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Mcnely v. Board of Education

FEBRUARY 18, 1955.

ERMA W. MCNELY, EXECUTRIX OF WILL OF EARL J. MCNELY, DECEASED, PLAINTIFF-APPELLEE,

v.

BOARD OF EDUCATION OF COMMUNITY UNIT SCHOOL DISTRICT NO. 7, MACOUPIN COUNTY, ILLINOIS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Macoupin county; the Hon. CLEM SMITH, Judge, presiding. Reversed.

MR. PRESIDING JUSTICE CARROLL DELIVERED THE OPINION OF THE COURT.

Rehearing denied March 29, 1955.

Plaintiff, as executrix of the will of Earl J. McNely, deceased, brought suit in the circuit court of Macoupin county to recover damages for the alleged wrongful dismissal of decedent as a teacher and superintendent of Community Unit School District No. 7 in said county.

The complaint in substance alleges that on July 1, 1948, the decedent was employed by the defendant as superintendent and teacher for the school term beginning July 1, 1948, at an annual salary of $5,400, payable in 12 equal installments; that said employment contract was in writing and dated September 13, 1948; that on March 28, 1949, decedent was again employed by the defendant for the school term beginning September 1, 1949. His employment was evidenced by a written contract dated August 24, 1949, containing the same provisions as found in the previous agreement; that decedent, pursuant to said contracts, served as superintendent of and as a teacher in said school; that on April 25, 1951, the defendant wrongfully and without just cause discharged decedent and prevented him from performing under the said contract, although he was willing and ready to so do; that upon termination of the second contract the decedent entered upon contractual continued service under provisions of the Teacher Tenure Law and was entitled to continued employment by defendant; that for the period from July 1, 1951 until decedent's death on July 3, 1952, he would have been entitled to receive the salary of $5,400 as provided in the last written contract.

The two written contracts referred to, which are set out in full in the complaint, are apparently on forms adapted for use in preparing teachers employment contracts so that the same may comply with the Teacher Tenure Law. Decedent is referred to in the written contracts as a legally qualified teacher.

Since the pleadings do not appear to be related to the basic question here involved, further reference to the same is unnecessary other than to observe that the issues were joined.

A jury trial resulted in a verdict for defendant. The plaintiff moved for judgment notwithstanding a verdict, or, in the alternative, for a new trial. The court allowed both motions and entered judgment for the plaintiff in the amount of $4,900. From this judgment defendant appeals.

The principal proposition which the defendant relies upon for reversal is that the decedent was employed as a superintendent of schools and not as a teacher and therefore his employment contract did not come within the provisions of the Teacher Tenure Law. Disputing this contention the plaintiff argues that it was the intention of the legislature to include superintendents of schools within the classification of "teacher" under the Tenure Act. Plaintiff further contends that since, in the instant case, the decedent was employed under a contract expressly providing that employment thereunder was subject to the Tenure Act, the defendant elected to bring decedent within its provisions.

The record shows that at a meeting of the board of education of the defendant's district, it was determined to eliminate the job of superintendent of the district and that decedent should be notified in writing that said position was being discontinued and his services terminated for reasons of economy and for the good of the school district. The record further shows that a letter was sent to the decedent informing him of the action of said board. It is evident from the procedure followed by the defendant in discharging the decedent that it regarded him as being a superintendent of schools and not a teacher within the provisions of the Tenure Act.

Determination as to whether the Teacher Tenure Act applies to a superintendent of schools is dependent upon the intent of the legislature as expressed in the Act.

Section 24-2 of the school code [Ill. Rev. Stats. 1953, ch. 122, § 24-2; Jones Ill. Stats. Ann. 123.1125] provides as follows:

"Any teacher who has been employed in any district as a full-time teacher for a probationary period of two consecutive school terms shall enter upon contractual continued service unless given written notice of dismissal stating the specific reason therefor, by registered mail by the employing board at least sixty days before the end of such period."

The above section defines "teacher" as follows:

". . . `teacher' means any or all school district employees regularly required to be certified under laws relating to the ...


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