By the Act of April 6, 1937, P. L. 213 (24 P. S. § 1126), commonly known as the Teachers' Tenure Act, Section 1205 of the School Code1 was amended so as to provide that "Each board of school directors . . . in all school districts in this Commonwealth shall . . . enter into contract, in writing, with all professional employes" according to a contract form prescribed by the amendment, and that the contract "shall be executed on behalf of the board of school directors . . . by the president and secretary and signed by the professional employe." At the same time, the Act of 1937 also amended Section 1201 of the School Code by inserting therein the following definition of a professional employe: "The term 'professional employe', as used in this act, shall include *Page 515 teachers, supervisors, supervising principals, principals, directors of vocational education, dental hygienists, visiting teachers, school secretaries the selection of whom is on the basis of merit as determined by eligibility lists, school nurses who are certified as teachers and any regular full-timeemploye of a school district who is duly certified as ateacher." (Emphasis supplied).
It would seem clear, therefore, that when a board of school directors of any district employs a regular full-time employe who is duly certified to teach, such employe at once becomes entitled to receive a contract, in form as prescribed by the Act of 1937, executed on behalf of the board of directors by the president and secretary and signed by the professional employe. That is what the statute plainly directs. No logical reason that I have seen has yet been assigned why the legislative direction should not be obediently administered by the courts.
No one questions that it was within the legislature's competency to provide that a regular full-time employe of a school district, who is a certified teacher, is a "professional employe" for the purposes of the statute or that such "professional employe" shall receive the statutorily prescribed contract and be entitled to its protection. Nor is it necessary for us to find justification for the underlying governmental policy which the legislature, within its unquestioned province, thus sought to subserve. The words of the statute being clear and unmistakable, the legislative intent is manifest. That, plus the fact that the effectuation of the intent lay within the legislature's power, should be justification enough for a court's enforcement of the statute as written. It may be noted in passing, however, that the provision which embraces certified teachers who are employed by school boards in positions other than as teachers at least obviates possible subterfuges for attempted avoidance of the aim and purpose of the statute.
From the undisputed evidence, the learned judge of the court below found the following facts: The plaintiff *Page 516 was elected on December 6, 1937, by the board of directors of the defendant school district to the position of clerk to the Superintendent of Schools of the district at a fixed monthly salary. That action was taken at a regular meeting of the board of directors which was attended by the whole number of directors whose votes and action on the question of the plaintiff's employment were duly recorded in the minutes of the board. The plaintiff was a certified teacher, having received her permanent teacher's certificate from the Department of Public Instruction of the State on October 1, 1921. She had served as a teacher in a school district of this Commonwealth, including the defendant school district, for a period of years. She entered upon the discharge of the duties of her position as clerk on December 7, 1937. On March 11, 1938, she was given a written contract which was executed on behalf of the board of directors of the defendant school district by the president and secretary and was signed by the plaintiff. The contract complied strictly with the form prescribed by the Act of 1937. After entering upon her position as clerk, the plaintiff continued to discharge the duties of that office until May 15, 1940, when she was summarily dismissed by the board of directors without any charges having been filed against her and without a hearing. As the learned court below expressly found, — "No charges were ever preferred against plaintiff, nor any reason given by the board for her dismissal."
Why, then, was the plaintiff not entitled to her statutory contract with the school district and to the protection which it was intended to afford? The learned court below based its denial of relief to the plaintiff on the ground that a regular full-time employe of a school district who is certified as a teacher is not a "professional employe" when employed as aclerk. While that ruling peremptorily and completely disposed of the question adversely to the plaintiff's contention, its patent invalidity lay in the fact that it flew directly in the face of the *Page 517 statute whose clear definition of a "professional employe" neither invites nor justifies any such limitation. The action of the learned court below seems to be not other than judicial amendment of the statute.
The majority of this Court hold that the plaintiff's contract with the defendant school district "was manifestly not 'drawn in strict compliance with the action taken by the Board' ". True enough, the board's "action related to the plaintiff's election 'to the full time position of clerk' " while the contract "stipulates that the plaintiff 'shall teach in the said school district . . . ' ". But, to fasten upon the word "teach", as employed in the prescribed contract form, and allow it to determine that the board's action must show its employment of a permitted professional employe as a teacher when the employe is not employed nor intended to teach likewise works a rewriting of the statute in disregard of its plainly expressed intent and purpose, which is security of tenure to full-time school district employes who are qualified to teach.
Of course, the word "teach", as used in the contract form, is inadequate if arbitrarily restricted to its limited meaning. At most, it is but a word in the contract and, as such, is open tojudicial construction whose historic office is to give to words the meaning which, if not unreasonable, will most fully effectuate the intent and purpose of the instruments in which they are employed. Certainly, one word in a statutorily prescribed contract form should not be slavishly and unnecessarily stressed to the extent of defeating a major plain intent and express direction of the statute which prescribes the contract. To avoid so doing in the present instance, it would not be unreasonable to hold that "teach", as used in the contract form, means that the contracting "professional employe" shall teach or otherwise perform the duties for which such employe was competently employed by the board of directors. In short, the contract should be read in the light of the character of the services performable *Page 518 by the various "professional employes" who are embraced within the defined scope of the amended statute; and the thing of paramount importance is as to who qualifies under the statute as entitled to the protection of the prescribed contract. SeeTeachers' Tenure Act Cases, 329 Pa. 213, 235, 197 A. 344.
By refusing to give the word "teach", as used in the prescribed contract, a meaning embracive of the services of the various "professional employes" who are specified by the statute as the contemplated recipients of such contracts, the purposes of the Act are thwarted to a substantial extent.
For example, a dental hygienist of a school district is, by the statute's express terms, a "professional employe" and, accordingly, is entitled to the prescribed contract. Such an employe, however, is not required to be a certified teacher. How, then, could a school board's action in the case of a dental hygienist possibly show employment as a teacher when in fact the permissible employe is not certified to teach. None the less the statute requires that the president and secretaryshall execute, on behalf of the board of directors, a contract with a dental hygienist (i. e., a "professional employe") on the same prescribed form whose terms call for the employe to "teach". Again, "school nurses, who are certified as teachers", are specifically denominated "professional employes" by the statute and, as such, are entitled to the prescribed contract. On a parity of reasoning, the majority opinion would exclude the prescribed contract form, with its word "teach", from use in the case of a school nurse who is employed to nurse and not to teach. That situation, of itself, demonstrates the immateriality of the implication contained in the statement in the majority opinion that "The School Code nowhere specifically designates clerks as professional employes". Admittedly it doesn't, but it does define a "professional employe" and the crucial inquiry here is not whether the plaintiff is a clerk but whether she qualifies as a "professional employe". *Page 519
The difficulty, which the majority opinion creates by overemphasizing the word "teach" in the contract, it attempts to meet by saying that "when a professional employe is employed to teach school the contract shall say so, but if the professional employe is engaged to act as a school secretary, or a clerk, or a dental hygienist, the contract shall so state." By what authority may this Court so require? The Act itself provides that the "contracts shall contain only the following:". Then follows the prescribed contract form. To invite the many boards of school directors throughout the State (as does the majority opinion) to supplant the verbiage of the form contract and to supply their own was the very thing that the legislature apparently sought to avoid when, by the amendment of 1937, it inserted the word "only" with respect to the permissible provisions in the prescribed contract. Why, then, should the word "teach" not be construed so as to give effect to the patent intendment of the Act and the contract? To construe a word of a statute in furtherance of a competent legislative intent is a judicial function, but to ignore the legislature's positive inhibitions is to legislate, which is not within the rightful province of a court. There is no present magic in the word "teach" which requires that substance be sacrificed to form to the extent of rendering the statute inoperative in the case of dental hygienists, school nurses and other regular full-time employes who, while certified as teachers, are not in fact employed to teach.
In the light of the undisputed facts and the law applicable thereto, I fail to perceive any justification for the conclusion that the plaintiff's contract of March 11, 1938, was signed without the direction or approval of the board of directors of the defendant school district. The action of the board in employing the plaintiff as a regular full-time clerk was competent and appropriate to the intendment of the parties; and, as duly recorded on the minutes of the board, it correctly reflected the action so taken. Undeniably, the plaintiff was a certified *Page 520 teacher. She therefore qualified as a "professional employe" and, as such, was entitled to the prescribed contract. There was nothing further for the board of directors to do. In the circumstances present, the mandatory direction of the statute intervened and thereby it forthwith became the positive duty of the president and secretary to execute, on behalf of the board of directors, the statutorily prescribed contract with the plaintiff. The statute says that, in the case of a "professional employe", the president and secretary"shall" so act. To do that, they needed no authorization or direction from the board of directors other than the board's duly recorded employment of the plaintiff (a certified teacher) as a regular full-time employe. And, the contract they were required to execute was prescribed. The statute forbade them to change the form or to use any other. It cannot, therefore, be logically said that the execution of the contract exceeded the action of the board.
In view of the undisputed and readily ascertainable fact that the plaintiff was a certified teacher, any suggestion that the board of directors may not have known that fact when they employed her as a clerk is gratuitous. Actually she had thirteen full years' experience as a teacher in local school districts aside from having acted as a supply teacher in the defendant school district prior to her employment as clerk; and it is undisputed in the testimony that, at least, the majority of the board who voted for the plaintiff's employment as clerk knew that she was a certified teacher and that that qualification was of influence in their action.
There is no need to fear that, by following and applying the Act of 1937 as written, "any person employed by a school district in any full-time capacity is entitled, if he possesses a teacher's certificate, to be employed to teach school." The action of the school board designating the position for which the professional employe is engaged would enter into the construction of the contract whose form is statutorily prescribed to insure *Page 521 tenure of position. According to the provisions of the contract, it may even be terminated at any time because of the need to decrease the number of professional employes by reason of substantial decrease of pupil population in which event "the board of school directors . . . may suspend the necessary number of professional employes. . . ." The only requirement in such regard is that the employes shall be dismissed in the inverse order of their appointment and that, in case of later reinstatements, they shall be reinstated in the inverse order of their suspension. If the cause for terminating the contract relates to the ability, character or habits of the employe, she is entitled under the Act to written specifications of the charges and a right to a hearing thereon before the board of directors whose duty it is to determine, after a full hearing, whether the charges have been sustained. If the board finds that they have been, it is required to "discharge, demote or refuse to reelect or retain such professional employe". None of the cases cited in the majority opinion touches the question which the instant case poses.
The plaintiff's dismissal was not because the board intended to decrease the professional employes of the school district. The record shows that the very day on which the board voted the plaintiff's dismissal it elected another person to the position of clerk which the plaintiff had filled. So far as cause for the dismissal attaching to the plaintiff is concerned, there is not a single word in the entire record of any criticism of the plaintiff's ability, character or habits. "That no criticism was made of her work is conceded. . ." (Opinion of court below sur plaintiff's exceptions). The conclusion is irresistible that the plaintiff was summarily dismissed to satisfy the whim or caprice of the board of directors and that is what the statute was designed to prevent in the case of "professional employes".
I should reverse the order of the court below and direct that an appropriate writ of mandamus issue.
Mr. Justice PATTERSON joins in this dissent.
1 Act of May 18, 1911, P. L. 309, as amended. *Page 522