Clune v. School District No. 3

166 N.W. 11, 166 Wis. 452, 6 A.L.R. 736, 1918 Wisc. LEXIS 16

• Court: Wisconsin Supreme Court
• Decided: January 5, 1918
• Status: Published

Opinion

Keewiw, J.

1. The respondent held a second-grade teacher’s certificate issued to him on the 31st day of August, 1914, by the county superintendent of schools of Outagamie county. The certificate was in due form and valid upon its face.

Some question is made by counsel for appellant to the effect that the contract of hiring was not valid. Careful examination of the record convinces us that this contention is without merit.

It is claimed by appellant that the contract was not made by the board, but by the school officers in their individual capacity. It is true that the proceedings with reference to employing the respondent were not as formal as they might have been, but it appears that all of the school officers were present and made the contract, and that in effect the contract was made by the school board. It was signed by all the officers and the respondent, and we think the récord sufficiently shows that.it was authorized by the board. Dolan v. Joint School Dist. 80 Wis. 155, 49 N. W. 960. The court found that the school board met on the 5th day of June, 1915, that all members were present, and that it unanimously voted to hire the respondent. These findings are supported by the evidence and sufficiently show an employment of the respondent. Mendel v. School Dist. 121 Wis. 80, 98 N. W. 932; Pearson v. School Dist. 144 Wis. 620, 129 N. W. 940.

2. It is further contended that the court erred in striking out the portion of the answer referred to in the statement of facts. This contention is based upon the theory that the appellant had the right to show that the 'respondent was not a qualified teacher and that he obtained his certificate through fraud.

It is plain from the provisions of our statutes that the matter of issuance and annulment of teachers’ certificates, licensing persons to teach the common schools, is placed under the control of the county and state superintendents. Sec. 461, Stats., provides, among other things, that it shall be the duty of every county superintendent to examine and license teachers in his district and to annul certificates as provided by law. Sec. 451 provides that each superintendent shall establish a standard of attainment in each branch of study, which must be reached by each applicant before receiving a certificate. Sec. 452 provides for appeal to the state superintendent for re-examination in case an applicant is refused a certificate, and further provides that the superintendent may annul certificates if satisfied the person to whom a certificate has been granted was not qualified. Sec. 45B also empowers the county superintendent to annul a teacher’s certificate upon charges affecting the teacher’s moral character, learning, or ability to teach. Sec. 497 provides for an appeal to the state superintendent from any decision of the county superintendent, and sec. 497a provides that no review of the decisions of the state superintendent on matters decided by him shall be had unless proceedings by certiorari or other appropriate action be brought within thirty days after such determination by him.

We third!: it clear that no error was committed in striking out the portions of the answer referred to. The action of the superintendent being within his jurisdiction, no review was proper in this action. State ex rel. Cook v. Houser, 122 Wis. 534, 100 N. W. 964; 17 Am. & Eng. Ency. of Law (2d ed.) 1056; Wood v. Chamber of Commerce, 119 Wis. 367, 96 N. W. 835.

3. It is insisted that appellant was discharged from performing its contract with respondent, even if a valid contract were made, on account of the destruction of the schoolhouse by fire. There was no stipulation in the contract to that effect, and no provision for deduction on account of destruction of the school house by fire or otherwise. Under such circumstances no deduction could be made without the consent of the respondent. School Directors v. Crews, 23 Ill. App. 367; Smith v. School Dist. 69 Mich. 589, 37 N. W. 567; Cashen v. School Dist. 50 Vt. 30; Charlestown School Tp. v. Hay, 74 Ind. 127; Libby v. Douglas, 175 Mass. 128, 55 N. E. 808; Dewey v. Union School Dist. 43 Mich. 480, 5 N. W. 646.

4. It is also contended that the appellant was discharged from performing its contract with respondent on account of the action of the special school meeting in voting to suspend the school. The respondent was an employee of the appellant and the relations between appellant and respondent were contractual. The appellant, therefore, could not abrogate the contract or modify it without the consent of the respondent. Board of Ed. v. State ex rel. Reed, 100 Wis. 455, 76 N. W. 351; Jones v. U. S. 96 U. S. 24, 29; McKay v. Barnett, 21 Utah, 239, 60 Pac. 1100, 50 L. R. A. 371.

5. It is further argued that in any event the damages were excessive because the respondent should have sought other employment and mitigated the damages. We do not think this contention can be sustained. In the instant case the respondent was obliged to and did hold himself in readiness to comply with the terms of his contract, and it further appears that he did make some effort to obtain another position as teacher but failed. After destruction of the schoolhouse there was some talk by members of the school board, which information was conveyed to respondent, that appellant would rent a place for holding school. We think upon the whole record no reduction of damages should be allowed, that the findings of the court below are supported by the evidence, and that the respondent is entitled to recover; therefore the judgment below should be affirmed.

By the Court. — Judgment affirmed.