The opinion
SUPPLEMENTAL OPINION
(On Mandate of United States Supreme Court.)
The decision in this case was reviewed by the Supreme Court of the United States, and an opinion was delivered and filed on January 31, 1938. See *Page 357 State ex rel. Anderson v. Brand, Trustee, etc., 303 U.S. 95 , 58 S.Ct. 443 .
The opinion of the United States Supreme Court assumes that this court considered only the question of whether the relatrix' contract vested in her tenure rights protected by the Constitution of the United States. It is said in the opinion (p. 104): "But we are of opinion that the petitioner had a valid contract with the respondent, the obligation of which would be impaired by the termination of her employment." The decision does not discuss or pass upon the nature of the remedy available. The remanding order is as follows (p. 109): "As the court below has not passed upon one of the grounds of demurrer which appears to involve no federal question, and may present a defense still open to the respondent, we reverse the judgment and remand the cause for further proceedings not inconsistent with this opinion."
The demurrer is for want of facts. One of the specifications is that the plaintiff's action is founded upon a statute which has been repealed. Where a demurrer is sustained by the trial 13. court, this court will affirm, if, for any reason, the ruling of the trial court is correct. Poer, Trustee v. State ex rel. Hinshaw (1919), 188 Ind. 55 , 121 N.E. 83 ; Bruns
v. Cope (1914), 182 Ind. 289 , 105 N.E. 471 .
This action is brought in the name of the State on the relation of Dorothy Anderson. It seeks to mandate the school authorities to reinstate the relatrix as a teacher and continue her in 14. employment. It is not an action by Dorothy Anderson to enforce her contract, but an action to require a public officer to perform a duty required of him by law, which can be maintained only in the name of the State.
In School City of Elwood et al. v. State ex rel. Griffin et al. (1932), 203 Ind. 626 , 634, 180 N.E. 471 , 474, 81 *Page 358
A.L.R. 1027, 1032, it is clearly recognized that it is because of "the duty of appellants imposed by the same" (the statute) "that mandamus is the proper remedy in this case." Section 1245, Burns' Ann. St. 1926, cited in the opinion, is as follows: "The action for mandate may be prosecuted against any inferior tribunal, corporation, public or corporate officer or person to compel the performance of any act which the law specifically enjoins, or any duty resulting from any office, trust or station."
In Kostanzer et al. v. State ex rel Ramsey (1933), 205 Ind. 536 , 547, 187 N.E. 337 , 341, 342, it is said: "If appellee's position is not an office appellants insist that mandamus is not available for the reason that the granting of mandatory relief results in enforcing a purely contractual right. It is true that mandatory relief against appellants will result in enforcing appellee's rights under her contract; but the duty which the judgment of the trial court compelled appellants to perform was a duty enjoined by statute and not by contract. The contract between appellants and appellee created a relation which entitled appellee to have appellants perform the duty in question; but the duty was not imposed by any provision of the contract."
It was thought by this court when the above cases were decided, and when this case was decided, that the enforcement of tenure rights depended entirely upon the statutory duty of the 15. school officers to continue the teacher in employment, and that the teacher's only protection was an action in mandate in the name of the State to enforce the performance of a statutory duty by the school officers. In the Kostanzer case we said that the tenure rights were created "by statute and not by contract." The United States Supreme Court has concluded that the teacher's contract creates tenure rights which the repeal of the statute cannot strike down and destroy. The protection *Page 359
afforded the relatrix by the federal Constitution is that her contractual rights shall not be impaired by state legislation. This is the question, as we understand it, that was passed upon by the United States Supreme Court. That court held the repeal of the statute to be ineffectual to strike down the teacher's contractual tenure rights. We conclude that the repeal of the statute is otherwise valid in all respects, and therefore there is no longer any statutory duty which requires the school officers to continue the teacher in employment. The school officers therefore cannot be mandated. The teacher's rights under her contract must be enforced in a civil action upon the contract in her own name. See City of Peru et al. v. State ex rel. McGuire (1935), 210 Ind. 668 , 199 N.E. 151 , and State ex rel. Ham v. Hulley, Mayor, et al. (1922), 192 Ind. 547 , 137 N.E. 777 .
Much was said about the contract in the original opinion, ineptly perhaps, for the purpose of showing that the tenure right was not created by the contract, and that, since it 16, 17. depended upon a statute which had been repealed, there was no such right. It followed that, there being no such right, the action for mandate would not lie, and the demurrer was properly sustained. The United States Supreme Court has concluded that the tenure right was created by contract also, but the contractual right cannot be enforced by an action in mandate. Contractual rights must be enforced by an action at law or in equity in the name of the injured contracting party. We must still conclude therefore that the complaint in the name of the State for mandate does not state a cause of action.
Judgment affirmed.