DISSENTING OPINION The trial court's conclusions of law 3 and 4 were as follows:
"3. That the rule and regulation and resolution adopted by the Board of Education on the 10th day of May, 1933, which provided that married women would not be employed as teachers in said school system was void and unreasonable under the law applicable to permanent teachers with indefinite contracts and was unenforcible as against relatrix.
"4. That any provision inserted in the contract between the School City of East Chicago, Indiana, and the realtrix mentioned in Finding No. 6 herein which provided that said contract would be void or would operate as a termination of the indefinite contract between the realtrix and said School City if said realtrix should marry, was void and unlawful."
The foregoing conclusions of law present to this court the following questions: (1) Does marriage by a female teacher who is a permanent teacher under an indefinite *Page 607 contract constitute good and just cause for cancellation of her contract. (2) If such marriage is not of itself a good and just cause for cancellation can it become such by reason of the school board's adopting a rule prohibiting marriage by female teachers, and by providing as a term of the contract that such marriage should operate as a termination of the indefinite contract.
In School City of Elwood et al. v. State ex rel.Griffin,1 this court held that marriage of a woman teacher, in and of itself, does not constitute "good and just cause" for the cancellation of an indefinite contract. In Kostanzer v.State ex rel. Ramsey2 it was held that "a rule forbidding marriage of a woman teacher or declaring that her marriage must `automatically terminate her services as a teacher' is not a reasonable rule" for the reason that "marriage bears no reasonable relation to her fitness or capacity to hold the position of teacher in the public schools and to discharge the duties thereof."
Under the authority of the two foregoing cases, the trial court's conclusions of law were correct. It is true that in the instant case the relatrix's contract provided that marriage by her would operate to terminate her contract; but it cannot be within the legal power of a school board, by the simple expedient of a rule and a contract provision, to create "a good and just cause" for cancellation of a teacher's contract out of a fact which as a matter of law, is not a "good and just cause." Consequently, the reasoning and results of the City of Elwoodand Kostanzer cases are repudiated by the conclusion of the court in the instant case that "where the action (i.e. cancellation) is taken pursuant to a policy adopted in good faith, marriage is a good and just cause for the cancellation of a tenure teacher's contract when *Page 608 the contract is made with specific reference to, or with full knowledge of, the rule or policy."
The majority opinion assumes that this court, in City of Elwood, ignored the effect of the statutory language "other good and just cause" and improvidently relied upon cases decided under statutes which recited only certain specific causes. A superficial examination of the opinions in the two cases reveals the inaccuracy of that assumption. These cases rested upon a rule of statutory construction and a legal standard, both of which have been recognized and approved by this court. In City of Elwood this court construed the phrase "other good and just cause" to include only causes which bore "a reasonable relation to the specific causes enumerated."3 This limitation of the effect of "other good and just cause" was in harmony with the so-called ejusdem generis rule, which was summarized as follows in Yarlott v. Brown:4 "A familiar rule of statutory construction is that, where words of specific and limited signification in a statute are followed by general words of more comprehensive import, the general words shall be construed to embrace only such things as are of like kind or class with those designated by the specific words, unless a contrary intention is clearly expressed in the statute"; and which was given effect in that case by the following statement: "When the language of the statute under consideration is tested by this rule it becomes obvious that the `other written contracts for the payment of money' referred to in the fifth clause, after mentioning promissory notes and bills of exchange, include drafts, letters of credit, checks, acceptances, duebills, bonds, and all personal obligations which merely bind the maker to pay money, of the same general character as promissory notes and bills of exchange; but that the *Page 609 words are not used in their most comprehensive sense."
So in City of Elwood this court believed that the words "other good and just cause" were not used by the General Assembly "in their most comprehensive sense," but only to include such things as are of like kind and class with those designated by the specific words "incompetency, insubordination, neglect of duty (or) immorality . . ." No contrary legislative intention is found in the provisions of the Tenure Act; and the general spirit and policy of the Act is against construing "other good and just cause" to include any cause that does not relate to the teacher's capacity to properly satisfy the requirements of his position.
Furthermore, I think the reasoning in City of Elwood was supported by decisions cited therein. It is true that decisions were relied upon which held that when a tenure statute enumerates certain specific causes for termination of tenure no other cause can constitute legal cause. When this court, as a preliminary matter, decided that "other good and just cause" included only causes which bore a reasonable relation to the specified causes, certainly the decisions in question were properly relied upon as authority for eliminating from consideration all causes except those enumerated, and others which bore a reasonable relation thereto.
An essential element of our decisions in the City of Elwood and Kostanzer cases was the judicial definition of "legal cause" which had been announced by this court in decisions long prior to those cases. In the case of State ex rel. Manning v.Mayne,5 decided by this court in 1879, the question of what constituted legal cause was presented to this court in connection with the controversy over the removal of a Warden of the Northern Indiana State Prison. A section of the act which related to the management of the prison authorized the directors *Page 610 to elect a warden who should "hold his office for the term of four years unless sooner removed by the directors for cause . . ." This court assumed that cause meant "legal cause," and defined it as follows: "The cause must be one amounting to malfeasance in office, or showing that he has not, in some particular, faithfully and impartially discharged his duties as warden; and certainly, as it seems to us, the cause for removal must be founded on some matter or thing done, or omitted to be done, by the warden, in reference to which the law has given the directors the right and power to supervise, control and enforce the acts of the warden."
In the case of Roth v. State ex rel. Kurtz6 this court commented as follows on "legal cause": "This statute declares in general terms that the removal must be for cause, and this, as the authorities affirm, necessarily and reasonably implies that the cause intended is to be some dereliction or general neglect of duty, or some delinquency affecting the general character of the officer, or his fitness for holding the office, or his incapacity to discharge his duties thereof. Mechem on Public Officers, § 457; People v. Fire Commissioners, 72 N.Y. 445;People v. Fire Commissioners, 73 N.Y. 437."
In State ex rel. Felthoff v. Richards,7 this court had occasion to consider the legal standard to be applied for the purpose of determining whether legal cause existed, and reaffirmed the doctrine of the cases of State ex rel. Manning v. Mayne, supra, and Roth v. State ex rel, supra, in the following language: "Any one of common understanding knows that the General Assembly intended to stop the indiscriminate dismissal of firemen and policemen each time there should be a change in political control of the city administration. To give effect to this purpose the statute requires that a dismissal *Page 611 must be for cause; and to further protect the person under charges he is entitled to have a hearing and to have `the written reason for such removal' entered upon the records of the board. The statute forbids `politics' being considered a `cause'; and under the decisions of this court no `cause' is a legal cause unless it bears a reasonable relation to the policeman's or fireman's `fitness for holding the office, or his incapacity to discharge the duties thereof'."
In School City of Elwood v. State ex rel. supra, this court held that "other good and just cause" embraced only causes which bear a "reasonable relation to the specific causes enumerated," that is incompetency, insubordination, neglect of duty, or immorality. This necessarily reaffirmed the doctrine of the earlier cases that a cause, within the meaning of "good and just cause" must be some dereliction or general neglect of duty, or some delinquency affecting the general character of the officer, or employee or his fitness for holding the office, or his incapacity to discharge his duties thereof.
In Kostanzer v. State ex rel., supra, this court restated its adherence to the legal test of "cause" which had been announced in the previous cases, and expressly held that marriage of a female teacher did not constitute good and just cause for cancellation, and that the local school board was without power to make it a good and just cause by adopting a rule which forbade marriage. In that case it was stated that: "The reason for our holding in School City of Elwood v. State ex rel. Griffin,supra, that marriage of a woman teacher is not legal cause for cancellation of her contract is that her marriage bears no reasonable relation to her fitness or capacity to hold the position of teacher in the public schools and to discharge the duties thereof."
The foregoing decisions had firmly and definitely established a legal standard which was binding upon all *Page 612 courts of this state as a test of "cause" for termination of a legally protected tenure of public office or employment. A legal standard is as much a part of the body of our law as are rules and principles. The legal standard which is applied to determine whether certain conduct constitutes negligence is as definitely a part of the law of negligence as is the rule of law that contributory negligence defeats the plaintiff's cause of action. And the legal standard for the determination of legal cause, in tenure cases, has been as definitely fixed by our judicial decisions as has the standard for negligence. Consequently, since the General Assembly used the language "other good and just cause" it adopted as the test for "cause" the legal standard declared by this court. When the General Assembly uses words or phrases which have received a construction by this court such construction is enacted into the statute unless a different intent clearly is disclosed. Therefore, the actual result of the majority decision is not only to nullify a long line of decisions of this court, but also to amend the Teachers' Tenure Act of 1927.
The following statement is found in the majority opinion: "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 fallacy in *Page 613 the foregoing statement is the assumption that "other good and just cause" would be ignored unless "other good and just cause" includes something more than, and different from, the specifically enumerated causes.
But in the City of Elwood and Kostanzer Cases, supra, this court did not ignore the language in question, but gave it what the court considered its proper legal effect. It is true, as pointed out in the case of Strange v. Board8, that the rule of ejusden generis does not apply when the prior or specific words exhaust the class, for there is nothing for the remaining terms to qualify. In that case it was urged that the rule of ejusdem generis should be applied, and that the phrase "other road paving material" should be held to refer to the prior words "stone" or "gravel," and limit the material on country roads to stone or gravel or like material. This court properly disposed of this contention in the following language: "Here the words `stone' and `gravel' entirely exhaust each class, and unless the remaining words mean something else, they can mean nothing, which will not be imputed to them, if avoidable, and we place our decision in this respect upon the ground that the phrase `other paving material' necessarily means something other than either stone or gravel, and that the legislature intended giving to the localities an opportunity to use such materials as were necessary or best suited to the end to be attained."
But it can not be true in fact that the specifically enumerated types of causes, viz., incompetency, insubordination, neglect of duty, and immorality, embrace all types of personal disqualifications which would justify cancellation of a teacher's contract. The specific terms incompetency, neglect of duty and immorality have a well understood and limited meaning, and insubordination is defined in the Teachers' Tenure Act as *Page 614 "a wilful refusal to obey the school laws of this state or reasonable rules prescribed for the government of the public schools of such corporation" which statutory definition restricts its scope to narrow limits. And in the case of Stiver, Trustee v. State ex rel. Kent,9 the opinion expressly stated that "lack of cooperation" was a legal cause within the meaning of "other good and just cause." The following excerpt is from the opinion of that case (p. 386): "The latter cause (that is lack of cooperation) is not one of the statutory causes which is expressly specified. But we think it is legal cause within the provision `other good and just cause.' In accordance with our holding in State ex rel. Felthoff v. Richards, supra, `other good and just cause' would include any cause which bears a reasonable relation to the teacher's `fitness or capacity to discharge the duties of his position.' A court can not say as a matter of law that ability and willingness to cooperate are not reasonably related to the fitness or capacity of a teacher for the performance of his duties."
The Massachusetts statute specifies "conduct unbecoming a teacher" which clearly is more comprehensive than the term "immorality" in our statute; and which comprehends types of conduct which would materially affect the personal fitness of a teacher and yet would not be included in any of the causes specifically enumerated in the Indiana Act.
The opinion of the majority treats the case of Guilford SchoolTownship v. Roberts10 as supporting authority. The material facts in that case were that the township trustee told the applicant that he would not employ a woman teacher who was married. The applicant was in fact married when a contract was executed and falsely represented that she was unmarried in order to *Page 615 induce the trustee to enter into the contract. The teacher having induced the trustee to enter into the contract by a fraudulent misrepresentation respecting a fact which the trustee was privileged to consider material, this court properly held that the trustee could repudiate the contract. It is true that "the representation must concern a material fact affecting the rights of the parties;" but "it may be stated as a rule that it is always material if, had it been known to be false, the contract would not have been entered into.11 The Guilford Township Case, supra, is not authority for the proposition that the school township could have repudiated its contract if the teacher had married during the school term in violation of her promise not to do so. In that situation the township could not have justified, legally, its repudiation of the contract unless marriage by the teacher prevented her performance of the contract. But since there was no legal restriction upon the discretion of the township trustee he was free to insist, as a condition precedent to contractual liability, that the teacher be an unmarried woman. School officials have free discretion in the choosing of individuals if the individuals have the minimum legal qualifications. But it does not follow that every fact which school officials may take into consideration in employing teachers, can under the guise of carrying out some special policy, be made a legal cause for cancellation of a tenure contract. Under the Tenure Act causes for cancellation of indefinite contracts must be legal causes, even though causes for contracting or not contracting with nontenure teachers may still be the idiosyncracies of employing officials.
The reasoning and conclusion of the majority as revealed in the opinion rest heavily upon the recent *Page 616 Massachusetts Case of Rinaldo v. Dreyer.12 But three decisive factors are implicit in the reasoning and conclusion of the Massachusetts Supreme Court that have no legitimate place in our consideration of the merits of the instant case. (1) Local autonomy in school administration exists to a much greater degree in Massachusetts than in Indiana. Our legal concept of a general and uniform system of schools constituting a state institution, in the strictest sense, is unknown to the Massachusetts law. (2) The judicial definition of "cause" applied by the Massachusetts courts is embodied in the following statement from Ham v.Boston Board of Police:13 "It (i.e. the police board) may also remove any officers or members of the department for cause; that is, for such cause as seems to it sufficient, after the party has had notice and an opportunity to be heard in defense or explanation of whatever may be suggested as a cause of removal." (our italics.) And (3) the type of teacher employed under consideration in Rinaldo v. Dreyer, supra, is an employment at discretion of the school committee. No such type of teacher employment is known to the Indiana law governing employment relation of school corporations and teachers.
Prior to the amendment of the Massachusetts school code in 1934 the Supreme Court of Massachusetts had frequently discussed the legal signification of "employment at discretion." The substance of many statements was that under an "employment at discretion" the school committee had freedom to act "according to honest judgment."14 And in Sheldon v. School Committee ofHopedale,15 it was said that "A decision that wise administration of public schools calls for the elimination of women teachers if they are married is not so irrational *Page 617 that it is inconsistent in law with good faith in dealing with a question of dismissal." The result was that a local committee had the legal power to dismiss a teacher employed "at discretion" for any cause which was not so irrational that a court could say as a matter of law that it showed bad faith on the part of the committee.
When the Massachusetts school code was amended in 1934 it was provided that teachers "employed at discretion" should not be dismissed "except for inefficiency, incapacity, conduct unbecoming a teacher . . . insubordination or other good cause . . ."16 The Rinaldo Case, which involved a teacher employed at discretion, was decided after the amendment was made. But in construing and applying the language of the statute the Massachusetts Supreme Court was not free, without legal reason, to disregard its previous holdings respecting the legal signification of "employment at discretion" and "cause." Consequently, that court consistently with judicial reasoning could declare the law in Massachusetts to be that "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;"17 and properly could state; "If the cause assigned is at least fairly debatable and is asserted honestly, and not as a subterfuge, that is enough."18 But the Rinaldo case does not justify this court's abandoning a long recognized legal standard of "cause" and adopting the Massachusetts standard which rests upon legal and factual elements peculiar to the legal character of the Massachusetts school system, judicial precedents of that jurisdiction, and special provisions of the Massachusetts school code. *Page 618
Under a tenure statute with provisions similar to those of the Indiana Act the Supreme Court of New Jersey has held that marriage of a female teacher is not a legal cause for termination of tenure. The following excerpts from the opinion of that court form an interesting contrast to the reasoning and conclusion of the Supreme Court of Massachusetts and of the majority opinion:19
"The argument advanced for the prosecutor is that the clause in this statute reading `or other just cause' will support a discharge on the ground of marriage; in other words, that the fact of marriage is a `just cause' for dismissal. The state board pointed out, and we think correctly, that `these words in the tenure act must be read in conjunction with those immediately before them, and they imply a dereliction by the teacher, which may be the subject matter of the charge against her.' With this conclusion and reasoning we agree. There is perhaps room for argument that a married woman, on account of her duties of her husband and family, is not as well qualified to perform those of a teacher in addition; but this is a matter for the Legislature.
". . . On the fundamental ground that the statute does not contemplate the fact of marriage as a just cause, we are in accord with the finding of the two tribunals below."
It is a novel suggestion that local school officials who are administrative officials of the state school system, can use that part of the state school system over which *Page 619 they have supervision and control, for the purpose of giving effect to their social, economic, or political policies, even through the officials honestly believe that the carrying out of the policies may be "a matter of interest to the community and therefore to the school system of the community." (Majority opinion.) It is of course true, as stated in the majority opinion, that the school system of Indiana is a means to an end and that the purpose and justification of its existence is the promotion of the general welfare. But it is equally obvious that the contribution of our public school system to the general welfare should be made by it as an educational institution. Local school officials undoubtedly have wide discretion in the management of local school affairs; but this discretion is limited to choice of methods and means of improving the local schools as an educational institution. The Constitution of Indiana expressly recognizes that the public school system is to make its contribution to general welfare by diffusing "Knowledge and learning, . . . throughout a community."20
In the instant case the rule against marriage of female teachers seems to be justified on the ground that it would be of advantage to the community to encourage "unmarried teachers residents of the community, who are unemployed" (majority opinion) to remain in the community. It is elementary that if marriage, in and of itself, is not cause for cancellation of a contract, and if to treat it so would be a violation of the Teachers' Tenure Act, it could not be made a legal cause through the device of a rule prohibiting marriage plus a contractual *Page 620 provision for termination of the contract of employment in case of marriage. This would be a fraud upon the law and any such rule and contract based thereon would be void as against public policy. Consequently, if the arrangement in the instant case can give validity to the act of the school board, it must be because the school board has a discretionary power, independent of and superior to the statute, to decide that certain policies would be beneficial to the community generally and to utilize its administrative power as an official school body to give effect to any of these policies.
If we grant the validity of the foregoing reasoning, which seems to be the substance of the majority opinion's reasoning, the result is that the scope of "other good and just cause" will be limited only by the capacity of local school boards to discover policies for the community which apparently could be advanced by cancellation of indefinite contracts. And it will become increasingly difficult, if not impossible, for a teacher to retain a tenure position by relying solely upon professional qualifications and personal competency.
The foregoing reasoning and results affect all public employees whose tenure of position is protected by statutory provisions prohibiting dismissal without cause.
In my opinion a legal power of a school board is limited to taking action which directly concerns the educational function of that part of the state system of public schools which is under its jurisdiction. Since the Teachers' Tenure Act expressly takes away the power of local boards to cancel indefinite contracts of permanent teachers except for certain specifically enumerated causes, or "other good and just cause," I believe that it is not within the power of such board to cancel a contract except for one or more of the causes specifically enumerated, or for some other cause which affects the *Page 621 ability of the teacher to make his proper contribution to the educational function of the local school system.
In my judgment the cases of City of Elwood v. State ex rel.Griffin, and Kostanzer v. State ex rel. Ramsey, supra, correctly construed and applied the provisions of the Teachers' Tenure Act relative to cancellation of contracts for cause. It is my further judgment that those cases were in harmony with, and rested upon sound doctrines which had been applied by this court in the earlier cases of State ex rel. Felthoff v. Richards,Roth v. State ex rel. Kurtz, and State ex rel. Manning v.Mayne, supra. And it is my conviction that the Indiana cases are in accord with sound legal reasoning and supported by the weight of that authority which is properly applicable to the problem involved.
1 (1932), 203 Ind. 626, 180 N.E. 471.
2 (1933), 205 Ind. 536, 545, 187 N.E. 337.
3 City of Elwood v. State ex rel., supra, at page 632.
4 Yarlott v. Brown (1923), 192 Ind. 648, 653, 138 N.E. 17.
5 (1879), 68 Ind. 285, 295.
6 (1902), 158 Ind. 242, 254, 63 N.E. 460.
7 (1932), 203 Ind. 637, 643-44, 180 N.E. 596.
8 (1910), 173 Ind. 640, 91 N.E. 242.
9 (1936), ante 380, 1 N.E.2d 1006.
10 (1902), 28 Ind. App. 355, 62 N.E. 711.
11 Corpus Juris, Vol. 13, § 204, p. 390.
12 (1936), 1 N.E.2d 37 (Mass.).
13 (1886), 142 Mass. 90, 95, 7 N.E. 540.
14 Paquette v. Fall River (1932), 278 Mass. 172, 174,179 N.E. 588.
15 (1931). 276 Mass. 230, 236, 177 N.E. 94.
16 Acts and Resolves of Mass. 1934, ch. 123, p. 120.
17 Rinaldo v. Dreyer, supra, p. 38.
18 Id. p. 38.
19 School Dist. of Wildwood v. State Board of Education (1936), 116 N.J.L. 572, 185 A. 664, 665.
Pertinent provisions of the New Jersey statute, which are substantially the same as those of the Massachusetts and Indiana statutes, are as follows: "No principal or teacher shall be dismissed or subjected to reduction of salary in said school district except for inefficiency, incapacity, conduct unbecoming a teacher or other just cause, and after a written charge of the cause or causes shall have been preferred against him or her," etc. Chapter 243, § 1, P.L. 1909, as amended (N.J.St. Annual 1935, § 185 — 106a).
20 Article 8, Sec. 1, Indiana Constitution: "Knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government; it shall be the duty of the General Assembly to encourage by all suitable means, moral, intellectual, scientific, and agricultural improvement; and to provide, by law, for the general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all."