Petitioner-appellant filed a petition in the lower court seeking a writ of mandamus against the State Board of Education, Socorro Municipal Board of Education, and Rex F. Bell, as Superintendent of the Socorro Public Schools, respondents-appellees, to compel them to tender him a written contract to teach school in the City of Socorro, New Mexico, for the school year 1945-46, which he claims was renewed by operation of law. The case was tried upon the pleadings, with the result that the trial court quashed the alternative writ theretofore entered and dismissed the petition. Plaintiff appeals.
The record discloses that appellant is the holder of a professional teacher's certificate and that he taught in the city schools of Socorro, New Mexico, continuously for twenty two years prior to the filing of his petition.
The lower court made the following findings of fact:
"1. That on the 3rd day of May, 1945, the Petitioner Ernest Stapleton, was given notice in writing by the Socorro Municipal Board that his contract would not be renewed, said notice specifying a time and place of hearing.
"2. That on the 22nd day of May, 1945, he appeared in person and by counsel for the promised hearing, but he was not confronted with the witnesses against him and the hearing was not a public hearing. That he appealed to the State Board and the so-called hearing which they granted him was similar to the one granted by the Local Board, in that the witnesses testifying against him did not so testify in his presence, and he was again denied the right to cross examine the witnesses appearing against him."
Applying the law to the facts so found, the court concluded:
"1. That the hearing conducted by the Socorro Municipal Board of Education on May 22d 1945, was not held in the manner required by Chapter 60 of the Laws of 1943.
"2. That petitioner was entitled to a trial and hearing de novo before the State Board of Education, and having taken an appeal from the action of the Socorro Municipal School Board he waived any error committed by the respondent, the Socorro Municipal School Board.
"3. That the hearing held by the State Board of Education was not held in the manner required by Chapter 60 of the Laws of 1943.
"4. That the Alternative Writ of Mandamus must be dismissed as the only power resting with the Court is to order a rehearing under proper proceedings before the State Board of Education."
The power to employ and discharge teachers and other employees is reposed in *Page 211 municipal boards of education. N.M.S. 1941 A. 55-807 and 55-907.
The legislature has recognized the sound public policy of retaining in the public school system teachers who have become increasingly valuable by reason of their experience and has, by statute, assured these public servants an indefinite tenure of position during satisfactory performance of their duties. Ortega et al. v. Otero, 48 N.M. 588, 154 P.2d 252; Reed v. Orleans Parish School Board, La. App., 21 So. 2d 895. In order to protect this tenure, the legislature has provided that a teacher who has been properly notified that his services will not be continued for the ensuing year, may, at his own discretion appear before the local board for a hearing.
The purpose of the hearing provided by the Statute is to develop the reasons or grounds which have moved the local board to notice the teacher of its desire to discontinue his services and afford him an opportunity to test the good faith and sufficiency of same. It must be fair and just, conducted in good faith and dominated throughout by a sincere effort to ascertain whether good cause exists for the notice given. If it does not or if the hearing conducted was a mere sham, then justification for the local board's action is lacking.
In 47 A.J., page 398, Section 140, the writer states:
"The purpose of the procedure prescribed by tenure statutes for the dismissal of a teacher or other professional employee is to prevent arbitrary action by school boards, to afford a fair hearing before dismissal, and to provide for full, impartial, and unbiased consideration of the testimony produced. * * *"
Chapter 60, Laws of 1943, in its essential provisions provides as follows:
"Section 1. That Section 55-1111 of the New Mexico Compiled Statutes of 1941 being Section 1, Chapter 202 of the New Mexico Session Laws of 1941 be and the same is hereby amended so as to read as follows:
"`55-1111. On or before the closing day of school in each school district in the State, whether rural, municipal or otherwise, the governing board shall serve written notice upon each teacher or other employee certified as qualified to teach in the schools of the State and by it then employed, stating whether it desires to continue or discontinue the services of such teacher or employee for the ensuing school year. Notice to discontinue the service of a teacher properly certified and who has served a probationary period of two years in a particular district shall specify a place and date, not less than five (5) days nor more than ten (10) days from the date of mailing such notice, at which time said teacher may, at his discretion, appear *Page 212 before the Board for a hearing. If the decision of the governing board is not satisfactory to the teacher, he may appeal to the State Board of Education within ten days from date of hearing and should the State Board of Education find alleged causes insufficient for termination of his services, said teacher shall be considered employed for the following year under the terms of his then existing contract. * * *
"`Failure to serve such notice shall be construed as a renewal of such employment for the ensuing year, unless, within fifteen (15) days after the closing date of school within the district, such employee shall serve written notice upon such governing authority that he or she does not desire such contract to be renewed.'"
It will be observed that the foregoing Act grants qualified teachers among other things, three distinct rights:
1. That notice be given to the teacher on or before the closing day of school of the local Board's desire to discontinue his services. This right is given to all teachers certified to teach, whether they have served one or ten years. The court found, and it is agreed by all parties, that the local board complied with this provision of law.
2. The right, upon discharge, to be heard by the local board, if he so desires. This right is not given to all teachers who are entitled to the above provision, but only to teachers who have served a probationary period of two years. The record discloses that appellant was not afforded a fair and legal hearing by the local board, as provided for by law. However, this does not become material in the case at bar, in as much as appellant appealed this action to the State Board of Education. We are of the opinion, that when he appealed he waived the errors committed by the local board.
3. The right of appeal. Under this provision appellant was entitled to a fair and legal hearing before the State Board of Education with an opportunity accorded him to present his evidence in defense of the charges lodged against him and the right to be confronted by witnesses testifying against him and be allowed to cross examine them. If after the hearing, the State Board should find the alleged causes insufficient for termination of his services, then and in that event the teacher shall be considered employed for the following year under the terms of his then existing contract. The record reveals, and the lower court so found, that the State Board of Education did not comply with this provision in that it did not afford appellant a hearing as is provided by law.
Appellant earnestly contends that the written contract which he held at the close of the 1944-45 school term was renewed by operation of law, for the reason that the notice and hearing required by the *Page 213 act are so inextricably inter-related and mutually dependant one upon the other, that the failure to afford appellant a hearing rendered the notice void and an absolute nullity in law. With this contention we do not agree.
If the legislature had intended that failure to afford the teacher a proper hearing should operate automatically to renew the contract of employment, as in the case of failure to serve notice of the local board's desire with reference to continuance or discontinuance of the services of such teacher, it would have been a very simple matter to make known this intention by merely inserting the language "or afford such hearing" after the phrase "failure to serve such notice," followed by the declaration that the omission should be construed as a renewal of the contract of employment for the ensuing year. This it did not do and we should not perform the legislative function of supplying the omission.
The petitioner was entitled to a fair and legal hearing and to know all of the evidence upon which the State Board of Education based its findings and decision. The plain dictates of justice required it to disclose the facts it knew, if it intended to consider them, also to permit appellant to present his side of the case and to cross-examine witnesses testifying against him. If the hearing was conducted in the manner borne out by the record, then appellant was deprived of the right given him by the Act which prohibited his removal unless the alleged causes were substantiated by evidence at the hearing. American Employers' Ins. Co. v. Commissioner of Insurance, 298 Mass. 161,10 N.E.2d 76; Boott Mills v. Board of Conciliation and Arbitration,311 Mass. 223, 40 N.E.2d 870; Graves v. School Committee of Wellesley, 299 Mass. 80, 12 N.E.2d 176; Burns et al. v. Thomas Cook Sons, Inc., et al., 317 Mass. 398, 58 N.E.2d 150.
It is our opinion, and we so hold, that the failure of the State Board of Education to afford appellant a fair and legal hearing as required by the Act did not of itself renew his contract by operation of law. What the petitioner has been denied is the hearing before State Board of Education to which he was entitled under the law. This being a clear legal right is enforcible by mandamus (Carson Reclamation District v. Vigil,31 N.M. 402, 246 P. 907), a remedy to which he may be entitled still.
Finding no error the judgment of the district court is affirmed.
It is so ordered.
SADLER, C.J., and BRICE and HUDSPETH, JJ., concur.