Barnhardt v. Gray

THE COURT.

This is a motion to dismiss an appeal from a writ of

mandamus

which was issued declaring the status of a teacher in the Laws School District to be that of a permanent teacher in that school and directing the payment of her salary. The motion to dismiss the appeal is made under the

[718]

provisions of rule Y, section 3 of the Rules for Supreme Court and District Courts of Appeal on the ground that the appeal was taken merely to delay and that the issues are unsubstantial, having been conclusively determined by the law.

We are unable to say from the record that the appeal is without merit, and the motion to dismiss should therefore be denied. Nor should the writ be affirmed without giving the respondent an opportunity of filing her brief and presenting her cause on appeal.

June 14, 1930, Emilia J. Barnhardt was employed for the ensuing year by the Laws School District of Plumas County, by written contract, as a teacher of elementary grades therein. The contract provided that she was hired as a “permanent employee”. In May, 1931, she was re-employed in the same capacity for the ensuing year by a similar written contract containing the same provision that she was classified as a “Permanent employee”. The classification in these two contracts as a permanent employee was premature and ineffectual. The school had a daily attendance of less than 850 pupils. The school district was represented at all times by a board of trustees consisting of three members.

It appears that for two years following the employment of the teacher by written contract as previously recited, the school board never held a meeting. Both Mr. English and Mr. Hartley, who were then trustees, testified to that fact. There is no conflict of evidence on that subject. It'is true that prior to the beginning of the' school years of 1932-1933 and 1933-1934, two of the trustees did confer unofficially outside of a regular school board meeting, and agreed orally to re-employ the teacher for the last-mentioned two years “as a permanent teacher ’ ’ of the district. No record of any meeting of the school board appears during that period of time, and no record of the designation of the teacher as a permanent employee was made. For four consecutive years Mrs. Barnhardt successfully taught elementary grades in that school. In May, 1934, a regular meeting of the school board was called and a resolution was then passed and signed by all of the members of the board dispensing with the services of Emilia J. Barnhardt as a teacher in that school. She then instituted this proceeding for a writ of