Mr. JUSTICE CRAVEN,
dissenting:
I cannot agree with the majority opinion either as to result or reasoning. The opinion seems to me to be internally inconsistent and basically legislative in character.
In Illinois, a teacher is paid according to contract terms agreed to and if new terms are not agreed to, then a teacher on tenured status continues to serve on the basis of the preceding year’s contract. In this case, there is no indication that there was a contract for the 1979-1980 school year. I find no indication or basis in the record for the assumption in the majority opinion that the salary for the 1979-1980 school year was greater than that of the preceding year.
In any event, this record tells us that the plaintiff-teacher began teaching duties on August 27, 1979. It was not until the middle of September that the school board gave him notice of its “policy” that purported to require the payment of liquidated damages in the event a teacher terminated during the school year. That policy somehow or another is engrafted upon the new contract or the extension of the old contract, whichever is applicable. Terms and conditions of a contract are ordinarily mutually agreed, not unilaterally imposed.
We do not have the question of whether liquidated damages for termination can be imposed as part of a contract under the authority to fix salaries. Rather, we have a school board imposing a policy on existing contracts without authority, and, as I indicated, by unilateral action.
The opinion is internally inconsistent in that it says on the basis of cited cases that an agreement fixing damages for breach of contract must be reasonable as to damages and bear some relationship to the harm caused by the breach. Ascertaining that is, of course, a condition precedent to enforcement of the liquidated damages provision. The majority opinion verbalizes approval of that and finds no difficulty in this case. Later in the opinion, the majority indicates that the fact that the liquidated damage provision has no objective standards for determining “extenuating circumstances,” that it was adopted only 21 days before school began, that it applies to teachers without reference to date of resignation, and that it gives a resigning teacher no procedural rights suggests its invalidity. These arguments in opposition to the liquidated damage provision are at least found to be “quite appealing” had they been properly preserved for appeal. They are preserved for appeal. Indeed, if any of those conditions exist, and they all do, the provision is invalid and unenforceable. The majority, however, finds the liquidated damage provision valid and concurrently the arguments against it quite appealing.
I understand the law of this State to be that a board of education does not have general governmental powers but rather it has only such powers as are legislatively granted to it. Beaver Glass & Mirror Co. v. Board of Education (1978), 59 Ill. App. 3d 880, 376 N.E.2d 377. The legislature by section 24 — 14 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 14) made provision for sanctions in the event that a teacher breached a contract by resignation during the school year. That sanction, legislatively provided, makes a teacher liable for suspension of the teaching certificate for a period not to exceed one year. If the teacher’s conduct here offends that statute, the board’s remedy, by law, is found in that provision. If such remedy is inadequate or without realistic meaning, the remedy lies in legislation.
The recent case of Bond v. Board of Education (1980), 81 Ill. 2d 242, 408 N.E.2d 714, does hold that a school board’s authority with respect to teachers’ salaries is subject only to limits expressly fixed by the School Code or to constitutional proscriptions against arbitrary, discriminatory and unreasonable conduct. This “policy” for liquidated damages is based upon an improper classification and is discriminatory. It imposes the same sanction on a teacher that quits during the first week of the year as that imposed upon a teacher who may resign at or near the end of the year.
Finally, I do not share the view expressed by Mr. Justice Mills in the majority opinion that there is any infirmity in the stipulation procedure or its content. Agreed statements of fact or stipulations are a commendable way of getting issues before courts and should be encouraged, not criticized.