HOTZ v. SCHOOL-DIST. NO. 9, HUERFANO COUNTY.

27 P. 15

1 Colo.App. 40

HOTZ
v.
SCHOOL-DIST. NO. 9, HUERFANO COUNTY.

Court of Appeals of Colorado

June 30, 1891

Error
to district court, Huerfano county.

Homer
A. Cole, for plaintiff in error.

D.
McCaskill, for defendant in error.

BISSELL,
J.

This
action was brought by Mary E. Hotz [1 Colo.App. 41] against a
school-district of Huerfano county, to recover a sum which
she alleged to be due her under a contract of employment
entered into by the board of directors of the
school-district. It was satisfactorily shown that in August
of 1886 the board met and decided to employ her as a teacher
for the school year next ensuing. The secretary notified the
teacher of what had been done, and she accepted the terms
offered. On the 5th of September following Miss Hotz went to
La Veta, where the school was situate, saw the members of the
board, and arranged with them for the commencement of her
school on the following day, and for the procurement of a
temporary certificate to entitle her to teach in Huerfano
county until the time of the regular examination of teachers
in November. At this time it was stated by Miss Hotz, and
understood by the board, that she did not possess a
certificate of the county superintendent of Huerfano county
entitling her to teach in that locality, and that it would be
necessary for her to procure a temporary authority to act
till the November examination. This temporary certificate was
procured, and, on the 6th of September, Miss Hotz commenced
her school under this authority, with the knowledge and
concurrence of the directors of the school-district, and
continued to teach under those circumstances for the ensuing
five months. In November she procured her regular
certificate. At the expiration of five months the board of
directors discharged her from the employment, and, as the
record shows, notwithstanding diligent efforts on her part to
procure another engagement, she remained unemployed during
the balance of the year. This suit was brought to recover the
stipulated wages as damages for the breach of the contract.
Several defenses were interposed, but no proof was offered in
support of them; but, upon motion for a nonsuit, the
complaint was dismissed, because it appeared from the
testimony that at the time of the offer of hiring by the
board, and its acceptance by the teacher, she possessed no
certificate from the proper authorities of Huerfano county
entitling her to teach there. Upon the case made this is the
only practical question before the [1 Colo.App. 42] court for
consideration. Section 3055 of the General Statutes
[27 P. 16.]
inhibits the district board from employing any teacher who
shall not possess a license to teach, issued by the proper
authority, which shall be in force at the date of employment;
and the statute contains the further provision: "And any
teacher who shall commence teaching in any such school,
without such license, shall forfeit all claims to
compensation out of the school fund for the term so teaching
without such license." It is thus evident that the
rightfulness of the action of the court below in dismissing
the case depends upon the construction to be given to this
particular section. The statute is undoubtedly intended to be
operative both as to the board and as to the teacher. The
results of a departure from its provisions are widely
different in the two cases. While it is enacted that the
district board shall not employ a teacher who, at the date of
the employment, is without the evidence of authority to
teach, issued by one of the persons authorized to execute a
certificate, no penalty is provided for a breach of the
statute by the board itself. It is wholly unnecessary to
determine what the consequences to the board would be in the
event of its violation by them. This case only concerns the
matter of the violation by the teacher, and as to the teacher
a specific penalty is provided. Under these circumstances,
the only legitimate construction of the statute must be that
the penalty is only enforceable, and can only be held to
attach in the case mentioned, and that is in the case where
the teacher shall commence to teach not having obtained a
certificate. Where, as here, the statute contains two
provisions,--one of which is a prohibition to the board, and
the other of which is a penalty enforceable against the
teacher under certain circumstances,--the true construction
must be that only in the event of a violation of the
provision containing the penalty can it be held that the
teacher is without a right of action. The evident intention
of the legislature was to prevent the employment of teachers
who did not possess the evidence of qualification prescribed
by the statute. The prohibition to [1 Colo.App. 43] the board
was simply intended to impose upon the officers of the
school-district the duty of seeing to it that the teacher
whom they hired should possess the requisite qualifications.
It is true that at the time the board met for the purposes of
employing the teacher, and when they wrote their letter
containing the offer of employment, as well as at the date of
the letter of acceptance, the teacher did not have the
statutory evidence of her qualifications which entitled her
to teach in Huerfano county. This, however, should not
deprive her of the right of action, or entitle the board to
break the contract into which they subsequently entered,
unless they be able to assign some sufficient legal excuse
for the breach. The circumstances and the facts of the case
are such that it may very properly be held that the
employment of Miss Hotz should be deemed completed as of the
date when the services were commenced, since she was
qualified, when she entered upon the discharge of her duties,
with the knowledge and concurrence of the board, which
possessed full authority for employment. School-Dist. v.
Dilman, 22 Ohio St. 194.

Should
it be contended that the board entered into a contract in
August which was void under the statute and unenforceable by
the teacher, it may well be held that a valid implied
contract arose, as between the board and Miss Hotz, when, as
a duly-qualified teacher, she entered upon the discharge of
her duties on the 6th of September, and continued therein for
the ensuing five months. If it be said that it is impossible
to ascertain what the terms of this implied contract are, it
is replied that the express contract may be looked at to
ascertain the terms of the implied one, which the teacher
performed until she was discharged. The commencement of the
school by the teacher, with the knowledge and consent of the
board, after she had received a certificate of qualification
was equivalent to the making of a new contract upon the terms
of the one into which they attempted to enter at their
meeting held in August. Scott v. School-Dist., 46 Vt. 452. [1
Colo.App. 44] This construction and these reasons are well
supported by a consideration of the purposes which the
legislature evidently had in view, and of the circumstances
which necessarily exist in this state in its various
school-districts. If it happened that the teacher did not
possess a certificate issued by the state authority, the
certificate must be issued by the superintendent of the
county where the school is to be taught. Few of the teachers
to be employed are residents of the county wherein they
teach. The time fixed for the public examinations of teachers
are not concurrent with the commencement of the school.
Negotiations must be entered into, as between the board and
the teacher, antecedent to the time of their arrival in the
county in which they are to discharge their duties. The
mischief to be guarded against is the teaching of a school by
a teacher who does not possess the necessary qualification. A
construction of the statute which guards the difficulty
sought to be provided against protects both the teacher and
the district. There are cases containing similar statutes
which hold a contrary doctrine; but the views here expressed,
which are well supported by the two cases cited, seem more in
accord with the evident purposes of the statute, and to
afford more equal protection to the rights of all parties
concerned. It is quite possible that, upon a subsequent trial
of this case, the board may be able, under the defenses which
they interposed, to show a sufficient legal excuse for the
action which they took. If they desire to escape the
consequences of their act in discharging the teacher before
the expiration of the school year, they assume the burden of
proving a sufficient excuse. The judgment must be reversed.