State Ex Rel. Anderson v. Brand, Trustee

5 N.E.2d 531, 214 Ind. 347, 1937 Ind. LEXIS 199, 110 A.L.R. 778

• Court: Indiana Supreme Court
• Decided: January 14, 1937
• Docket: No. 26,560.
• Status: Published

Opinions

By this action it is sought to mandate appellee to continue relatrix in the employ of the township as a school teacher under the Act of 1927 (Acts 1927, c. 97, p. 259), which provides 1. that a person who has served for five or more successive years as a teacher, and shall thereafter enter into a contract for further service, shall become a permanent teacher. The act was amended in 1933 (Acts 1933, c. 116, p. 716, § 28-4307, Burns' Ann. St. 1933, § 6003 Baldwin's Ind. 1934), and made to apply to city and town school corporations only. Townships, to which the act originally applied, were omitted in the amendment, which had the effect of repealing the law so far as townships, schools, and the teachers therein are concerned.

A demurrer to the complaint was sustained. The relatrix contends that this was error; that, having become a permanent teacher under the Teachers' Tenure Law before the amendment, she had a vested property right in her indefinite contract, which may not be impaired under the Constitution. The question is whether there is a vested right in a permanent teacher's contract; whether, under the tenure law, there is a grant which cannot lawfully be impaired by a repeal of the statute.

The establishment and maintenance of public schools is a governmental function, jurisdiction over which vests in the General Assembly, whose power, subject to constitutional 2-4. limitation, is plenary and whose discretion is not reviewable. This legislative power is not exhausted by exercise, and schools may be continued or discontinued, and the school system changed, or one system substituted for another, as often as the Legislature may deem it necessary or advisable in the public interest. Follett v. Sheldon, Treas. (1924),195 Ind. 510, 144 N.E. 867. In establishing schools and enacting laws for their regulation, and in licensing teachers and providing for their tenure, the General Assembly acts for the benefit of the public, and not for the benefit of the teachers. In a case in which it was contended that a provision of the statute, providing for the revocation of teachers' licenses by the county superintendent, was unconstitutional for the reason that there was a vested property right in the license, this court said:

"It must be remembered that the establishment and regulation of public schools rests primarily with the legislative department, and the constitutional provisions invoked by appellee were not designed to trammel the State in the exercise of its general political powers, or to impose upon the courts the duty of interposing between the legislature and the citizen in matters of purely governmental concern. . . . A license has none of the elements of a contract, and does not confer an absolute right, but only a personal privilege to be exercised under existing restrictions and such as may thereafter be reasonably imposed. Statutes authorizing the issuance of such licenses are enacted to promote the good order and welfare of the State, and may ordinarily be repealed at the pleasure of the legislature. (Authorities.)

"In the case of Doyle v. Continental Ins. Co. (1876),94 U.S. 535, 540, 24 L.Ed. 148, the Supreme Court of the United States, in speaking of licenses, said: `The correlative power to revoke or recall a permission is a necessary consequence of the main power. A mere license by a state is always revocable.'"Stone, Supt. v. Fritts (1907), 169 Ind. 361, 364, 365, 82 N.E. 792, 794.

The tenure law does not purport to give a teacher a definite and permanent contract. The word "indefinite" is used in the statute itself. The contract is variable as to 5-7. compensation, and the tenure is permanent only in the event that it is not necessary to reduce the number of teachers. In effect therefore it gives the tenure teacher preferential rights over the teachers who have not attained a tenure status. If the purpose of this statute had been the granting of special privileges to certain teachers for their own benefit, its constitutionality would be seriously in question. But its enactment can be justified upon the theory that its purpose is to promote good order and the welfare of the state and of the school system by preventing the removal of capable and experienced teachers at the political or personal whim of changing officeholders. A future General Assembly may favor a policy of constant change of teachers. The courts are powerless to prevent such a change. Each succeeding Legislature is free and untrammeled in its right to change governmental policy. The revocation of a tenure teacher's license would, of course, carry with it the indefinite contract. The contract, like the license upon which it rests, is a privilege granted by grace of the sovereign for the purpose of promoting the good order and welfare of the state. The license is broader in its bearing than the contract. Without the license a tenure contract cannot exist. Since there is legislative power to revoke the license and thus destroy the contract, there must necessarily be power to do the lesser thing, and merely revoke the tenure contract without canceling the license. The tenure statute was only intended as a limitation upon the plenary power of local school officials to cancel contracts. Ratcliff v. Dick Johnson School Twp. (1933), 204 Ind. 525, 185 N.E. 143. It was not intended as, and cannot be, a limitation upon the power of future Legislatures to change the law respecting teachers and their tenures. These are matters of public policy, of purely governmental concern, in which the legislative power cannot be exhausted or consumed, or contracted away, so as to limit the discretion of future General Assemblies. The repeal of the statute, in so far as it affects townships and township schools, removes the restriction upon the power of the school corporation so far as it affects the preferential or so-called tenure rights of teachers, and leaves the township officers free to renew teachers' contracts or not as may be deemed expedient.

Judgment affirmed.