Where a statute enumerates the things upon which it is to operate, it must be construed to exclude from its effect all those not expressly mentioned. 59 CJ 984, section 582.
The ruling that the express mention of one thing implies the exclusion of another is applicable to the construction of section 15-2508 1949 Supp to Revised Codes of 1943. Ex parte Corliss, 114 N.W. 962, 16 N.D. 470.
The statutes in existence at the time the contract of employment was entered into are a part thereof. 78 CJS 1056.
School boards have only such power as the statutes confer upon them and must administer the affairs of the district as directed by statute. McWithy v. Heart River School District, 75 N.D. 744, 32 N.W.2d 886.
The legislature has power to limit the grounds for which a superintendent or teacher may be dismissed. 78 CJS 1074.
Where the legislature prescribes the grounds for which a superintendent or teacher may be dismissed, the statute constitutes a limitation upon the school board's power of dismissal. 78 CJS 1074, note 44; Davis v. Gray, 29 Cal.2d 403, 84 P.2d 534; Smith v. School District, 115 Mont. 102, 139 P.2d 518; Commonwealth ex rel. Westenberg v. School District, 148 Pa. Super. 250, 24 A.2d 673.
In the absence of a statutory provision to the contrary, where a school board dismisses a teacher in accordance with the statutory provisions, such act of dismissal is final and conclusive in the absence of fraud, corruption, or oppression and is not subject to review by the courts. 56 CJ 409, section 350.
The findings and determination of the board are conclusive unless the board acted corruptly, in bad faith, or in clear abuse of its powers. Finch v. School District, 225 Mich. 674, 196 NW 532.
The decision of the board is controlling upon the courts in a teacher's action for breach of contract of hire, unless the board acted in bad faith or arbitrarily or capriciously upon facts before it. Anderson v. School District, 196 Minn. 256, 264 NW 784; State ex rel. Ging v. Board of Education of Duluth, 213 Minn. 550, 7 N.W.2d 544.
Unless the statute expressly or by plain implication makes provision therefor, there is no right of appeal. Helland v. Jones, 76 N.D. 511, 37 N.W.2d 513; Anthony v. Phoenix Union High School District, 55 Arizona 265, 100 P.2d 988.
On appeal from a judgment rendered in an action properly triable to a jury, but tried to the court without a jury, the findings of fact are presumed to be correct, and when such findings are based on parol evidence, they will not be disturbed unless shown to be clearly opposed to a preponderance of the evidence. Rasmussen v. Chambers, 52 N.D. 648, 204 N.W. 178; Andersen v. Resler, 57 N.D. 655, 223 N.W. 707.
The law forbids the discharge of a teacher without justifiable cause. 7 CJS 1078, note 79.
Where an administrative agency disregards the evidence or fails to give due weight thereto, then such action is arbitrary. 6 CJS 146; Baltimore Or. Company v. U.S., 5 F.2d 929, rule 931.
Where the appellant demands a trial the novo and does not limit the questions of fact or law to be reviewed, that demand for trial de novo opens the entire judgment to review. Hoellinger v. Hoellinger, 38 N.D. 636, 166 N.W. 519.
GRONNA, District J.
This is a trial de novo of an action by an employee, employed for a particular term, at stipulated wages, against his employer for breach of contract, namely, wrongful dismissal before the expiration of such term.
Defendant is a common school district. On April 11, 1950, its three-member board voted 2 to 1 to re-employ plaintiff, who held a legal teacher's certificate, and who had been employed by the district for about seven years under separate annual contracts. The next day, April 12, a written contract was entered into, wherein plaintiff was employed as superintendent of schools, and as a teacher, for the public school of the city of Steele, an elementary and secondary school of twelve grades, employing ten teachers, including plaintiff. The contract stipulated a term of nine months commencing September 5, and an annual salary of $4,416 payable in nine equal installments of $490.67.
In July, 1950, there was a change in the personnel of the school board. A director, Mrs. Ruth Schoenhard, who was president of the board and had voted for Seher's re-employment, retired, and the vacancy was filled by a former clerk of the board, Mrs. Josephine Ryder, who was openly opposed to the plaintiff, as were the new president, Mrs. Margaret Smith, a member since July, 1948, and the newly appointed clerk, Mrs. Leah DeWall. The third director of the board, Mr. Theodore J. Braa, was favorable to plaintiff. Hereafter, the "board" will have reference to this "divided" board.
The plaintiff performed his contractual obligations up until December 2, 1950, when he was suspended, and thereafter he remained ready, able and willing to perform, but was prevented by the suspension, and later, dismissal.
On December 2 a notice of dismissal and detailed charges or accusations were served upon plaintiff. These were signed by the two women directors and the clerk. The hearing of the charges was held at Steele, the president of the board presiding, on December 15 and 16, and on January 10, 1951. The whole of the statute, with reference to the dismissal of school teachers, and upon which the "charges" were based, is as follows:
"The school board . . . may dismiss a teacher at any time for plain violation of contract, gross immorality, or flagrant neglect of duty . . . ." 1949 Suppl 15-2508 (RC 1895, s. 695).
On January 17 this motion was carried by a majority vote:
". . . that the board finds the charges have been sustained and that said J. J. Seher has been guilty of plain violation of contract, gross immorality and flagrant neglect of duty and has refused to obey the lawful orders of the board or to cooperate with the school board; that the said J. J. Seher should be and he is hereby dismissed as such superintendent and teacher."
Since no findings of fact were made by the board, said conclusions of law and order of dismissal were not based upon or supported by findings of fact.
On February 14, 1951, the teacher brought this action in the District Court of Kidder County, against his employer, the district, for breach of his contract of employment. The trial was held at Steele, the county seat, on September 27, 1951, before the judge without a jury, a jury having been waived by stipulation. In addition to the testimony taken and exhibits introduced at the trial, it was stipulated that a transcript of the exhibits introduced at the hearing before the school board, should be received in evidence on the trial of this action, subject to the objections of counsel thereto.
The Findings of Fact, Conclusions of Law, and Order for Judgment of the District Court, read in part:
FINDINGS OF FACT . . .
"7. That no evidence was offered to support the written charges preferred by the majority members of the school board of the defendant school district against the plaintiff to warrant the suspension and dismissal of the plaintiff as superintendent of schools and teacher, and that there is no competent evidence to sustain the determination of the school board that the plaintiff was guilty of plain violation of contract, gross immorality or flagrant neglect of duty, as charged by the defendant school district.
. . .
"10. That the sum of $2502.18 is the unpaid balance upon plaintiff's contract after allowing for the amount earned by the plaintiff from other gainful employment from the time of his dismissal to the end of his school term and is the amount of damages sustained by the plaintiff by reason of the breach of his contract.
"Upon the foregoing Findings of Fact the Court makes the following Conclusions of Law:
. . .
"4. That the plaintiff has performed his contract in part and was ready, able, and willing to perform the terms of said contract on his part to be kept and performed, and that he was prevented from fully performing the same by the wrongful and unlawful suspension and dismissal by the school board of the defendant school district. That there was no evidence to sustain the determination of the school board that the plaintiff was guilty of plain violation of contract, gross immorality or flagrant neglect of duty, as charged by the defendant."
THE ISSUES
Before reviewing the evidence to see if it supports the Findings and Conclusions of the District Court, we shall determine two preliminary questions, both procedural:
(1) Did the dismissed teacher have an administrative appeal to a superior officer and if so was such appeal (a) his exclusive remedy, and, if not, was it (b) a condition precedent to the commencement of this action for damages?
(2) Is the school board's decision concerning "cause" for dismissal controlling upon the courts in a teacher's action for breach of his contract of employment?
DECISION
1. Although no appeal to a judicial tribunal is provided from the action of the board in dismissing a teacher, the district (defendant) contends that NDRC 1943, sections 15-2217 and 15-2107 provided the teacher with an administrative remedy of appeal, and having failed to pursue such remedy, the order of dismissal is final. Such statutes read as follows:
"15-2217. The county superintendent of schools shall decide all matters in controversy arising in his county in the administration of the school laws or appealed to him from decisions of school officers or boards. An appeal may be taken from his decision to the superintendent of public instruction. In such case, a full written statement of the facts, together with the testimony and the decision of the county superintendent of public instruction for his decision, and such decision shall be final, subject to appropriate remedies in the courts."
"15-2107. The superintendent of public instruction shall counsel with and advise county superintendents of schools and boards of education in special or independent school districts upon all matters involving the welfare of schools, and on request, he shall give them written answers to all questions concerning school laws. He shall decide all appeals from decisions of county superintendents of schools, and, for the consideration of such appeals, he may require affidavits, verified statements, or testimony under oath as to the facts in issue. He shall prescribe, and cause to be enforced, rules of practice and regulations pertaining to the hearing and determination of appeals and such rules and regulations as may be necessary to render effective the school laws of the state."
The method of review of the decisions of school officers or school boards prescribed by these sections has no application to the action of a school board in dismissing a teacher. Leaving wholly on one side all questions as to the power of the legislature to confer upon the school board the power to determine questions affecting the rights of the contracting parties arising under a contract to which the school board is a party, it seems to us that the reading of the sections clearly shows that there was no intention that the method of review provided in the sections cited should or could be made applicable to obtain a review of a decision of a school board dismissing a teacher. It has been generally recognized that a teacher who claims to have been dismissed without cause has a remedy by action for damages for the injuries sustained. Clark v. Wild Rose Special School District, 47 N.D. 297, 182 N.W. 307; Mootz v. Belyea, 60 N.D. 741, 236 N.W. 358, 75 ALR 1347; McWithy v. Heart River School District, 75 N.D. 744, 32 N.W.2d 886.
2. Is "cause" for dismissal of a teacher an administrative question or a judicial question? Should the school board or the jury, in the first instance, determine the question of "cause"? Under our statute, 15-2508, authorizing a school board of a common school district to dismiss a school teacher for certain specified causes, is the board's decision controlling upon the courts in a teacher's action for breach of his contract of employment?
No decision of our own involving these precise questions has been cited. However, counsel for the school district has cited a number of cases from other states (but none from this state) supporting the rule that the school board, rather than a jury, must in the first instance determine the issue of "justifiable cause" for dismissal of a teacher; and the board's decision is final and controlling upon the courts in a teacher's action for breach of contract of employment, and is not subject to judicial control, unless the board acted corruptly, in bad faith, or in clear abuse of its powers. Finch v. Fractional School District, 225 Mich. 674, 196 N.W. 532; Anderson v. Consolidated School District, 196 Minn. 256, 264 N.W. 784; State v. Board of Education, 213 Minn. 550, 7 N.W.2d 544; Kelsey v. School District, 84 Mont. 453, 276 P. 26, cited in State ex rel. Howard v. Ireland, 114 Mont. 488, 138 P.2d 569.
However, the case at bar, like all cases, must be decided in accordance with the statutes and decisions of our own State.
Our statute, 15-2508, supra, expressly provides that the school board of a common school district "may dismiss a teacher at any time," for certain causes. This statutory provision became a part of the teacher's contract. The laws in existence when a contract of employment is entered into become a part of the contract, as though written therein. Cf. State ex rel. Cleveringa v. Klein, 63 N.D. 514, 520, 249 N.W. 118, 86 ALR 1523.
So, in this, as in the Finch case, supra, 225 Mich. 674, 196 NW 532, the school board had the power, under the contract, to dismiss a teacher at any time even though he was employed for a particular term. Clearly, this gave the board authority to terminate the employment. However, the question here is not whether the board had the power to terminate the employment, but whether the board had the power to terminate the contract. That is to say, does the school board by an act of its own, and without the consent of the teacher, have the power and authority to abrogate an existing contract (i.e., a property right) which the teacher has not violated, and stands ready to perform, so as to deprive the teacher of his remedy for a breach of contract?
Inasmuch as public school education is a governmental, rather than proprietary, function, the legislature may declare that the question of fact as to whether there is "cause" for dismissing a teacher, shall be an administrative, rather than a judicial, question. In recognizing this elementary principle, we find a suggested answer to our problem, namely, it is determined by the extent of the board's statutory power.
In North Dakota, this court has made it clear that school boards have no common-law powers. The public schools of the state are under legislative control, and school boards have no power except those conferred by the statutes upon them. McWithy v. Heart River School District, supra, 75 ND at 749, 32 N.W.2d at 889; Batty v. Board of Education, 67 N.D. 6, 269 N.W. 49; State ex rel. Mannes v. Alquist, 59 N.D. 762, 231 N.W. 952, 72 ALR 494; Gillespie v. Common School Dist., 56 N.D. 194, 216 N.W. 564; Pronovost v. Brunette, 36 N.D. 288, 162 N.W. 300; Rhea v. Board of Education, 41 N.D. 449, 171 N.W. 103; State ex rel. School Dist. v. Tucker, 39 N.D. 106, 166 N.W. 820; Kretchmer v. School Board, 34 N.D. 403, 158 N.W. 993. "School officers have and may exercise only such powers as are expressly or impliedly granted by statute." Gillespie v. Common School Dist., supra, 56 ND at 198, 216 NW at 565; State ex rel. Mannes v. Alquist, supra, 59 ND at 767, 231 NW at 954, 72 ALR at 498. "And in defining these powers the RULE OF STRICT CONSTRUCTION applies and any doubt as to their existence or extent must be resolved against it. See Lang v. Cavalier, 59 N.D. 75, 228 N.W. 819, 71 ALR 373, and cases cited; . . . ." Batty v. Board of Education, supra, 67 ND at 9, 269 NW at 50.
Under a private (as distinguished from public) contract of employment, the employer may dismiss the employee at any time for plain violation of contract or any other cause, but the employer has no power whatsoever to determine the question of "cause" for dismissal in so far as the employer's liability for breach of the contract of employment is concerned. An employer has the power to dismiss with or without cause, an employee hired for a particular term, and the employee has no judicial remedy for reinstatement even though the dismissal constitutes a breach of the contract of employment. But, having the power to dismiss, even without cause, and even where the contract is for a definite term, the employer thereby subjects himself to liability for breach of contract unless good cause for dismissal exists. The fact of dismissal is, of course, no evidence that it was justifiable. All this is elementary and fundamental.
"It must not be forgotten that the right of private contract is no small part of the liberty of the citizen, and that the usual and most important function of courts of justice is to maintain and enforce contracts, unless it clearly appears they contravene public policy or express law." State ex rel. Cleveringa v. Klein, supra, at p 536 of 63 ND.
So, the employer has the absolute power of dismissal, which power is not subject to judicial control with respect to the matter of reinstatement. But, the employer has no power whatsoever to determine the question of "cause" for dismissal insofar as the employer's liability for breach of the contract of employment is concerned. Should the same rules govern a teacher's contract? Yes, our statute NDRC 1943, 9-0701 so provides: —
"All contracts, whether public or private, are to be interpreted by the same rules, except as otherwise provided by the laws of this state."
"Ousting the jurisdiction of the courts" is expressly forbidden in NDRC 1943, Sec 9-0805, which renders such provisions in a contract void. Dinnie v. U.C.T., 41 N.D. 42 at 47, 169 N.W. 811 at 813. See 12 Am Jur, Contracts, sections 458 note 20, and 186 note 3; 17 CJS Contracts, Sec 229.
NDRC 1943, 9-0805 reads: —
"Every stipulation or condition in a contract by which any party thereto is restricted from enforcing his rights under the contract by the usual legal proceedings in the ordinary tribunals or which limits the time within which he thus may enforce his rights is void, except as otherwise SPECIFICALLY permitted by the laws of this state."
". . . where such a condition goes to the very foundation of the action, and operates to oust the jurisdiction of the courts, it is void as being against the policy of the law, and an action may be brought without offering to comply with the condition." VI Wait's Actions and Defenses (1879 ed) 516.
A common school district is not "specifically" permitted, by the statutes or decisions of this state, to insert a stipulation or condition in a teacher's contract that a dismissed teacher is restricted from enforcing his rights under the contract by the usual legal proceedings in the ordinary tribunals. And there is no such stipulation or condition in the contract herein.
Another point to remember is that in North Dakota, the relationship between the teacher and the school district is purely contractual. There is no fixed tenure of employment other than the provision for it in the contract. The relation of the district and the teacher is that of employer and employee. And even though a teacher is a public employee, he is not a public official, not even a subordinate officer. Mootz v. Belyea, supra, 60 N.D. 741 at 744, 236 N.W. 358 at 359, 75 ALR 1347 at 1348 and 1349.
We conclude that (1) "cause" for dismissal of a teacher is an administrative question which the school board must determine in the first instance (Clark v. Wild Rose Special School District, supra), and this determination is not subject to judicial control insofar as the question of reinstatement is concerned. (Mootz v. Belyea, supra) (2) On the other hand, since the determination of liability, if any, for breach of contract is not an administrative or executive function, but a judicial function, therefore, the school board has no power or authority whatsoever to determine the question of "cause" for dismissal insofar as the school district's liability for breach of the contract of employment is concerned. So, under our statute, 15-2508, authorizing the board to "dismiss a teacher at any time" for certain causes, the board's decision dismissing the teacher is neither final nor controlling upon the court in a teacher's action for breach of contract. Instead, the burden of proof is upon the defendant district to prove, by a fair preponderance of the evidence, that its board had justifiable cause for such dismissal. And the fact of dismissal is no evidence that it was justifiable. Briefly, in a teacher's action for damages, "cause" is a jury question.
DAMAGES
With respect to the question of damages, the District Court observed the correct measure of damages, namely: Where a teacher is dismissed without cause before the expiration of his term of employment, and has been paid to the date of his dismissal, he may sue for breach of contract of employment, and if the suit is not commenced or is not tried until the term of employment has expired, he may recover the contract price, less what he has earned, or by reasonable diligence could have earned subsequent to his discharge. 78 CJS, Schools and School Districts, Sec 216; 47 Am Jur, Schools, Sec 145; annotation in 150 ALR 100.
CONCLUSION
We have reviewed all of the evidence and have considered the findings of fact of the trial judge, which are entitled to appreciable weight. And since a review of the evidence clearly and plainly reveals a failure of proof on the part of defendant school district as to its affirmative defense of "dismissal for cause," it is therefore Held, that the findings and conclusions of the trial judge to the effect "that there was no evidence to sustain the determination of the school board that the plaintiff was guilty of plain violation of contract, gross immorality or flagrant neglect of duty, as charged by defendant," are correct. Judgment for the plaintiff is affirmed.
MORRIS, C. J., and GRIMSON, and BURKE, JJ., concur.
SATHRE, J., disqualified, did not participate, HON. A. J. GRONNA, Judge of the Fifth Judicial District, sitting in his stead.