The opinion of the court was delivered by
Valentine, J.:
This was an action brought by B. F. Mudge against the board of regents of the Kansas State Agricultural College. The facts of the case are substantially as follows: On July 16, 1873, the board of regents adopted the following resolutions, to wit:
“Resolved, That Prof. Mudge be tendered the chair of geology and related sciences, at a salary of $1600 per annum.”
“Resolved, That Prof. Mudge be allowed house rent free, in consideration of the extra services which he renders the college.”
On September 4, 1873, said board adopted the following resolution, to wit:
“Resolved, That each professor shall give and receive three months’ notice of resignation or discharge, except in case of gross misconduct.”
At the beginning of the next school year, commencing in September, 1873, and in fact on the 11th day of said September, though the exact day is not very definitely shown, Prof. Mudge commenced to perform services as professor of geology and associated sciences for said Agricultural College. At this time, and prior thereto for moi’e than seven years, Prof. Mudge was and had been in the employment of the said Agricultural College, but in what capacity he was so employed is not shown. From this time until February 6th, 1874, he performed the duties of said professorship of geology and kindred sciences. February 6th, 1874, he was discharged by 'the board of regents from his said professorship, avowedly for gross misconduct, although in fact, as was substantially found by the court below, he was not guilty of any such misconduct. For three months after the discharge Prof. Mudge was out of employment, although he endeavored to obtain employment. No written contract was ever executed between said regents and Prof. Mudge, and no formal oral contract was ever entered into between them. After the regents tendered to Prof. Mudge “the chair of geology and related sciences,” he orally accepted the same, but when he accepted the same is not shown. It was not earlier, however, than August, 1873, and may have been later. The regents paid Prof. Mudge for his services up to the time when they discharged him, but did not pay him for any time afterward. Prof. Mudge then sued them for compensation for the three months next succeeding his dismissal. He recovered in the court below, and obtained a judgment for $493.33. The board of regents now, as plaintiff in error, seek to have this judgment reversed by petition in error in this court. They raise two principal questions in this court: 1st, They claim that their said resolution of September 4th, 1873, was and is void; 2d, But if it is not void, then they claim that it has no application to the employment or services of Prof Mudge. Some other questions are suggested by briefs of counsel, but they are not of sufficient importance to require any separate consideration. We think we must decide both of the principal questions against the plaintiff in error.
I. The act relating to the Agricultural College (Gen. Stat. 75) provides, among other things, as follows:
“Sec. 2. The government of such college is vested in a board of regents,” etc.
“Sec. 3. The board of regents shall' constitute a body corporate, with the right as such to sue and be sued, to use a common seal, and to alter the same at pleasure.”
“ Sec. 4. The regents shall have power to enact ordinances, by-laws and regulations for the government of said college; to elect a president; to fix, increase and diminish the regular number of professors and teachers; and to appoint the same, and to determine the amount of their salaries. They shall have power to remove the president and any professor or teacher, whenever the interest of the college shall require.”
“Sec. 12. The board of regents shall have the general supervision of the college, and the direction and control of all expenditures.”
It will be seen from the foregoing sections of the statute, that the power reposed in the board of regents is very extensive. They are a corporation having the entire control of all departments of the college — -educational, financial and administrative. They have the power to appoint and discharge the president and all the professors and teachers, and to fix and increase or diminish their several salaries. But with all these powers,-they are not supreme, nor irresponsible. They may “sue and be sued,” just as the managing officers of other public corporations, such as.cities, towns, counties, townships and school districts, may.
While their powers are extensive, still they may render their board liable by the wrongful exercise of such power. Thus they have the unquestioned and the continuing power of employing a president and professors and teachers whenever they may choose, and of discharging any of them whenever they may choose; but if they agree to employ a president or professor or teacher for a period of three months, and then wrongfully discharge him before the three months have elapsed, they will leave their board responsible for the whole amount of the salary for such three months, notwithstanding such discharge. While the legislature unquestionably intended to confer upon the board of regents extensive powers, yet it did not intend to confer upon them the irresponsible power of trifling with other men’s rights with impunity; and making the regents responsible for their acts, does not in the least abridge their powers. It only tends to make them more cautious and circumspect in the exercise of their powers. But the plaintiff in error claims in substance that the board has no legal power to make a contract to employ a president or a professor or a teacher for any particular period of time — not even for a day or an hour — and therefore, that an agreement to employ a president or a professor or a teacher for three months, or for any other definite period of time, would be an absolute nullity. Now we cannot think that this is correct. There is no express limitation upon the power of the board to make a contract to employ a president or a professor or a teacher for any period of time, and we know of no implied limitation that would prevent the board from employing, or agreeing to employ, a president or a professor or a teacher for three months, or for even a longer period of time, provided it were not unreasonably long. We would think that the board has the power to make a valid contract, in advance, to employ a president or a professor or teacher for some short but definite time — say .three months — and especially so, where the board reserves the right to discharge such president, professor or teacher at any time for misconduct. It would certainly be for the interest of the college that the board should have such power. No man of spirit, of self-respect, and of capability, would want to hold an office or position at the whim or caprice of a body of men with whom he might have but little if any personal acquaintance. No man of spirit, of self-respect, and of capability, would accept an office unless he'felt that he was reasonably certain to hold the same for some reasonable period of time.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by B. F. Mudge against the board of regents of the Kansas State Agricultural College. The facts of the case are substantially as follows: On July 16, 1873, the board of regents adopted the following resolutions, to wit:
“Resolved, That Prof. Mudge be tendered the chair of geology and related sciences, at a salary of $1600 per annum.”
“Resolved, That Prof. Mudge be allowed house rent free, in consideration of the extra services which he renders the college.”
On September 4, 1873, said board adopted the following resolution, to wit:
“Resolved, That each professor shall give and receive three months’ notice of resignation or discharge, except in case of gross misconduct.”
At the beginning of the next school year, commencing in September, 1873, and in fact on the 11th day of said September, though the exact day is not very definitely shown, Prof. Mudge commenced to perform services as professor of geology and associated sciences for said Agricultural College. At this time, and prior thereto for moi’e than seven years, Prof. Mudge was and had been in the employment of the said Agricultural College, but in what capacity he was so employed is not shown. From this time until February 6th, 1874, he performed the duties of said professorship of geology and kindred sciences. February 6th, 1874, he was discharged by 'the board of regents from his said professorship, avowedly for gross misconduct, although in fact, as was substantially found by the court below, he was not guilty of any such misconduct. For three months after the discharge Prof. Mudge was out of employment, although he endeavored to obtain employment. No written contract was ever executed between said regents and Prof. Mudge, and no formal oral contract was ever entered into between them. After the regents tendered to Prof. Mudge “the chair of geology and related sciences,” he orally accepted the same, but when he accepted the same is not shown. It was not earlier, however, than August, 1873, and may have been later. The regents paid Prof. Mudge for his services up to the time when they discharged him, but did not pay him for any time afterward. Prof. Mudge then sued them for compensation for the three months next succeeding his dismissal. He recovered in the court below, and obtained a judgment for $493.33. The board of regents now, as plaintiff in error, seek to have this judgment reversed by petition in error in this court. They raise two principal questions in this court: 1st, They claim that their said resolution of September 4th, 1873, was and is void; 2d, But if it is not void, then they claim that it has no application to the employment or services of Prof Mudge. Some other questions are suggested by briefs of counsel, but they are not of sufficient importance to require any separate consideration. We think we must decide both of the principal questions against the plaintiff in error.
I. The act relating to the Agricultural College (Gen. Stat. 75) provides, among other things, as follows:
“Sec. 2. The government of such college is vested in a board of regents,” etc.
“Sec. 3. The board of regents shall' constitute a body corporate, with the right as such to sue and be sued, to use a common seal, and to alter the same at pleasure.”
“ Sec. 4. The regents shall have power to enact ordinances, by-laws and regulations for the government of said college; to elect a president; to fix, increase and diminish the regular number of professors and teachers; and to appoint the same, and to determine the amount of their salaries. They shall have power to remove the president and any professor or teacher, whenever the interest of the college shall require.”
“Sec. 12. The board of regents shall have the general supervision of the college, and the direction and control of all expenditures.”
It will be seen from the foregoing sections of the statute, that the power reposed in the board of regents is very extensive. They are a corporation having the entire control of all departments of the college — -educational, financial and administrative. They have the power to appoint and discharge the president and all the professors and teachers, and to fix and increase or diminish their several salaries. But with all these powers,-they are not supreme, nor irresponsible. They may “sue and be sued,” just as the managing officers of other public corporations, such as.cities, towns, counties, townships and school districts, may.
While their powers are extensive, still they may render their board liable by the wrongful exercise of such power. Thus they have the unquestioned and the continuing power of employing a president and professors and teachers whenever they may choose, and of discharging any of them whenever they may choose; but if they agree to employ a president or professor or teacher for a period of three months, and then wrongfully discharge him before the three months have elapsed, they will leave their board responsible for the whole amount of the salary for such three months, notwithstanding such discharge. While the legislature unquestionably intended to confer upon the board of regents extensive powers, yet it did not intend to confer upon them the irresponsible power of trifling with other men’s rights with impunity; and making the regents responsible for their acts, does not in the least abridge their powers. It only tends to make them more cautious and circumspect in the exercise of their powers. But the plaintiff in error claims in substance that the board has no legal power to make a contract to employ a president or a professor or a teacher for any particular period of time — not even for a day or an hour — and therefore, that an agreement to employ a president or a professor or a teacher for three months, or for any other definite period of time, would be an absolute nullity. Now we cannot think that this is correct. There is no express limitation upon the power of the board to make a contract to employ a president or a professor or a teacher for any period of time, and we know of no implied limitation that would prevent the board from employing, or agreeing to employ, a president or a professor or a teacher for three months, or for even a longer period of time, provided it were not unreasonably long. We would think that the board has the power to make a valid contract, in advance, to employ a president or a professor or teacher for some short but definite time — say .three months — and especially so, where the board reserves the right to discharge such president, professor or teacher at any time for misconduct. It would certainly be for the interest of the college that the board should have such power. No man of spirit, of self-respect, and of capability, would want to hold an office or position at the whim or caprice of a body of men with whom he might have but little if any personal acquaintance. No man of spirit, of self-respect, and of capability, would accept an office unless he'felt that he was reasonably certain to hold the same for some reasonable period of time. The shorter and more precarious the tenure of the office, the less attractive, important and valuable it would be; and generally, men of only inferior talent could be found to accept it or to perform its functions with such a precarious tenure, and even then a higher rate of compensation would be required than where the tenure is more stable and certain. In the present case, the contract may be considered as a continuing contract with each professor for his services for the next three succeeding months. That is, the services of each professor are continually contracted for, for three months in advance, until after he gives or receives notice that his services are to be terminated at the expiration of such three months; and his employment will still continue for three months after such notice is given. Now we know of no sufficient reason why-such a contract should not be valid. We think it is eminently reasonable, and for the best interests of the college.
II. But the plaintiff in error claims, that even if the board of regents had- the power to pass said resolution of September 4, 1873, still, that the facts of this case do not constitute a contract under the resolution. We think they do. The board passed a resolution tendering said professorship to Professor Mudge. The board passed another resolution, “that each professor shall give and receive three months’ notice of resignation or discharge, except in case of gross misconduct.” Prof. Mudge had knowledge of these resolutions, and having such knowledge, entered upon the discharge of the duties .of his professorship. Now, we think that these facts are sufficient to constitute a contract between the regents and Prof. Mudge, that he should receive three months’ notice before he should be discharged, except in case of gross misconduct; or rather, these facts (in the absence of any express contract) are sufficient to authorize a finding of an implied contract to that effect. The question was fairly submitted to the jury, under proper instructions. The court also instructed the jury, that if Prof. Mudge was guilty of gross misconduct, and was discharged for that reason, he could not recover, and the jury found in his favor.
The judgment of the court below will be affirmed.
All the Justices concurring.