The construction by the majority of this court of Title 52, Section 352 results in total inconsistency. The opinion first states that Mr. Baugh, regardless of designated title, was in fact principal of Albertsville High School from the date he was hired in the summer of 1964. I agree! The next statement is that he thereafter, to wit, the beginning of the school year 1968, attained tenure within the meaning of Title 52, Section 352.
The inconsistency follows. — Though Baugh was principal throughout his employment and attained tenure after three years, such tenure status was not that of *Page 424 principal. The tenure status attained was that of instructor or teacher, a position never held by Baugh. Though he attained the tenure status of teacher or instructor by serving as principal, he may never attain tenure as principal because he was not first a teacher or instructor and attained tenure as such teacher or instructor.
It is correctly stated by the majority that the 1951 amendment to Title 52, Section 352 recognized that one may attain tenure as a principal under the Teacher Tenure Law. This is contrary to the holding of the Supreme Court in Clark v. Beverly, 257 Ala. 484, 59 So.2d 810. Of course Clark v. Beverly was decided on the words of Section 352 prior to amendment. Though recognizing that tenure as principal is authorized by statute, the majority determines that such authorization is limited to those who have come up through the ranks of the particular school system. One originally hired as principal by a particular system may never attain tenure as a principal in that system though he serves in such position until he retires. After three years he does attain tenure as teacher, but never as principal.
On the other hand, one who first attains tenure as a teacher in that system does attain tenure as principal after serving three years as principal in the system. One may have served in other systems as teacher, instructor or principal for many years, but if he is hired as principal in another system he can never attain tenure status as a principal.
Such construction of Section 352 is contrary to reason and can only result in utter chaos in the various systems of the state. It will make it difficult if not impossible for one system to hire qualified and desired principals from another system or another state, as was the case with Baugh. No one is likely to accept a position that is totally unprotected by the tenure law of the state.
It will destroy the presumed status of those who have been previously hired directly into a system as principals.
I strongly dissent from the majority opinion because such construction of Section 352 is strained and clearly not the intent of the legislature in passing the 1951 amendment.
The 1951 amendment, insofar as applicable to this case, added the following two sentences:
"An instructor who has attained continuing service status and who is promoted to principal or supervisor shall serve for three consecutive school years as a principal or supervisor before attaining continuing service status as a principal or supervisor. Such promotion shall in nowise jeopardize the continuing service status of the teacher as an instructor; and, should the promoted instructor not be retained as principal or supervisor, his salary would be reduced to the salary paid instructors in accordance with the prevailing salary schedule in the county or city school system."
It appears clear to me that the purpose of the change in the statute was to provide for attainment of a continuing service status as a principal and at the same time to protect those who had previously attained a lesser status as a teacher, from losing it while seeking to attain the higher position of principal. In the event the higher status was not attained, nothing was lost and one could remain in the system as a teacher. This obviously was intended to encourage teachers in the system to seek higher status, yet be protected from total dismissal if they failed to perform in the higher status for three years. It surely cannot be construed that the legislature by its words intended to discourage the hiring of qualified persons as principals from without the system.
I further believe that to interpret the statute in the manner of the majority is to arbitrarily discriminate against those hired as principals or supervisors without having first served as teachers in the system and thus renders the statute unconstitutional and in violation of the equal protection *Page 425 clause of the Fourteenth Amendment to the Constitution of the United States. McLaughlin v. State of Florida, 379 U.S. 184,85 S.Ct. 283, 13 L.Ed.2d 222. The clear purpose of the Teacher Tenure Law is to protect all the teachers of Alabama and render them secure from the arbitrary, unjust personal and political actions of all boards of education. It is evident that the purpose of establishing a three year period of uninterrupted service as a limitation upon dismissal, transfer or reduction in status except for cause, was to protect every teacher in every system.
To provide that a principal hired from within a system after attaining teacher tenure, may then attain principal tenure upon three years' service as principal, but that a principal hired from without the system may never attain tenure as a principal is unjust and amounts to unreasonable classification and discrimination.
"It is the duty of the court to construe a statute so as to make it harmonize with the constitution if this can be done without doing violence to the terms of the statute and the ordinary canons of construction." Board of Education of Choctaw County v. Kennedy, 256 Ala. 478, 482, 55 So.2d 511, 514; Almon v. Morgan County, et al., 245 Ala. 241, 16 So.2d 511.
I would hold that after serving as principal of Albertville High School for three consecutive years and entering into a contract for a fourth year, Baugh attained a continuing service status as a principal and was not subject to transfer except in accordance with Title 52, Section 355. For the reasons stated herein, I am compelled to respectfully dissent from the opinion of the majority.
ON REHEARING