennington v. Red River Parish School Board, La. App., 193 So. 225; Arledge v. Chilton Co., 237 Ala. 96, 185 So. 419; Merlette v. State, 100 Ala. 42, 45, 14 So. 562; Schloss v. Hewlett, 81 Ala. 266, 1 So. 263. Attempted exercise by county superintendent of education of discretionary powers putatively delegated to him by county board of education, being absolutely void as against public policy, cannot legally be ratified, by the board. 2 C.J.S., Agency, §§ 37b, 41, 65, n. 93, pp. 1075, 1078, 1144; 2 C.J. 518, § 139, note 44, 50; 13 C.J. 506, § 452; Perkins v. Reed, 14 Ala. 536. Commissioners Court of Henry County v. Holland, 177 Ala. 60, 58 So. 270; Board of Education of Escambia County v. Watts, 19 Ala. App. 7, 95 So. 498; Andrews v. Claiborne Parish School Board, La. App., 189 So. 355; Right v. Cuthell, 5 East 491. The Teacher Tenure Act should be liberally construed in favor of the class of persons designed to be its primary beneficiaries, namely, the teachers. Andrews v. Union Parish School Board, 191 La. 90, 184 So. 574.
Complainants, twelve in number, were principals or teachers in various schools of Marshall County during the scholastic year 1939-40. They file this bill on behalf of themselves and other teachers similarly situated, seeking specific performance of their employment contracts for the scholastic year of 1940-41, a remedy specifically provided in what is known as the Teacher Tenure Act. General Acts, Regular and Special Session 1939 page 759, Section 8.
The bill discloses that on April 1, 1940, the County Board of Education undertook or attempted to authorize the County Superintendent of Education to notify teachers generally in writing if their services were not desired for the succeeding year, the minutes of such meeting appearing on the records of the Board in the following words and figures:
"A motion was made by Mr. Childress and seconded by Mr. Green authorizing the Superintendent of Education to notify teachers in writing before the close of school if their services are not desired for the ensuing year. Said written notification to be signed by the Superintendent as above authorized in behalf of the County Board of Education and to comply with Section 10 of Act # 499 of the Teacher Tenure Law. Approved: 4-29-40
"V. W. Dickson, Chairman of Board
"W. H. Black, Secretary of Board".
And on April 8th, 1940, there was served on each of complainants and other named teachers not parties to this suit (in all about forty in number), a notice, substantially alike and identical in effect, signed by the Superintendent of Education, in the following language:
"In harmony with recommendation received from the local board of trustees of the Sims school in District No. 61, and, in compliance with Section 10 of Act No. 499, (Teacher Tenure Law), enacted by the last Session of the Legislature of Alabama and approved September 21, 1939, it is now my duty and responsibility to notify you in writing of the termination of your employment by the Marshall County Board of Education. This termination is simultaneous with the expiration of your contract for the scholastic year of 1939-40.
"Very truly yours, "W. H. Black "W. Hugh Black, Superintendent".
Coming first to a consideration of the question which involves the merits of this case, it is readily observed that complainants' rights are rested upon a noncompliance, on the part of the County Board, with the provisions of Section 10 of the Teacher Tenure Act, supra, which section reads as follows: "Section 10: Any teacher in the public schools, whether in continuing service status or not, shall be deemed reemployed for the succeeding school year at the same salary, unless the employing board of education shall cause notice in writing to be given said teacher on or before the last day of the term of the school in which the teacher is employed; provided, however, that in no case shall such notice be given the teacher later than the first day of May of the termination of such employment, and such teacher shall be presumed to have accepted such employment unless he or she shall notify the employing board of education in writing to the contrary on or before the first day of June."
It is clear enough this provision of the act was intended to secure to the teacher a continuing service for the succeeding year, unless notified to the contrary pursuant to Section 10 of the Act; and that this written notice to the contrary must be given under the direction of the County Board not later than the first day of May.
It is the County Board that must determine this important matter, and no one else, and the action of the Board in this respect involves a delicate exercise of a wise discretion. This, therefore, was a duty, the exercise of which, the County Board could not delegate to the County Superintendent of Education or any one else. 46 C.J. 1033; Perkins Hopkins v. Reed, 14 Ala. 536.
The County Board of Education speaks through its records or written memorials of its actions. Board of Education v. Watts, 19 Ala. App. 7, 95 So. 498, 499, and Ex parte Watts, 209 Ala. 115, 95 So. 502. The resolution noted above names no teacher and appears upon its face to leave the matter in the hands of the County Superintendent of Education. So interpreted the action in that regard was a nullity. 46 C.J. 1033.
But the County Board argues upon the theory all of this constituted an irregularity only, was of consequence subject to ratification (citing 15 C.J. 465, 554; 20 C.J.S., Counties, §§ 90, 194; Board of Education v. Watts, supra; Ryan v. Humphries, 50 Okl. 343, 150 P. 1106, L.R.A. 1915F, 1047; Montgomery County v. Pruett, 175 Ala. 391, 394, 57 So. 823), and that the notice given by the Superintendent of Education to the various named teachers was in fact ratified and confirmed by the Board, as shown by its minutes in the following language: "A motion was made by Mr. Childress and seconded by Mr. Jackson approving release of Mr. Delphine Giers, Mr. J. L. Clay, Mr. R. L. Watters, and others shown on attached list, said releases being in line with authorization of Board of Education found under Item #5 of minutes dated April 1, 1940. The motion carried.
"Others as follows:"
Here follows a list of teachers by name, unnecessary to set out.
We have shown, however, that this matter of having notice given the teachers that their services would not be desired for the succeeding year, was a duty involving the exercise of a discretion and nondelegable, and the attempted delegation of the exercise of such duty to the County Superintendent was illegal and a nullity.
The authorities are to the effect that an act done in behalf of another without authority is by positive law or public policy declared to be illegal and void. Such act is not subject to ratification. 2 C.J.S., Agency, § 37, p. 1075. This principle was given recognition by this Court in the early case of Perkins Hopkins v. Reed, 14 Ala. 536, which authority is cited in Schloss v. Hewlett, 81 Ala. 266, 1 So. 263; Matthews, Finley Co. v. Sands Co., 29 Ala. 136; Martin v. Dollar, 32 Ala. 422; and McKenzie v. Clanton, 33 Ala. 528. And we are persuaded a contrary conclusion would run counter to the legislative intent in passing the Teacher Tenure Act. The very laudable purpose of this Act was to insure to the teachers some measure of security in their important work and to free them, at least to a measurable extent from the "vicissitudes of politics" or the likes or dislikes of those charged with the administration of school affairs.
Such being the manifest purpose of the Act it should be liberally construed in favor of the teachers, who constitute the class designated to be its primary beneficiaries. Andrews v. Union Parish School Board, La. App., 184 So. 574; State ex rel. Bass v. Vernon Parish School Board, La. App., 194 So. 74; State ex rel. Kennington v. Red River Parish School Board, La. App., 193 So. 225.
So considered we think it clear enough there was no legislative intent that an unauthorized and illegal notice of this character should become the subject of ratification by the County Board. True, as argued, the Superintendent of Education for the County is a most important official and indispensable in the proper administration of school affairs. And his voice with the County Board no doubt carries great weight, and perhaps justly so. But the "employing board" is the County Board of Education and if the teacher is not to be retained for another year such teacher has the right to expect that such matter be determined upon the judgment of the County Board, as expressed in its written memorials and at a meeting where the board acts as a board and not as individuals. Board of Education v. Watts, supra.
Such a meeting presupposes consultation and discussion — a deliberative body looking to the best interest of the school system with due regard likewise for justice and fairness to the teachers.
The Superintendent in giving the teachers notice that his or services will not be desired for the succeeding year is only acting in that capacity as the voice of the Board and not otherwise, and a teacher receiving such notice has a right to assume that preceding its issuance the deliberative body, the County Board, has duly considered and acted upon the matter.
There is nothing in the Act indicating any circuitous action in this regard, such as first a notice by the Superintendent subsequently ratified by the Board. Any such construction would tend to thwart the very purpose of the act, just and fair treatment to the teachers looking to a measure of security in his or her work.
The notice given by the Superintendent in the instant case makes reference to a recommendation of the local board of trustees, a matter not alluded to by the County Board in any of its motions or resolutions. But such reference adds nothing to the legality of the notice. True it may tend to show good faith. But the bill nowhere charges bad faith or reprehensible conduct on the part of any one connected with the discontinuance of the services of so large a number of teachers.
The sole matter here presented concerns the legality of the proceedings by which these teachers were deprived of continuing service. But we forego further discussion. We are persuaded it was never the legislative intent that the County Superintendent of Education be permitted to give these notices with subsequent ratification by the County Board and that any such interpretation would tend to constitute the Board a mere stamping machine rather than a deliberative body, each acting in conjunction with the other and reaching a conclusion after due consultation and deliberation. The proceedings were wholly invalid.
Defendant further insists that construing the pleadings most strongly against the pleader, as the rule requires, the bill fails to show that other records of the County Board did not contain the names of teachers to whom the notice was to issue. In the first place we are unable to find any specific ground of demurrer taking the point. But this aside, we have repeatedly stated the rule of construction of pleadings does not require that a strained or unnatural interpretation be placed upon the language used. Eastis et al. v. Beasley et al., 214 Ala. 651, 108 So. 763. So construing the averments of this bill we think it sufficiently discloses that the action of the County Board upon the matter here involved is embraced in what is set out therein and not otherwise, and any other construction would be strained and unwarranted.
Still another insistence by defendant is that the bill is multifarious. As often stated no universal rule in regard to multifariousness is admitted to be established as to cover all possible cases. The objection is largely a matter of discretion, and every case must, in a measure, be governed by what is convenient and equitable under its own peculiar facts, subject to recognized principles of equity jurisprudence. It is, therefore, always proper to exercise this discretion in such a manner as to discourage future litigation and prevent multiplicity of suits and never so as to do plain violence to the maxim "courts of equity 'delight to do justice, and not by halves' ". City of Marion v. Underwood, 231 Ala. 225, 164 So. 296.
Viewed from a practical standpoint there appears to be no obstacle in the procedure here pursued. Complainants all belong to a given class — all teachers seeking the advantage of an Act passed for their benefit and the rights of each dependent upon a single issue of law and fact as each was given a notice identical in effect and upon the legality of which hinges the rights of all.
Under the prevailing rule of our decisions as indicated in the Underwood case, supra, we are inclined to the view the objection of multifariousness would be without merit.
But other considerations enter into this particular character of litigation. We have observed that the remedy of specific performance is one created by the act with no detail provisions in regard thereto. We have noted also that this Act was for the benefit of a class — teachers and principals of the public schools of the county employed by the County Board of Education. And when the Act is considered in its entirety we think it was the legislative intent that when the rights of the teachers were dependent upon a common question of law and fact the teachers so similarly situated may maintain one suit for specific performance. We are inclined to the view Equity Rule 31 (238 Ala. XVII), is inapplicable here. But such a bill bears some analogy to a suit by a creditor who sues for himself and all other creditors similarly situated who choose to come in and share in the expense of the litigation. 15 C.J. 1413; 21 C.J.S., Creditors' Suits, § 56.
Though we find no demurrer to this particular aspect of the bill, yet we conclude the reference to other teachers who have not joined in the suit is unobjectionable. These other teachers may have concluded a good defense as to them was available or that otherwise their participation would prove fruitless. However that may be, the offer made in the bill for them to join in the litigation does not render the bill multifarious, for reasons herein discussed.
We have here considered the several matters argued by counsel and conclude the decree overruling the demurrer to the bill is free from error and is due to be affirmed.
It is so ordered.
BOULDIN, FOSTER, and LIVINGSTON, JJ., concur.