No. 13078
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
SCHOOL DISTRICT No. 1 2 ,
PHILLIPS COUNTY, MONTANA,
P l a i n t i f f and A p p e l l a n t ,
-
-vs
DOLORES HUGHES, County S u p e r i n t e n d e n t of
Schools o f P h i l l i p s County, Montana, and
DOLORES COLBURG, S u p e r i n t e n d e n t of P u b l i c
I n s t r u c t i o n o f t h e S t a t e of Montana,
Defendants and Respondents,
and
M N A A EDUCATION ASSOCIATION and
OTN
V. M. JOHNSON,
Intervenors.
Appeal from: D i s t r i c t Court o f t h e F i r s t J u d i c i a l D i s t r i c t ,
Honorable R. J. Nelson, J u d g e p r e s i d i n g .
Counsel of Record:
For Appellant :
Smith, Smith and S e w e l l , Helena, Montana
Chadwick H. Smith a r g u e d , Helena, Montana
F o r Respondents :
C a r r o l l Blend a r g u e d , G r e a t F a l l s , Montana
Hon. R o b e r t L. Woodahl, A t t o r n e y G e n e r a l , Helena,
Montana
Donald D. Cole, County A t t o r n e y , M a l t a , Montana
For Intervenors:
H i l l e y and L o r i n g , G r e a t F a l l s , Montana
E m i l i e L o r i n g a r g u e d , G r e a t F a l l s , Montana
Submitted: May 2 8 , 1976
PER CURIAM:
T h i s a p p e a l i s from amended f i n d i n g s of f a c t , con-
c l u s i o n s of l a w and judgment of t h e d i s t r i c t c o u r t , Lewis
and C l a r k County, wherein t h e d i s t r i c t c o u r t r u l e d s e c t i o n s
75-6107, 75-5811 and 75-5709, R.C.M. 1947 a r e " n o t uncon-
s t i t u t i o n a l when c o n s t r u e d i n a c c o r d a n c e w i t h t h e p r e c e d i n g
f i n d i n g s of f a c t . "
Two i s s u e s a r e p r e s e n t e d f o r r e v i e w :
1. Whether t h e l a s t two s e n t e n c e s of s e c t i o n 75-6107
and a l l o f s e c t i o n s 75-5811 and 75-5709 a r e i n v i o l a t i o n of
A r t i c l e X I S e c t i o n 8 , 1972 Montana C o n s t i t u t i o n ?
2. Whether t h e same s t a t u t e s v i o l a t e A r t i c l e V I I ,
S e c t i o n 4 ( 2 ) , 1972 Montana C o n s t i t u t i o n ?
The f a c t s i t u a t i o n i s s i m p l e and u n d i s p u t e d . A written
stipulation states:
"That A. W. U n t e r s e h e r i s S u p e r i n t e n d e n t o f t h e
p u b l i c s c h o o l d i s t r i c t s i t u a t e d a t Saco, P h i l l i p s
County i n t h e S t a t e of Montana, and t h a t he i s
t h e e x e c u t i v e o f f i c e r o f t h e Board of T r u s t e e s
of s a i d school d i s t r i c t ; t h a t s a i d school d i s t r i c t
h i r e d V.M. ( V i c ) Johnson f o r t h e s c h o o l y e a r
1974-1975 a s a s c h o o l i n s t r u c t o r f o r v o c a t i o n a l
a g r i c u l t u r e a s a non-tenure t e a c h e r .
"That s a i d s c h o o l d i s t r i c t n o t i f i e d M r . V. M.
( V i c ) Johnson, i n w r i t i n g , t h a t h i s employment
was t e r m i n a t e d on November 7 , 1974, d i s m i s s i n g him
on incompetency and u n f i t n e s s ; t h a t M r . V. M.
( V i c ) Johnson d i s c o n t i n u e d t e a c h i n g on November 7 ,
1974, and h a s n o t t a u g h t f o r t h e p l a i n t i f f s c h o o l
d i s t r i c t since.
"Mr. V. M. ( V i c ) Johnson a p p e a l e d t h e d e c i s i o n o f
t h e p l a i n t i f f school d i s t r i c t t o t h e Superintendent
of S c h o o l s o f P h i l l i p s County and s a i d County Super-
i n t e n d e n t of Schools issued n o t i c e of hearing t h e
a p p e a l , s e t f o r November 1 5 and t h e r e a f t e r gave
f u r t h e r n o t i c e c o n t i n u i n g t h e h e a r i n g t o December
1 9 , 1974; t h a t s a i d h e a r i n g was e n j o i n e d by t h e
temporary i n j u n c t i o n of t h i s C o u r t b e f o r e it w a s
held. "
A p p e l l a n t s c h o o l board a r g u e s t h a t under t h e 1972
Montana C o n s t i t u t i o n t h e s t a t u t o r y law p r o v i d i n g f o r h e a r i n g s
by t h e c o u n t y and s t a t e s u p e r i n t e n d e n t s i n c a s e s where t e a c h e r s '
c o n t r a c t s a r e a l l e g e d l y t e r m i n a t e d i l l e g a l l y h a s been done
away w i t h by t h e 1972 C o n s t i t u t i o n a l p r o v i s i o n s o f d i r e c t
a p p e a l t o t h e d i s t r i c t c o u r t under A r t i c l e V I I , S e c t i o n 4 ( 2 ) ,
1972 Montana C o n s t i t u t i o n .
A r t i c l e X , S e c t i o n 8 , 1972 Montana C o n s t i t u t i o n pro-
vides :
"School D i s t r i c t T r u s t e e s . The s u p e r v i s i o n and
c o n t r o l of s c h o o l s i n e a c h s c h o o l d i s t r i c t s h a l l
be v e s t e d i n a board of t r u s t e e s t o be e l e c t e d
a s p r o v i d e d by l a w . "
Article VII, S e c t i o n 4 ( 2 ) , 1972 Montana C o n s t i t u t i o n p r o v i d e s :
" ( 2 ) The d i s t r i c t c o u r t s h a l l h e a r a p p e a l s from
i n f e r i o r c o u r t s a s t r i a l s anew u n l e s s o t h e r w i s e
p r o v i d e d by law. The l e g i s l a t u r e may p r o v i d e f o r
d i r e c t r e v i e w by t h e d i s t r i c t c o u r t o f d e c i s i o n s
of a d m i n i s t r a t i v e agencies."
S t a t u t o r y p r o v i s i o n s concerned w i t h t h e d i s m i s s a l of
t e a c h e r s under c o n t r a c t a r e s e c t i o n s 75-6107, 75-5811 and 75-
5709, R.C.M. 1947, which p r o v i d e :
"75-6107. D i s m i s s a l of t e a c h e r under c o n t r a c t .
The t r u s t e e s o f any d i s t r i c t may d i s m i s s a t e a c h e r
b e f o r e t h e e x p i r a t i o n o f h i s employment c o n t r a c t
f o r i m m o r a l i t y , u n f i t n e s s , incompetence, o r v i o -
l a t i o n o f t h e a d o p t e d p o l i c i e s o f such t r u s t e e s .
Any t e a c h e r who h i s been d i s m i s s e d may i n w r i t i n g
w i t h i n t e n ( 1 0 ) d a y s a p p e a l such d i s m i s s a l t o t h e
county superintendent; following such appeal a
h e a r i n g s h a l l be h e l d w i t h i n t e n ( 1 0 ) d a y s . If
t h e county superintendent, a f t e r a hearinq, d e t e r -
mines t h a t t h e d i s m i s s a l by t h e t r u s t e e s w a s made
w i t h o u t good c a u s e , he s h a l l o r d e r t h e t r u s t e e s
t o r e i n s t a t e such t e a c h e r and t o compensate such
t e a c h e r a t h i s c o n t r a c t amount f o r t h e t i m e l o s t
d u r i n q t h e pendinq o f t h e a p p e a l . " (Emphasis
added.) (The emphasized p o r t i o n o f t h i s s t a t u t e
i s t h e portion challenged.)
"75-5811. C o n t r o v e r s y a p p e a l s and h e a r i n g s .
The c o u n t y s u p e r i n t e n d e n t s h a l l h e a r and d e c i d e
a l l m a t t e r s of controversy a r i s i n g i n h i s county
a s a r e s u l t o f d e c i s i o n s of t h e t r u s t e e s of a
d i s t r i c t i n t h e c o u n t y . When a p p e a l s a r e made
under s e c t i o n 75-6104 r e l a t i n g t o t h e t e r m i n a t i o n
of s e r v i c e s o f a t e n u r e t e a c h e r o r under s e c t i o n
75-6107 r e l a t i n g t o t h e d i s m i s s a l o f a t e a c h e r
under c o n t r a c t , t h e c o u n t y s u p e r i n t e n d e n t may
a p p o i n t a q u a l i f i e d a t t o r n e y a t law t o a c t a s a
legal adviser who shall assist the superin-
tendent in preparing findings of fact and con-
clusions of law. Subsequently, either the teacher
or trustees may appeal to the superintendent of
public instruction under the provisions for
appeal of controversies in this title. Furthermore,
he shall hear and decide all controversies arising
under :
"(1) section 75-6315 or 75-6316 relating to
the approval of tuition applications; or
"(2) any other provision of this title for
which a procedure for resolving controversies is
not expressly prescribed.
"The county superintendent shall hear the appeal
and take testimony in order to determine the
facts related to the controversy and may administer
oaths to the witnesses that testify at the hearing.
He shall prepare a written transcript of the hearing
proceedings. The decision on the matter of contro-
versy which is made by the county superintendent
shall be based upon the facts established at such
hearing.
"The decision of the county superintendent may be
appealed to the superintendent of public instruc-
tion and, if it is appealed, the county superintend-
ent shall supply a transcript of the hearing and
any other documents entered as testimony at the
hearing to the superintendent of public instruction."
"75-5709. Controversy appeal. The superintendent
of public instruction shall decide matters of con-
troversy when they are appealed from:
"(1) a decision of a county superintendent
rendered under the provisions of section 75-5811; or
"(2) a decision of a county transportation
committee rendered under the provisions of section
75-7015.
"The superintendent of public instruction shall
make his decision on the basis of the transcript
of the fact-finding hearing conducted by the county
superintendent or county transportation committee
and documents presented at the hearing. The super-
intendent of public instruction may require, if he
deems necessary, affidavits, verified statements,
or sworn testimony as to the facts in issue. The
decision of the superintendent of public instruction
shall be final, subject to the proper legal remedies
in the state courts. Such proceedings shall be
commenced no later than sixty (60) days after the
date of the decision of the superintendent of public
instruction.
"In order to establish a uniform method of hearing
and determining matters of controversy arising
under this title, the superintendent of public in-
struction shall prescribe and enforce rules of
practice and regulations for the conduct of hear-
ings and the determination of appeals by all
school officials of the state."
Issue 1. Appellant school board claims the 1972 Montana
Constitution grants control and supervision of the schools of
each district solely to the district boards of trustees and
that control is not to be shared with any other governmental
entity. On its face, this assertion is not accurate. ~rticle
X I Section 9 (3)(a), 1972 Montana Constitution provides:
"There is a board of public education to exer-
cise general supervision over the public school
system and such other public educational insti-
tutions as may be assigned by law. Other duties
of the board shall be provided by law."
Appellant claims that whatever control that is shared
with the board of public education does not apply to county or
state superintendents.
The fundamental purpose of construing a constitutional
provision is to give effect to the intent of its framers and
the people who adopted it. State ex rel. Toomey v. State Board
of Examiners, 74 Mont. 1, 238 P. 316, 320 (1925). The rule is
well established that, in construction of a constitution, re-
course may be had to proceedings of the constitutional conven-
tion. 16 Am Jr 2d, Constitutional Law 5 88; Board of Public
Education v. Judge, Mont . , 538 P.2d 11, 14, 32 St.Rep.
670 (1975). From a reading of the Convention transcripts, it
is clear the delegates contemplated only a preservation of the
powers of the local boards of trustees, not an expansion of
those powers. In the Transcript of Proceedings, 1972 Montana
Constitutional Convention, Vol. VIII, page 6259 Delegate Champoux
stated:
* * * no matter what we say, perhaps, they'd
I'
still have that fear that the local school dis-
tricts are going to lose some control and some
power. And if you will note in my remarks when
we get to nine, ten, and eleven, you will note
that we have eliminated the word, control in
the new public board of education where it is in
the old Constitution, and only use the word,
supervise. By this amendment the intent is shown,
I think, that this body does want local control
to remain with the local school districts and
I heartily support it." (Emphasis supplied.)
Delegate Heliker, at p. 6258, iterated:
" * * * Now, this committee has not provided, I
notice, for autonomy in the Constitution for local
school-boards althoLgh that autonomy is provided
in the statutes which make the local school boards
bodies corporate. At the same time, however, the
committee proposal in section eleven provides for
autonomy to a certain extent for the board of
regents which they propose to establish as a con-
stitutional board; and I feel, therefore, that
we should give constitutional recognition and status
to the local boards to--first of all, to allay the
fears which have been expressed, which I think are
well founded concerning the preservation of local
autonomy and, secondly, to give parallel treatment
to the governing boards of the public schools as
well as the public universities and colleges."
(Emphasis supplied.)
The only other delegate to speak on the section simply
urged the local school boards be given constitutional status.
From the underscored material, it appears the delegates were
chiefly concerned with the preservation of existing local board
control and power--not with expansion of local control and power.
The delegates wished to insure that the state legislature would
not strip the local boards of their powers.
Given this analysis, an examination of the authority
local boards possessed at the time of the convention becomes
important. The Montana Supreme Court decided very early that
a school district was a public corporation with limited powers,
exercising through its board only such authority as is conferred
by law, either expressly or by necessary implication. Finley
v. School District No. 1, 51 Mont. 411, 415, 153 P. 1010 (1915);
State ex rel. School District No. 4 v. McGraw, 74 Mont. 152, 240
P. 812 (1925). Local boards of trustees have always been held
subject to legislative control. Woolsey v. Carney, 141 Mont.
476, 378 P.2d 658 ( 1 9 6 3 ) ; A b s h i r e v . School D i s t r i c t , 1 2 4
Mont. 2 4 4 , 220 P.2d 1058 ( 1 9 5 0 ) ; Wyatt v . School D i s t r i c t No.
; 09
.4-& 148 Mont. 83, 417 P.2d 221, 22 ALR3d 1039 (1966) ; Team-
sters E t c . Local No. 45 v . Cascade County School D i s t . No. 1,
162 Mont. 277, 511 P.2d 339 ( 1 9 7 3 ) . I n A b s h i r e , f o r example,
t h e C o u r t h e l d t h a t a l o c a l board of t r u s t e e s c o u l d n o t impose
a mandatory r e t i r e m e n t a g e t h a t d i f f e r e d from s t a t e s t a t u t e .
Wyatt h e l d t h a t , by f a i l i n g t o f o l l o w t h e s t a t u t e s i n d i s m i s s -
i n g a t e a c h e r , t h e b o a r d ' s d i s m i s s a l w a s v o i d f o r want of j u r i s -
diction. S t a t u t o r y v a c a t i o n b e n e f i t s were extended t o n o n c e r t -
i f i e d s c h o o l d i s t r i c t employees i n Teamsters Local No. 45. Thus,
l o c a l b o a r d s have been h e l d s u b j e c t t o s t a t u t o r y r e q u i r e m e n t s - -
a l t h o u g h t h e C o u r t h a s h e l d t h a t where t h e l e g i s l a t u r e h a s
f a i l e d t o p r e s c r i b e p o l i c y , t h e l o c a l b o a r d s have i n f e r r e d
g e n e r a l powers t o a c t . Campana v. C a l d e r h e a d , 17 Mont. 548,
4 4 P. 83, (1896).
The s t a t u t e s i n q u e s t i o n w e r e i n e x i s t e n c e a t t h e t i m e
t h e c o n s t i t u t i o n a l a r t i c l e was a d o p t e d b y - t h e c o n v e n t i o n and
were a v a i l a b l e f o r c o n s i d e r a t i o n o f t h e c o n v e n t i o n . Further,
a l o n g series of c a s e s d e c i d e d p r i o r t o t h e c o n v e n t i o n had
c o n s i s t e n t l y upheld t h e a p p e a l s p r o c e d u r e . S t a t e e x r e l . School
D i s t r i c t v . Trumper, 69 Mont. 468, 222 P. 1064 ( 1 9 2 4 ) ; Kelsey v .
School D i s t r i c t No. 25, 84 Mont. 453, 459, 460, 276 P. 26 ( 1 9 2 9 ) ;
P e t e r s o n v . School Board, 73 Mont. 4 4 2 , 236 P. 670 ( 1 9 2 5 ) ; S t a t e
ex r e l . S a x t o r p h v . D i s t r i c t C o u r t , 128 Mont. 353, 275 P.2d
209 ( 1 9 5 4 ) ; S t a t e e x r e l . McDonnell v . Musburger, 1 1 Mont. 579,
1
1 1 P.2d 1038 ( 1 9 4 1 ) .
1 Kelsey and S a x t o r p h s p e c i f i c a l l y i n v o l v e d
a p p e a l s from t e r m i n a t e d c o n t r a c t s . I n t h e s e c a s e s t h e Court
refused t o take j u r i s d i c t i o n over t h e matter unless t h e appeals
p r o c e s s had been e x h a u s t e d . A s t h e C o u r t s a i d i n Kelsey:
"From t h e a c t i o n o f t h e board i n d i s c h a r g i n g
the plaintiff she had a plain, speedy and adequate
remedy--by appeal first to the county superinten-
dent, and having been unsuccessful in that, to
the superintendent of public instruction. * * *
" * * * The upshot, then, is * * * that the plain-
tiff had a plain, speedy and adequate remedy by
appeal to the school officers, .in whom the law
reposes, by reason of their special fitness to
decide, the duty of settling the controversy,
which remedy the plaintiff did not exhaust * * *'
.I
Thus, when the constitutional convention acted to preserve
the existing power of the local boards of trustees, that power
had already been limited by the statutes in question and the
court affirmation of the statutes. Whether or not the statutes
would have been constitutional if enacted after the Constitution
was adopted is a question not decided here.
Issue 2. Appellant contends that Article VII, Sec-
tion 4 ( 2 ) provides that review of board of trustee decisions
be made only in the district court and, therefore, any reviews
by other governmental units are unconstitutional. Article VII,
Section 4 (2) provides :
"The district court shall hear appeals from
inferior courts as trials anew unless other-
wise provided by law. The legislature may
provide for direct review by the district
court of decisions of administrative agencies."
(Emphasis supplied. )
The use of the word "may" indicates the provision is
permissive. The legislature has - adopted legislation pur-
not
suant to the section providing for appeal to the district
court from the school board. The only legislation dealing with
appeals from school board decisions provides for appeal through
the county and state superintendents. Appellant's argument is
therefore without merit.
Further, to adopt appellant's argument, the local
boards of trustees would have to be recognized as separate ad-
ministrative agencies, distinct from the rest of the educational
administrative structure. As previously mentioned, the Montana
Supreme Court has consistently viewed the local boards as part
of the administrative structure and held that appeals directly
from the local boards will be rejected because administrative
remedies were not exhausted. See: Trumper; Kelsey; Peterson;
Saxtorph; and McDonnell. On the other hand, the Court has
held that decisions by the State Superintendent of Public In-
struction are reviewable by the courts. Potter v. Miller, 145
Mont. 197, 399 P.2d 994 (1965).
In Montana, there has traditionally been a reluctance
on the part of the courts to intervene in educational decision
making. As the Court stated in Kelsey:
"It is unquestionably the policy of this state,
as declared by the legislative assembly, that
ordinary school controversies shall be adjusted
by those who are specially entrusted with that
duty. It is not the policy to encourage resort
to the courts in such matters. So long as the
school officers act legally and within the power
expressly conferred upon them the courts will not
interfere."
Adoption of appellant's contention would be contrary
to this policy.
There is no doubt the local boards of trustees are sub-
ject to legislative control and do not have control over the
local schools to the exclusion of other governmental entities.
AS the Court stated in Jay v. School ~istrictNo. 1, 24 Mont.
219, 225, 61 P. 250 (1900), it is not for the courts to say
whether the provisions of the statute are wise or not; the duty
of the courts is to require enforcement thereof as they find it.
Whether or not the statutory provisions constitute an exercise
of sound policy decision making is not at issue here. What is
at issue is whether or not the legislature had the power to
enact the statutes in controversy. In this case, the answer is
affirmative.
The judgment of the district court is affirmed.
Hon. W. W. ~ e s s l e ~District Judge,
, 1
sitting in place of Mr. Chief Justice
James T. Harrison.
Hon. E. Gardner Brownlee, District
Judge, sitting in place of Mr. Justice
Wesley Castles.