Relatrix began this action to mandate the school board of the city of East Chicago to reinstate her as a permanent teacher in the public schools of that city. There was a trial, special findings of fact, conclusions of law, and judgment in favor of relatrix.
Error is assigned upon the conclusions of law.
Having served under contract as a teacher for five years, relatrix, in June, 1930, entered into a written contract with the school board under which she became a tenure teacher. On May 10, 1923, the board adopted a resolution to the effect that married women would not thereafter be employed as teachers, and relatrix' contract for the year 1927, and all subsequent contracts, contained a provision that, in the event she should be dismissed "for incompetency, cruelty, gross immorality, neglect of business, marriage (if woman), or violation of any of the stipulations of this contract," she should *Page 597 not be entitled to compensation after notice of dismissal. It was further provided in the contract: "Said teacher agrees . . . to observe all rules and regulations of the properly constituted school authorities." On August 5, 1930, relatrix married. Pursuant to notice and statement of reasons given relatrix, the board, at a hearing held on October 22, 1930, considered the question of the cancellation of relatrix' contract, and made a finding that: "Alice Velcheck, now Mrs. Alice Sigler, has violated the terms of her contract and the rules of the Board of Education by her marriage." The board then, upon motion, canceled her contract, and, on October 27, 1930, notified her of its action.
Appellants contend that the judgment is erroneous for two reasons: (1) That the Teachers' Tenure Act is unconstitutional in that it violates article 1, § 23, of the Constitution of Indiana; and (2) that relatrix's marriage constituted a violation of a reasonable rule which the board had the power to adopt, and a breach of a contractual obligation which the parties had the power to make.
The Teachers' Tenure Act has been upheld by this court as not in violation of article 1, § 23, of the Constitution of Indiana, in a number of cases in which the question was carefully considered, and no reason is seen for a change of view in respect to that question. School City of Elwood v. State ex rel.Griffin (1932), 203 Ind. 626, 631, 180 N.E. 471, 473, 81 A.L.R. 1027; Ratcliff v. Dick Johnson School Twp. (1933),204 Ind. 525, 185 N.E. 143; Kostanzer et al. v. State ex rel. Ramsey (1933), 205 Ind. 536, 187 N.E. 337; Brumfield, Trustee v.State ex rel. Wallace (1934), 206 Ind. 647, 190 N.E. 863.
In School City of Elwood v. State ex rel. Griffin, supra, it was held that the marriage of a woman teacher of itself does not constitute "good and just cause" for cancellation of a tenure teacher's indefinite contract, and, *Page 598 since that time, the question has been decided upon authority of that case. In Kostanzer et al. v. State ex rel. Ramsey,supra, the decision was based entirely upon the former case, but it was recognized that if marriage were a sufficient ground for canceling the contract it would be a sufficient basis for an enforceable rule, the violation of which might be the basis for a cancellation of the contract. In the case at bar we have not only a rule against marriage, but a recognition of the rule in the contract itself which contemplates a dismissal upon marriage.
The frequency with which the question has arisen in this and other jurisdictions has prompted a re-examination of the question and of the reasons and authorities relied upon.
In School City of Elwood v. State ex. rel. Griffin, supra, it is said that (p. 631): "The Teacher's Tenure Law specifically enumerates the causes for which a teacher may be removed or dismissed." That: "Where the statute specifically enumerates the causes for which a teacher may be removed or dismissed, the teacher cannot be removed or dismissed for any other cause." A number of cases are cited to support this proposition of law, and an examination discloses that in all of the cases the legislative provision did expressly enumerate and limit the causes for which a teacher might be dismissed. See Kennedy v. San Francisco Bd.of Education (1890), 82 Cal. 483, 22 P. 1042; Butcher v.Charles (1895), 95 Tenn. 532, 32 S.W. 631; Courtright v.Mapleton (1927), 203 Iowa, 26, 212 N.W. 368; Custer v.School District of Borough of Prospect Park (1899), 12 Pa. Super. 102; Jameson v. Union Dist. Board (1914), 74 W. Va. 389, 81 S.E. 1126; People v. Maxwell (1904), 177 N.Y. 494, 69 N.E. 1092; State ex rel. v. School Directors (1923),179 Wis. 284, *Page 599 191 N.W. 746, 747; Blair v. United States ex rel. (1916), 45 App. D.C. 353.
But the causes for dismissal are not so limited in the Teachers' Tenure Statute in this state. The statute, section 28-4308 Burns' Ann St. 1933, section 6004 Baldwin's 1934, 1. provides that: "Cancellation of an indefinite contract of a permanent teacher may be made for incompetency, insubordination, . . . neglect of duty, immorality, justifiable decrease in the number of teaching positions or other good and just cause, but may not be made for political or personal reasons." In other words, a teacher's contract may be canceled without any showing of incompetency, insubordination, neglect of duty, immorality, or justifiable decrease in the number of teaching positions, if there is "other good and just cause," and the dismissal is not for "political or personal reasons." It is clear therefore that, unless the words, "other good and just cause," are ignored, which is not permissible, there is authority to dismiss for other causes than those specifically enumerated in the statute. It must also follow that jurisdiction and discretion to determine what these causes may be is in the school authorities, limited only by the provision that they must be good and just causes, and that dismissal may not be for political or personal reasons. The opinion goes further and says that (p. 631): "The appellants admit that they did not take the action complained of because of the `incompetency, insubordination . . . neglect of duty, (or) immorality' of the teachers involved, nor because of `justifiable decrease in the number of teaching positions' but contend that their action was properly and lawfully taken under the remaining ground stated in the statute, viz., `other good and just causes,' i.e. a cause which bears a reasonable relation to the specific causes enumerated. If a teacher, *Page 600 after marriage, becomes inefficient, impaired in her usefulness, neglectful or otherwise incapable of performing her duties as a teacher in a proper manner, then good reason — `other good and just cause' — would exist for her dismissal; but marriage in itself (in the absence of a statutory provision to the contrary), does not constitute a good and just cause (as provided in the teachers' tenure law) for the discharge of a teacher. Marriage as an institution involves no element of wrong, but, on the contrary, is protected, encouraged and fostered by a sound public policy. The arbitrary determination of the school board that the marriage of women teachers . . . was `good and just cause' for their removal is, as a matter of law, declared to be erroneous and invalid. Richards v. School Dist. (1916), 78 Or. 621, 153 P. 482, 485, L.R.A. 1916 C, 789, Ann. Cas. 1917D, 266." But it is clear that anything which would cause a teacher to become incompetent, insubordinate, neglectful of duty, or immoral is covered by those specific causes for cancellation of a contract, and if "other good and just cause" is limited to such matters as result in incompetency, insubordination, neglect of duty, or immorality, the words are mere surplusage, whereas the well-established rules of construction require that they be given effect if that is reasonably possible.
The Oregon Case relied upon holds that, if the contract stipulating that marriage should be a cause for dismissal is valid, the board cannot dismiss without complaint, notice, and hearing, which were not given the teacher, and that: "The views herein expressed might be sufficient to dispose of the instant case, but we prefer to proceed with the inquiry and determine whether the single fact of marriage can, in advance and alone, be said to be a reasonable cause for dismissal. . . . If a teacher becomes inefficient or fails to perform a duty, or does some act which of itself impairs *Page 601 usefulness, then a good or reasonable cause for dismissal would exist." This is followed by a discussion of the question of whether or not marriage necessarily decreases or impairs usefulness or efficiency, and the conclusion that: "If a teacher is just as competent and efficient after marriage, a dismissal because of marriage would be capricious." The case seems to stand alone in holding that, as a matter of law, marriage is not a legal ground for dismissal where there is discretion vested in the school authorities to dismiss for just and good cause. It clearly appears that the conclusion was arrived at upon the theory that marriage does not necessarily affect the efficiency and usefulness of the teacher, and that there are no other considerations which may enter into the question.
But there may be other considerations. The school system is not an end in itself. It is but a means of advancing the general welfare. The schools are intended to serve the community, and are but one instrumentality designed to that end. The local school authorities are vested with broad discretionary powers in the management of schools. They are free to adopt policies which are not in conflict with the statute, and no reason is seen why they may not look to the general welfare of the community, as well as to the welfare of the school, in matters affecting school policy. The schools are dependent upon the local community for support, and the welfare and prosperity of the school system is necessarily linked to the welfare and prosperity of the community. If there are unmarried, qualified teachers, residents of the community, who are unemployed, and who may be driven to leave the community and reside elsewhere if they are not employed locally, it is a matter of interest to the community, and therefore to the school system of the community. Local school authorities are elected locally and their policies will normally reflect the will *Page 602 of the community. In the first instance the school authorities are perfectly free to exercise their discretion as to who shall be employed, and to select men or women, married or single, teachers, as in the board's discretion seems best. It was held inGuilford School Tp. v. Roberts (1902), 28 Ind. App. 355, 62 N.E. 711, that the contract of a teacher, procured upon the fraudulent representation that she was single and did not intend to marry, was void if she was in fact married at the time it was made. It is well settled that, to avoid a contract for false or fraudulent representation, the representation must concern a material fact affecting the rights of the parties. If marriage is a matter that the school authorities may not take into consideration in employing teachers, if it cannot in any way affect the school or community, if it is an entirely irrelevant and immaterial matter, the decision was wrong. But we do not think so. It cannot be questioned that, in selecting teachers, school authorities may properly choose citizens of the United States as against aliens, and residents of this state as against non-residents. It cannot be doubted that a provision in the contract of a tenure teacher, conforming to a rule or policy adopted by the school authorities, providing that the contract may be terminated if the teacher became a non-resident of the United States, or of the state of Indiana, or of the city or school district, would be enforced. Such a rule and policy might well be sustained in reason, although all might not agree upon the policy. Advantage might be seen in the teacher living among the parents and patrons of the school, and thus absorbing the atmosphere of the community in which the children must grow up, and acquiring a better understanding of the problems to be met by the school. Other matters of public policy might properly be considered as not arbitrary or capricious.
In Short v. Poole Corporation (1924), 1 Ch. 66, the *Page 603 English Court of Appeals had under consideration the right of school authorities to cancel the contract of a teacher because of marriage. The facts and the decision reached are well summarized in the syllabus:
"The defendants, the Local Education Authority, in pursuance of a report of their Education Committee, decided that the retention of married women teachers in their public elementary schools was inadvisable, and gave the plaintiff, a married woman teacher, notice to terminate her engagement, after satisfying themselves that her husband was able to maintain her. The plaintiff had, while unmarried, been appointed in 1914 assistant mistress of one of the defendant's schools, and was admittedly an efficient teacher. In a letter to the managers of the non-provided schools of the district announcing the decision of the Education Committee, and expressing a hope that the managers would take similar action, it was stated that the Committee were led to their decision for the following reasons: (1.) They considered the duty of the married woman was primarily to look after her domestic concerns, and they regarded it as impossible for her to do so and to act effectively and satisfactorily as a teacher at the same time; and (2.) that it was unfair to the large number of unmarried teachers who were at present seeking situations that the positions should be occupied by married women who presumably had husbands capable of maintaining them. The plaintiff sought a declaration that the notice was invalid, and an injunction restraining the defendants from acting upon it:
"Held (reversing the decision of Romer J.), that the plaintiff had failed to establish that the defendants had taken into account matters other than those which belonged to their educational sphere; that neither their decision nor either of the reasons upon which it was alleged to be founded was alien or irrelevant to the *Page 604 maintenance of the efficiency of the public elementary schools or the cause of education in the district; that their willingness to make concessions in cases of grievious hardships did not invalidate their policy of maintaining educational efficiency; and that as the defendants had acted bona fide and within their statutory powers, the Court would not interfere."
The same view was taken in two other cases, Fennell v. EastHam Corporation (1924), 1 Ch. 641, and Price v. Rhondda UrbanDistrict Council (1922), 2 Ch. 372.
In Ansorge v. Green Bay (1929), 198 Wis. 320, 325, 224 N.W. 119, 121, the Supreme Court of Wisconsin said that: "In the selection of teachers a board like the one herein of necessity must be and ordinarily is clothed with a broad power of discretion. It may be conceded that a married teacher can ordinarily perform her duties as satisfactorily as an unmarried one, but the board is charged with a duty which requires it to promote the public interests. On a policy such as is manifested in the instant case there may be a wide difference of opinion. Many circumstances may exist with reference to a particular school which might lead to the belief that a male teacher would be more suitable for employment than a female teacher. On the other hand, the same may be said with respect to married and unmarried teachers. In the employment of teachers the board must be and ordinarily is vested, as is heretofore said, with a wide discretion, and when such discretion is exercised in good faith and is not contrary to law, the exercise of such discretion should not be interferred with or controlled by the courts."
In Rinaldo v. Dreyer (Mass. Sup. 1936) 1 N.E.2d 37, the most recent case involving a tenure teacher's contract, the Supreme Court of Massachusetts said (p. 38):
"The primary question to be decided is whether if a school committee has adopted a policy forbidding the employment of married women teachers, the marriage *Page 605 of a woman teacher can be found to be `good cause' for dismissal" under a statute which "provides that a teacher employed at discretion `shall not be dismissed, except for inefficiency, incapacity, conduct unbecoming a teacher . . . insubordination or other good cause.' We think the answer must be in the affirmative.
"`Good cause' for dismissal in a statute of this kind is by no means limited to some form of inefficiency or of misconduct on the part of the person dismissed. . . . Such matters are amply covered by the words which precede `good cause.' Good cause includes any ground which is put forward by the committee in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the committee's task of building up and maintaining an efficient school system. (Authorities.)
"If the cause assigned is at least fairly debatable and is asserted honestly, and not as a subterfuge, that is enough. Whether or not married women should teach in public schools is a matter about which there may be an honest difference of opinion. We need not elaborate the possible arguments. It is enough to say that reported decisions in various jurisdictions show that many local school boards in widely scattered parts of this country and in England have taken the same attitude which the respondents here take. The committee have `general charge' of the public schools in Revere. . . . It is for them and not for the court to determine matters of policy. We are aware that some courts have come to the opposite conclusion, but we find ourselves unable to agree with them."
To the same effect, see Masten v. Maxwell, Superintendent ofSchools (1903), 83 N.Y. Sup. 1089, and Backie v. CromwellConsol. Dist. No. 13 (1932), 186 Minn. 38, 242 N.W. 389. The judges dissenting in the last case cited, concurred in this view, but dissented upon another point. *Page 606
It thus appears that the great weight of authority supports the view that, where the action is taken pursuant to a policy adopted in good faith, marriage is a good and just cause for the 2. cancellation of a tenure teacher's contract when the contract is made with specific reference to, or with full knowledge of, the rule or policy. Sound reason supports this view, and it must be concluded that this court has been resting in error. The case of the School City of Elwood v. State exrel Griffin, supra, in so far as it is in conflict with the views here expressed, is overruled. The subsequent cases dealing with the question were decided upon authority of that case.
Judgment reversed, with instructions to restate the conclusions of law, and enter judgment for appellants.
Treanor, J., dissents.