Bates v. Board of Ed. , 133 W. Va. 225 ( 1949 )

With deference, I dissent from the majority opinion. In doing so, I do not disagree with the positions taken in the majority opinion that (1) This Court ordinarily will not interfere in disputes which necessarily arise among teachers of this State and the respective county boards of education; (2) that the assignment of teachers to particular schools is a matter within the sound discretion of a board of education to be made upon the recommendation of the superintendent of schools, as held inWeaver v. The Board of Education of Calhoun County, 128 W. 234 Va. 42, 35 S.E.2d 679; (3) that the board of education of Mineral County is not guilty of capriciousness or bad faith with reference to relator as was found to exist in the cases ofNeal v. Board of Education of Putnam County, 116 W. Va. 435,181 S.E. 541; White v. Board of Education of Lincoln County, 117 W. Va. 114,184 S.E. 264, 103 A.L.R. 1376; Pond v. Parsons,117 W. Va. 777, 188 S.E. 232; and Rowan v. Board of Education ofLogan County, 125 W. Va. 406, 24 S.E.2d 583; and (4) that the board of education in dismissing relator or in failing to renew his continuous contract for the ensuing school year was activated by the best of motives and what was thought to be in the interest of the school system of Mineral County.

Nevertheless, I dissent. The relator here is not seeking to require the respondents to assign him to any particular school, where there is more than one school in the county in which he can teach; if he were, there would be no merit in his petition. In Weaver v. The Board of Education of The County of Calhoun,supra, syllabus, this Court held: "Mandamus does not lie to compel a county board of education and a county superintendent of schools to recognize a person as a teacher in a particular school who has not been assigned to such school by the superintendent with the approval of the board." Howard High School, in which relator taught, under a continuing contract, from the school term beginning 1940 until the end of the school year 1948-49, with the exception of a period of approximately three and one-half years during which relator was in the armed services, is the only high school in Mineral County available for negro children and in which relator could teach. It follows that the fact that, under Subsection (j) of the contract of July 1, 1940, he may be entitled to "be placed upon a preferred list in the order of the length of services performed by the teachers employed" by the board and that the board "shall give due consideration of such list and order if and when vacancies or need occur," is of little moment for such privilege will not benefit relator in the least. This record portrays that, notwithstanding relator had a high school certificate limited to the teaching of industrial arts, he taught, evidently with the permission and approval of the board of education and the county superintendent of schools, other subjects such as plain geometry, algebra, seventh and eighth grade mathematics, physical science, general science and physical education; and though respondents' answer denies the allegations of relator's petition that his services in teaching subjects, not embraced in his certificate, were satisfactory, there is no proof, as the majority opinion states, in this record that relator's services in this regard were, in fact, unsatisfactory.

Relator's contract of July 1, 1940 was what is known as a "Teacher's Continuing Contract of Employment" and was entered into by the contracting parties pursuant to the provisions of Code, 18-7-1, as amended by Chapter 53, Acts of the Legislature, 1939, which provides in part: "A teacher's contract, under this section, shall be a continuing contract of employment and shall remain in full force and effect except as modified by mutual consent of the school board and the teacher, unless and until terminated with written notice, stating cause or causes, to the teacher, by a majority vote of the full membership of the board before April first of the then current year, or by written resignation of the teacher before that date." The foregoing language of the statute was incorporated verbatim in the contract of July 1, 1940 except that the words "party of the second part" are substituted for the word "teacher." The contract further provides in Subsection (p) that the contract "shall terminate if at the beginning of any school year the party of the second part does not hold a valid teacher's certificate covering the period of such term; * * *." But relator here held a valid high school teacher's certificate, though it was limited as hereinbefore set forth, from the time the contract was executed, July 1, 1940, until his services were terminated at the end of the 1948-49 school year.

In my opinion, the clause contained in the instant contract, providing for the termination of the contract "with written notice, stating cause or causes" for termination, is indefinite and ambiguous but because the clause is a part of the contract it cannot be discarded or ignored. If the words in question were interpreted unreasonably and without regard to the security of the members of the teaching profession in this State in their employment as teachers, then a teacher, notwithstanding his length of service or qualification, could be dismissed arbitrarily and at the whim of any, if such there is, politically minded board of education. Because, in the instant regard, the contract is, in fact, ambiguous, I think the rule of practical construction should be applied here. Though such construction will not change the clear intent expressed in a contract (Watson v. Buckhannon River Coal Co., 95 W. Va. 164,120 S.E. 390), this Court "will adopt the construction which the parties to an ambiguous contract, by their conduct and express agreement during performance, have placed upon it." Summit CoalCompany v. Raleigh Smokeless Fuel Company, 99 W. Va. 11, pt. 1 syl., 128 S.E. 298. See also, Osage Gas Co. v. Cleveland Morgantown Coal Co., 101 W. Va. 675, pt. 4 syl., 133 S.E. 388. Here the relator and the board of education, in fact, gave a practical construction to the ambiguous provisions of the contract when the former, under his limited certificate, through quite a number of years, rendered, evidently at the instance and request of the board, teaching services in subjects not embraced in his certificate, and the latter continued to accept such services and repeatedly renewed relator's continuing contract. Moreover, the state superintendent of schools, when he caused to be incorporated in all later contracts, the explanatory language "the expression `cause or causes' as in this paragraph shall mean failure on the part of the teacher to fulfill this contract or violation on the part of the teacher of a lawful provision thereof.", placed a practical construction on the terms "cause or causes." In view of this practical construction, I am unable to agree with the majority opinion.

The majority opinion says that Subsection (j) of the contract filed with respondents' answer "saved to the board the right to dispense with the services of a teacher on account of lack of need for his services." The contract and the statute, (Section 1, Chapter 53, Acts of the Legislature, 1939) in my opinion, furnish no such support. True, the statute provides "That a continuing contract shall not operate to prevent a teacher's dismissal based upon the lack of need for the teacher's services pursuant to the provisions of lawrelating to the allocation of teachers and pupil-teacherratios." (Italics supplied.) Chapter 9, Article IX, Section 6, Acts of the Legislature, Extraordinary Session, 1933, contained a provision for a pupil-teacher ratio in the following language: "The total number of needed teachers in any subdistrict established by the board shall be determined by dividing the number of pupils in average daily attendance during the preceding year by eighteen, in districts with an average daily attendance of one to five per square mile; by twenty-two, in districts having an average daily attendance of six to nine per square mile; by twenty-five, in districts having an average attendance of ten to nineteen per square mile; by thirty, in districts having an average daily attendance of twenty to thirty-nine per square mile; and by thirty-eight, in districts with an average daily attendance of forty or more per square mile; * * *." This provision of the statute was reenacted in Chapter 39, Article IX, Section 6, Acts of the Legislature, Second Extraordinary Session, 1933.

But, with the amendment contained in the Acts of the Legislature, Regular Session, 1939, the statutory provision as to the establishment of a pupil-teacher relation was omitted from the statutory law of this State. See Michie's West Virginia Code, 1937, Chapter 18, Article 9, Section 6, which contains the last above quoted statutory provision and Michie's Code, 1943, Chapter 18, Article 9, Section 6, in which the provision as to the allocation of teachers on a pupil-teacher ratio is omitted from the statute. In these circumstances, it appears that the provision contained in Code, 18-7-1, as amended by Section 1, Chapter 53, Acts of the West Virginia Legislature, 1939, relied upon in the majority opinion, to the effect "That a continuing contract shall not operate to prevent a teacher's dismissal based upon the lack of need for the teacher's services pursuant to the provisions of law relating to the allocation of teachers and pupil-teacher ratios." is meaningless and has no statutory basis, and will not ground relator's dismissal for the reasons suggested in the majority opinion.

This record does not disclose that relator failed to fulfill his contract or that he violated any lawful provision thereof in view of the practical construction placed on the contract through a long course of years by the contracting parties and the state superintendent himself. I do not think that the "informal Pupil-Teacher ratio for high schools of thirty students for each teacher" should stand in the way of the practical construction of the ambiguous part of the contract by the contracting parties and the state superintendent. In passing, I venture to say that as a practical matter a pupil-teacher ratio can not always be invoked and used over an entire county where, as here, there is only one school, such as Howard High School, in which the enrollment is small but in which the students need all the facilities required for a good high school education. Why, during the course of years in which relator taught in Howard High School, did the board ignore the informal pupil-teacher ratio, which it alleges it established, and on which it now seems to rely to sustain relator's dismissal? The board, of course, so far as this record discloses, was acting in good faith and in what was thought to be for the best interests of Howard High School and the student body thereof. Personally, I have no doubt that they were not activated by any capricious political or personal motives. But, in my opinion, by their action in dismissing relator, which has the approval of the majority of this Court, the board ignored the practical construction which it through many years has placed on the ambiguous terms of relator's contract and thereby they have made a serious inroad in the norm which underlies the continuing contract which was designed for the security of the teaching profession of this State in their employment. In my opinion, relator has been dismissed without just cause. Therefore, I would award the writ.