
    Greco, Appellant, v. Roper et al., Board of Education of City School Dist. of Campbell, Appellees.
    
      (No. 30152
    Decided May 16, 1945.)
    
      
      Messrs. Williams, Stanley & Andrews, for appellant.
    
      Mr. F. R. Hahn, for appellees.
   Zimmerman, J.

The determinative question presented is: Did the defendants as the board of education, under the facts narrated, possess the authority and have the power to terminate plaintiff’s continuing contract as a teacher?

The problem now before us was alluded to in the opinion in the case of State, ex rel. Brown, v. Bd. of Edn. of City of Elyria, 139 Ohio St., 427, 443, 40 N. E. (2d), 913, 921, in this way:

“Relatrix Brown qualified as a teacher entitled to a continuing- contract under the first proviso of Section 7690:2, General Code. Her marriage was without significance, the law making no distinction between married and unmarried teachers. However, if a board of education has a rule against the employment or retention of married female teachers, and it should’decide to attempt to discharge the holder of a continuing contract because of marriage, the situation would then come within the provisions of Section 7690-6, General Code, and the question presented would then be whether marriage constitutes ‘other good and just cause’ for terminating the contract. That question is not now before the court, and no opinion is expressed thereon.”

Boards of education have been invested by the General Assembly with extensive powers within their sphere of activity. Section 4750, General Code, effective until September 16, 1943, provided in part:

“The board of education shall make such rules and regulations as it deems necessary for its government and the government of its employees and the pupils of the schools.”

Section 4834-5, General Code, now in force, contains that identical language.

Section 7690, General Code, effective until September 16, 1943, read as follows:

“Each city, village or rural board of education shall have the management and control of all of the public schools * # * in the district * * *. It may elect, to serve under proper rules and regulations, a superintendent or principal of schools and other employees # * * and may fix their salaries.” See present Section 4836, General Code.

Section 7690-6, General Code, was a part of the Teachers ’ Tenure Act enacted in 1941. That section, in force until September 16, 1943, and present Section 4842-12, General Code, are the same and commence:

“The contract of a teacher may not be terminated [by a board of education] except for gross inefficiency or immorality; for wilful and persistent violations of reasonable regulations of the board of education; • or for other good and just cause.”

Of course, where a statute specifies the precise grounds upon which a teacher’s contract may be, terminated, which grounds do not include marriage, a board of education is without authority to cancel the contract because of marriage. Goff v. Shenandoah Borough School Dist., 154 Pa. Sup., 239, 35 A. (2d), 900; Knox County v. State, ex rel. Nighbert, 177 Tenn 171, 147 S.W. (2d), 100.

But where a statute, such as ours, not only specifies particular causes for which a board of education may terminate a contract but also contains the separate, phrase, “or for other good and just cause,” such phrase must be accorded meaning and force and certainly embraces and was intended to embrace other and different causes than the ones specifically enumerated.

Under our statutes, a board of education is elected by vote of the people. As already indicated, it is charged with the management and control of the public schools and is authorized to employ and fix the salaries of those operating the schools. Moreover, it may “make such rules and regulations as it deems necessary for its government and the government of its employees. ” -

It will thus be seen that the General Assembly has granted boards of education wide latitude and discretion in the particulars mentioned and if, as a matter of policy, a board adopts a rule that upon the marriage of a woman teacher her contract will terminate, can it properly be said that the deliberate violation of such rule does not constitute “good and just cause” for the cancellation of the contract?

A rule of the kind described may have a sound basis in the particular school district and may bear a reasonable relationship to the responsibility of a board of education to build up and maintain an efficient and harmonious school system. Within the discretion conferred, a board may act on the theory that married women as a class will be absorbed with home duties and cares to the detriment of their school work, or on the theory that married women generally have husbands who can support them and that such women should give way to unmarried women qualified to teach and who must support themselves.

The proposition is well settled that when an instrumentality of government is vested with discretion and such discretion is exercised in good faith and in a lawful manner, it should not be interfered with or controlled by the courts. Or, as stated by this court in the second paragraph of the syllabus of Brannon v. Bd. of Edn. of Tiro Consol. School Dist., 99 Ohio St., 369, 124 N. E., 235, “a court has no authority to control the discretion vested in a board of education by the statutes of this state, or to substitute its judgment for the judgment of such board, upon any question it is authorized by law to determine.”

So, it has been held that the adoption by a board of education of a rule against the. employment or retention of married women teachers in the public schools is not arbitrary or unreasonable and lies within the field of discretion of the board to which has been entrusted the determination of questions of policy. Rinaldo v. School Committee of Revere, 294 Mass., 167, 1 N. E. (2d), 37; Houghton v. School Committee of Somerville, 306 Mass., 542, 28 N. E. (2d), 1001.

And it was decided by the Supreme Court of Indiana in the leading case of McQuaid v. State, ex rel. Sigler, 211 Ind., 595, 6 N. E. (2d), 547, 118 A. L. R., 1079, that where a school board had adopted a rule against the retention of married women teachers, the marriage of a permanent tenure teacher in violation of such rule and with knowledge of its existence, constituted “good and just cause,” under the statute, for the termination of her, contract. See 47 American Jurisprudence, 396, Section 139; Opinions of Attorney G-eneral (1941), 575.

In the instant case, the board adopted the rule in 1937 that women teachers’ contracts would terminate upon marriage. Plaintiff was aware of it. In the contract entered into between plaintiff and the board on October 7, 1941, sbe agreed “to abide by and maintain tbe rules and regulations adopted by said board.” On February 14, 1942, she married in face of the rule. Under similar circumstances, the action of school authorities in canceling the teacher’s contract was upheld in the case of Hendryx v. School Dist. No. 4. Lane County, 148 Ore., 83, 35 P. (2d), 235.

Another pertinent authority is that of Nephew v. Dearborn Library Comm., 298 Mich., 187, 298 N. W., 376, 135 A. L. R., 1340, in which it was held that under an amendment to a city charter authorizing dismissal of employees in the classified civil service for any cause which might interfere with the efficient discharge of their duties, a library commission acted within its powers and did not abuse the discretion with which it was vested in discharging a woman employee who married with knowledge of the commission’s rule making marriage a ground for dismissal.

It has been determined in a number of cases that contracts providing for the dismissal of teachers if they marry are valid and do not impose any unreasonable restraint upon marriage. Grimison v. Bd. of Edn. of City of Clay Center, 136 Kan., 511, 16 P. (2d), 492; Gleason v. Mann, 312 Mass., 420, 424, 45 N. E. (2d), 280, 283; Backie v. Cromwell Consol. School Dist. No. 13, 186 Minn., 38, 242 N. W., 389; Price v. Rhondda Urban District Council (1923), 2 Ch. Div. (Eng.), 372; 35 American Jurisprudence, 352, Section 250.

The view opposed to the one we have taken is set forth at length in the dissenting opinion in the McQuaid case, supra, and is to the effect that a board of education may cancel indefinite contracts of permanent teachers only for the causes specifically mentioned by the statute or, for “other good and just cause,” and that, applying the rule of ejusdem generis, “other good and just cause” means some dereliction akin to the causes enumerated, which actually affects the capacity of the teacher to function in an efficient and acceptable manner, hut does not contemplate marriage in and of itself.

Counsel for plaintiff rely on the cases of School Dist. of Wildwood v. State Bd. of Edn., 116 N. J. Law, 572, 185 A., 664, and State, ex rel. Schmidtkunz v. Webb, 230 Wis., 390, 284 N. W., 6. In the first, it does not appear that there was any rule of the board of education providing for the termination of the teacher’s contract upon marriage, dr that written charges were preferred against the teacher and a hearing had thereon as required by the statute. In the second, the statute under consideration was essentially different from ours in phraseology and punctuation.

From a practical standpoint, if a board of education has a rule that the contract of a woman teacher shall terminate if she marries and such rule is against public sentiment in the school district, three things will happen — the rule will not be enforced, it will be revoked by the members of the board in office, or new members will be elected who will act in accordance with the wishes of the voters.

In conclusion, it is important to remember that plaintiff’s marriage of itself did not bring about her dismissal; it was her marriage in contravention of the established rule of the board which it had the right to adopt and to which she had assented.

The soundness of policy underlying the adoption and enforcement of a rule of the type in issue is not for the courts to decide. But if a board of education is denied the privilege of enforcing its valid rules, of what worth is the rule-making power and how can the prerogatives of government, management and control of the schools be effectively exercised?

Finding no error in the judgments of the courts below, the judgment of the Court of Appeals is accordingly affirmed.

Judgment affirmed.

Turner, Matthias and Hart, JJ., concur.

Weygandt, C. J., Bell and Williams, JJ., dissent.

Bell, J.,

dissenting. By virtue of the provisions of Section 3 of Article YI of the Constitution, the General Assembly has full power and authority to regulate the public school system of the state of Ohio. See State, ex rel. Dirs., Eastern and Western School Dists., Cincinnati, v. City of Cincinnati, 19 Ohio, 178; Mills v. Board of Elections, 54 Ohio St., 631, 47 N. E., 1114.

Under those provisions the General Assembly may grant such authority to the boards of education of the various school districts of the state as it deems necessary and proper for the conduct of the public school system, and the boards of education can exercise such powers only as are clearly and distinctly granted. See State, ex rel. Locher, Pros. Atty., v. Menning, 95 Ohio St., 97, 115 N. E., 571; State, ex rel. Clarke, v. Cook, And., 103 Ohio St., 465, 134 N. E., 655.

In 1941, the General Assembly passed House Bill No. .121 which is commonly known as the Teachers’ Tenure Act. As originally enacted it was numbered Sections 7690-1 to 7690-8, both inclusive, General Code.

’ As we construe the tenure act it provides the security of civil service to each and every teacher holding a professional, permanent or life certificate and having completed five or more consecutive years of employment by the board of education of his or her particular school district.

Section 7690-2 of the act provided in part as follows:

“Provided, however, that on or before September 1, 1941, a continuing contract shall be entered into by each board of education with each teacher holding a professional, permanent, or life certificate who, at the time of the passage of this act, is completing five or more consecutive years of employment by said board.”

All of the necessary qualifications to entitle a teacher to a continuing contract are set forth in the statute. Can it be seriously contended that the board of education of any school district possesses authority to add any additional requirement, as a condition precedent, to the execution of a continuing contract? "We think not.

Section 7690-6, General Code (now Section 4842-12, General Code), provided for the termination of such contracts by the board. The language insofar as pertinent here was as follows:

“The contract of a teacher may not be terminated except for gross'inefficiency or immorality; for wilful and persistent violations of reasonable regulations of the board of education; or for other good and just cause.” (Italics ours.) .

In December 1937, prior to the passage of the Teachers’ Tenure Act, the board of education of the city of Campbell adopted a rule which provides, among other things, that “women teachers’ contracts shall terminate immediately upon marriage. * * * This rule shall not apply to substitute teachers.”

During the school year 1941-1942, the plaintiff-appellant was employed as a teacher under a continuing contract. During a leave of absence, on February 14, 1942, she was married. When her leave expired, at the request of the superintendent of schools, she returned to her teaching duties for the balance of the school year. Later her contract was terminated for violation of the rule as to marriage.

In passing, attention should be called again to the wording of the rule, "women teachers’ contracts shall terminate immediately upon marriage. * * *” (Italics ours.)

The factual situation here discloses that she knew of this rule, but that she resumed her position, after her marriage, at'the special instance and request of the superintendent of schools, and that at that time no action was taken to terminate her contract nor was she given any notice that any such action was contemplated. It was not until the next school year that her marriage was made the basis for the termination of her contract. We think that it might well be held that the rule, even if valid, was waived by the board of education in the instant case. However, our grounds for dissent are based upon more vital and fundamental considerations.

We maintain that the board of education was without power or authority to enforce its rule after the passage of the tenure act. The majority of the court take the view that the rule of the board constitutes a reasonable regulation and that a violation thereof constitutes "other good and just cause” for dismissal. The quoted phrase as we construe it means some dereliction of duty which actually impairs the efficiency of the teacher, similar to those specifically enumerated. In other words the doctrine of ejusclem generis applies.

That plaintiff’s efficiency was in no wise affected is best evidenced by the fact that after her marriage, at the request of the superintendent, she returned to her duties as a teacher for the balance of that school year and that no reason was assigned for the termination of her contract other than her marriage during the previous school year.

It is a matter of common knowledge that thousands of women are employed by this state and its political subdivisions and in no instance of wbicb we have any knowledge is marriage a cause for dismissal from the public service. The General Assembly of this state has declined, up to the present time, to make marriage a cause for such dismissal.

In view of the fact that women in all other branches of the public service of the state and its political subdivisions may marry and still retain their positions, an anti-marriage rule applicable to women school teachers alone is arbitrary, discriminatory and unreasonable.

We are cognizant of the fact that some courts have held that a contract which provides for the dismissal of a female teacher, if she marries, is valid and does not' impose an unreasonable restraint upon marriage. Suffice it to say that such contracts at least certainly discourage marriage. There is abundant authority for the proposition that a contract in restraint of or which discourages marriage is void.

In 35 American Jurisprudence, 351, Section 250, the rule is stated thus:

‘ ‘ The initial question in the consideration of whether or not a provision or condition is void because in restraint of marriage is, of course, whether or not the provision or restraint is in fact in restraint of marriage. In order that a provision in restraint of marriage be invalid it is not necessary that the restraint constitute a positive prohibition. It has been said that if the restraint is of such nature and rigidity in its requirement as to operate as a probable prohibition, it is void.”

As we view the matter such a rule as is here under consideration cannot find sanction in the language of the statute nor upon any ground of sound public policy.

Weygandt, C. J., concurring in the dissenting opinion of Judge Bell.

It is not disputed that when a woman school teacher marries the quality of her teaching may be impaired, improved or unaffected. It would seem, therefore, that a nondiscriminatory, lawful and humane solution of the problem should require each case to be considered and decided upon the actual facts rather than by resort to the easy but invariably inequitable device of regimentation.

Williams, J., concurs in the foregoing dissenting opinions.  