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Mcnely, Exrx. v. Board of Education





APPEAL from the Appellate Court for the Third District; — heard in that court on appeal from the Circuit Court of Macoupin County; the Hon. CLEM SMITH, Judge, presiding.


Rehearing denied September 24, 1956.

Plaintiff, as executrix of the will of Earl J. McNely, deceased, filed complaint in the circuit court of Macoupin County against the Board of Education of Community Unit School District No. 7 of said county, seeking to recover damages for the wrongful dismissal of decedent as teacher and superintendent. Defendant filed answer denying the material allegations of the complaint and asserting affirmative defenses. Plaintiff filed replication denying such defenses and issues were joined on the pleadings. The cause was submitted to a jury after denial of defendant's motion for directed verdict, and the jury found the defendant not guilty. The trial court entered judgment for the plaintiff in the amount of $4900 notwithstanding the verdict. On appeal to the Appellate Court, the judgment was reversed, (5 Ill. App.2d 84) and this court granted plaintiff's petition for leave to appeal.

Mr. McNely died on July 3, 1952, and his executrix subsequently filed this complaint alleging that by reason of his employment for two consecutive school terms, decedent entered upon contractual continued service within the meaning of section 24-2 of the School Code and that his discharge by the board was wrongful and without cause, and that decedent was entitled to damages measured by the salary he would have received for the period ending with the date of his death.

The defendant raised the following defenses to this action: (1) the decedent was properly discharged; (2) the Teacher Tenure Law does not apply to non-teaching superintendents; (3) the issues in this case were presented in an earlier case which was abated in the Appellate Court, and the action of that court is res judicata of the issues here presented; (4) this action, being in contract, cannot lie because the decedent had no contract at the time of his dismissal; and (5) the plaintiff is barred from recovery herein because the decedent did not seek review of the action of the board of education in accordance with the provisions of the Teacher Tenure Law.

It appears from the evidence that decedent was employed as superintendent of the schools of the district for the 1948-1949 and the 1949-1950 school years. His employment was evidenced by written contracts of obsolete form which provided, "that this contract is subject to contractual continued service as provided in Sec. 127 3/4 of the Teacher's Tenure Law." During the 1950-1951 school year the decedent worked for the district without the issuance of further contract. On April 24, 1951, the board adopted a motion eliminating the job of superintendent and gave written notice to decedent that for reasons of economy, the office of superintendent was discontinued and that his services were terminated. This notice appeared to be based on the provisions of section 24-3 of the School Code (Ill. Rev. Stat. 1949, chap. 122, par. 24-3,) relating to dismissal due to discontinuance of some type of teaching service.

However, one of the school principals of the district was hired as superintendent of the district and as principal of the high school by resolution of the board of education adopted July 19, 1951. It is thus apparent from the record that the position of superintendent, which was eliminated on April 24, 1951, was reinstated on July 19, 1951, without the tender of such post to the decedent, as required by section 24-3 of the School Code. The notice of dismissal and the resolution on which it was based were bottomed solely on the elimination and discontinuance of the job of superintendent, rather than on dismissal for cause, and under the circumstances of this case the attempted dismissal of the decedent was not in compliance with the statute and he was under contractual continued service with the board.

We next consider the defendant's contention that the Teacher Tenure Law is not applicable to nonteaching superintendents. The relevant provisions of section 24-2 declare that "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 term "teacher" is defined as "any or all school district employees regularly required to be certified under laws relating to the certification of teachers * * *." Ill. Rev. Stat. 1949, chap. 122, par. 24-2.

The Teacher Tenure Law was enacted primarily for the protection of educational personnel who, prior to its enactment in 1941, served at the pleasure of school directors or boards of education. Its object was to improve the Illinois school system by assuring personnel of experience and ability a contractual continued service status based upon merit rather than insecurity of employment based upon political, partisan or capricious consideration. Donahoo v. Board of Education, 413 Ill. 422; Betebenner v. Board of Education, 336 Ill. App. 448.

It was for the legislature rather than this court to determine who should be embraced within the scope of its purpose. There is specific statutory direction for the inclusion of educational administrative and supervisory personnel of the type school district in question within the provisions of the Teacher Tenure Law. Judicial construction is not required to accomplish this result. In enacting the Teacher Tenure Law the legislature recognized a distinction between school districts of fewer than 1,000 population, governed by school directors and those over 1,000 governed by boards of education. In applying tenure provisions to districts having directors the legislature included "all teachers, principals and superintendents" (Ill. Rev. Stat. 1949, chap. 122, par. 24-1.) By this provision the legislature evinced a clear determination that the policy of tenure was as applicable to superintendents and principals as to teachers. In the following sections of the act which apply to the larger districts having boards of education, the legislature recognized the existence of employees who assist the superintendent and principal, perform the many and complex requirements of such positions, and, whose duties may be, in part, administrative, supervisory, and instructional in nature. Such employees of the larger type districts would not fit neatly into the three classifications of teacher, principal or superintendent. Tenure was designed for such educational personnel but not for clerical employees, janitors, custodians, maintenance men, etc., who, in many areas, are subject to the provisions of the Civil Service of Cities Act. (Ill. Rev. Stat. 1949, chap. 24 1/2, pars. 39-77a incl.) It was the policy of the legislature to include within the Teacher Tenure Law only those employees required to be certified. It stated that policy by the simple method of defining teachers for the purposes of the act, as "any or all school district employees regularly required to be certified under laws relating to the certification of teachers."

Faced with the clear statutory definition of the term "teacher" as used in the applicable portions of the act, the only proper inquiry for this court is whether superintendents are required to be certified. The defendant has pointed out that in other parts of the School Code, the legislature has recognized a difference between "teaching" and "supervising" and has given to the superintendent duties that are clearly supervisory rather than teaching. We freely grant that teaching and supervising are different functions both in common parlance and in fact and that this distinction is recognized by the legislature in other statutes. Likewise, in many sections of the School Code, the word "teacher" must be construed to include superintendents, principals, and supervisors if absurd results are to be avoided in statutory construction. (Ill. Rev. Stat. 1949, chap. 122, pars. 21-15, 21-21, 21-23, and 21-26.) Yet this circumstance is of no force here. The legislature was free to define "teacher" as used in the Teacher Tenure Law without regard to its common meaning. Indeed its definition here is less broad, and far more in accord with its generally accepted meaning than the definition of "teacher" in the article relating to the teacher's retirement system. The legislature there not only included superintendents and principals within the meaning of the word "teacher," but also school nurses, librarians, county superintendents of schools and assistants, Superintendent of Public Instruction, and any person employed in his office as executive. Ill. Rev. Stat. 1949, chap. 122, par. 25-4.

Justice Cardozo set forth the rule of construction for such cases when speaking for the court in Fox v. Standard Oil Co. 294 U.S. 87, 95: "There might be force in this suggestion if the statute had left the meaning of its terms to the test of popular understanding. Instead, it has attempted to secure precision and certainty by rejecting a test so fluid and indeterminate and supplying its own glossary * * *. In such circumstances definition by the ordinary man or even by the ordinary dictionary with its studied enumeration of subtle shades of meaning is not a substitute for the definition set before us by the lawmakers with instructions to apply it to the exclusion of all others * * *. There would be little use in such a glossary if we were free in despite of it to choose a meaning for ourselves."

Under sections 2-27 and 11-15 of the School Code (Ill. Rev. Stat. 1949, chap. 122, pars. 2-27 and 11-15,) the Superintendent of Public Instruction is given power to set standards for the recognition of elementary and high schools. Pursuant to this power the conditions of recognition required by said Superintendent and the University of Illinois, among other things, provide: "Regulation 4 — Certification. All Superintendents, principals, supervisory officers, and teachers employed in public high schools are required by statute to be properly certified." (The Recognition and Accrediting of Illinois Secondary Schools, issued October, 1940, page 32; also see Illinois School Board Journal, Sept.-Oct. 1941, page 103.) Section 21-1 of the School Code at the time this action arose provided that "No one shall teach in the public schools * * * who does not hold a certificate of qualification * * *." (Ill. Rev. Stat. 1949, chap. 122, par. 21-1.) The interpretation of the school law by the Superintendent of Public Instruction to require superintendents to be certified under the laws relating to teachers is of long standing. Newton Bateman, former Superintendent of Public Instruction, so construed the school law in 1865, and such construction is noted in his book entitled "Common School Decisions," (Pillsbury revised edition, 1889,) page 200, which reads:

"4. Superintendents of City and Village Schools. It is held that the superintendent of city and village schools belongs to the teaching force, and should, therefore, have a certificate of ...

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