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

I dissent. The basis of plaintiff's cause of action is the provision of section 1075, Revised Codes, which declares that after a school teacher has been elected for the third consecutive year in any school district such teacher shall be deemed reelected from year to year thereafter at the same salary unless the board of trustees by majority vote decide otherwise and give the teacher notice in writing before May 1st. Admittedly, no such vote was had and no such notice was given; hence, unless the provisions of section 1075 are obviated in some manner, the decision of the district court was correct.

Section 1044 relates to the budget of rural school districts, and among its provisions it provides that the board of trustees is authorized to close schools with an enrollment of fewer than five pupils, if in the judgment of the board such children can be cared for more economically and in a satisfactory manner in another school. Section 1010, relating to the subject of transportation of pupils, authorizes the board of school trustees when it shall deem it for the best interest of pupils residing in the district, to close the school and send the pupils elsewhere.

It is said that since there were fewer than five pupils in the school in question, under these sections the defendant board might close the school and transport the pupils, who would otherwise attend it, elsewhere. This argument proceeds upon the theory that these two latter sections in effect impliedly amend section 1075. Section 1075 was enacted in 1927 in its now present form. Section 1044 was enacted in its present form in 1925. Although some amendments were made to section 1010 in 1929, the particular language of the section was a part of our school law prior to that date. Thus it will be seen that section 1075 is the last of the three sections to be enacted. Implied amendments are not favored. (State ex rel. Malott v. Board of CountyCommrs., 89 Mont. 37, 296 P. 1.)

A construction of these three sections may be adopted which gives them all effect without the one conflicting with the other, as the board may determine at some time before the first of May that it will close the school for the ensuing year either under the provisions of section 1010 or 1044, or both, and thereupon by majority vote act and give the notice in accordance with section 1075. Any other construction leads to the destruction of section 1075, which is the last legislative declaration.

Reliance is placed upon the case of DeHart v. SchoolDistrict, 214 Mo. App. 651, 263 S.W. 242, as supporting an opposite view. There a statute provides that whenever a certain number of colored children of school age reside in a district, the board of directors were required to maintain and establish a separate free school for such children, with the proviso that whenever the average daily attendance for any one school month was less than eight, the board could discontinue such school for a period not to exceed six months. A colored teacher was employed to teach such a school and the board could, in accordance with the proviso, close the school. Another provision of the Missouri statute provided that neither party to a school teacher's contract could suspend or dismiss a school without the consent of the other. The Missouri court held that the statute with reference to schools for colored children was a special statute and the other a general one and, therefore, applying a familiar rule, the former controlled applied to the facts coming within its proviso. Here we have a case where one statute relates to transportation, another to budgets, and a third to the reelection of a teacher; each, therefore, relates to a different subject of the school law; hence the reasoning of the Missouri case is not applicable.

It is argued that by reason of the provisions inserted in previous contracts, a custom or usage was established whereby the board might close the school before the expiration of the term. Section 1075 contains no such provision or exception. A custom cannot vary the terms of, or operate to abrogate or repeal, a general statute. (Ettien v. Drum, 32 Mont. 311, 80 P. 369;State v. Broadwater Elevator Co., 61 Mont. 215,201 P. 687.) Such a contract containing a provision contrary to a statute declaring the public policy of the state is invalid. (Sarle v. School District, 32 Ariz. 96, 255 P. 994; PublicSchool District v. Holson, 31 Ariz. 291, 252 P. 509.)