Indiana Ex Rel. Anderson v. Brand

Mr. Justice Black,

dissenting.

In my opinion this reversal unconstitutionally limits the right of Indiana to control Indiana’s public school system. I believe the judgment should be affirmed because:

*110 (1) It does not appear in the record that a federal question was necessarily involved in the decision of the state court; 1

(2) The record does not disclose beyond a reasonable doubt 2 that Indiana, by the Teachers Act of 1927, surrendered its sovereign, governmental right to change and alter at will legislative policy related to the public welfare, or that its legislature had the power to do so.

First. It does not appear from the record that a federal question “was necessarily involved in the decision; and that the state court could not have given the judgment or decree which they passed, without deciding it.” 3 Therefore, “it is a matter of no consequence to us that the court may have gone further and decided a federal question.” 4 “Where a case in this Court can be decided without reference to questions arising under the Federal Constitution, that course is usually pursued and is not departed from without important reasons.” 5

Petitioner’s complaint disclosed: that, after a hearing, she was removed from her position as a teacher for causes including those set out in the statute, i. e., (1) “neglect of duty” and (2) “for other good and just cause”; and that the county superintendent, on appeal, approved her removal. A demurrer was sustained to the complaint. The demurrer assigned the general ground that the complaint failed to “state facts sufficient to constitute a good cause of action.” One of the specific reasons set out for demurrer was that the complaint showed on its face that petitioner had been removed only after a proper notice and hearings before the township trustee and the county superintendent, in accordance with the requirements of the Act.

*111 Under these circumstances, we can consider the decision of the Indiana courts as based on a finding of inadequacy in petitioner’s complaint under Indiana law. This Court does not decide “questions of a constitutional nature unless absolutely necessary to a decision of the case.” 6 We should not depart from this policy in order to strike down a law passed .by a state in its sovereign capacity to establish legislative policies for the education of its people.

Second. This Court has declared that “. . . neither the [Fourteenth] amendment . . . nor any other amendment, was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote . . . education ... of the people ...” 7 Article 8, § 1 of the Constitution of Indiana provides: “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 provide, by law, for a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.” In carrying out this constitutional mandate to provide education for the people of the State, the legislature of Indiana has found it necessary—as have other States—to alter legislative policy from time to time. The statutes and the decisions of Indiana indicate a laudable desire and a commendable effort not only to provide sufficient funds to *112 carry out these educational aspirations of the State, but also to provide reasonable security of employment for teachers. Such effort brought about the “Indiana Teachers Tenure Act of 1927.” This law provided the conditions upon which “permanent” teachers with “indefinite contracts” could be removed from their positions, and was evidently intended to provide statutory security against their discharge by local school authorities for any causes except those specified in the law. These “permanent” teachers could cancel their “indefinite contracts” upon five days’ notice at any time except during the school term or for a period of thirty days previous to it.

In 1933, the legislative representatives of the people of Indiana decided to change this policy by excluding township school corporations from its operation. The contention here is that the statutory tenure given teachers under the 1927 Act amounted to contracts with the state which could not be impaired by repeal or modification of the law.

The Indiana Supreme Court has consistently held, even before its decision in this case, that the right of teachers, under the 1927 Act, to serve until removed for cause, was not given by contract, but by statute. Such was the express holding in the two cases cited in the majority opinion: Kostanzer v. State, 205 Ind. 536 ; 187 N. E. 337 ; and Elwood v. State, 203 Ind. 626 ; 180 N. E. 471 .

In Kostanzer v. State, supra, a teacher filed petition for mandamus alleging removal contrary to the “indefinite contract” obligation under the Act of 1927. Mandamus was opposed as an improper remedy because the teachers sought to compel action under a teachers tenure “coiv-tract.” Denying the contention that the teacher’s rights were fixed by contract, the Supreme Court of Indiana said:

“But the duty which the judgment of the trial court compelled appellants to perform was a duty enjoined by *113 statute and not by contract. , . . the duty was not imposed by any provision of the contract. In School City of Elwood v. State ex rel. Griffin, supra, this same contention was disposed of in the following language: ‘It is because of appellees’ right under this statute . . . that mandamus is the proper remedy in this case. ... A public school teacher who, under a positive provision of the statute, has a fixed tenure of employment or can be removed only in a certain manner prescribed by the statute, is entitled to reinstatement if he has been removed from his position in violation óf his statutory rights.’ ”

These cases demonstrate that the Supreme Court of Indiana has uniformly held that teachers did not hold their “indefinite” tenure under contract, but by grant of a repealable statute. In order to hold in this case that a contract was impaired, it is necessary to create a contract unauthorized by the Indiana legislature and declared to be non-existent by the Indiana Supreme Court.

In the similar case of Phelps v. Board of Education, 300 U. S. 319 , coming to this Court from New Jersey, the Supreme Court of that State declared that:

“The status of tenure teachers, while in one sense■ perhaps contractual, is in essence dependent on a statute, . . . which the legislature at will may abolish, or whose emoluments it may change.”

Under the New Jersey Act, which appears in the margin, 8 teachers could serve during “good behavior and *114 efficiency” and subject to removal only after a hearing and for cause. The Supreme Court of New Jersey declared that the tenure of New Jersey teachers was “in one sense perhaps contractual.” The Supreme Court of Indiana declared that the tenure of Indiana teachers was not contractual. Yet this Court in the case of Phelps v. Board of Education, supra, decided that New Jersey’s discharge of its teachers employed by the State “in a sense perhaps contractual” did not impair their contracts. The Court now strikes down Indiana’s Teachers Tenure Law after repeated decisions by the state’s Supreme Court that the teachers tenure is not contractual. The intent of the New Jersey Act and the intent of the Indiana Act were evidently identical and in view of this fact, I believe that the decision on the New Jersey appeal and the majority decision on the Indiana appeal are irreconcilable.

The Act of 1927 certainly does not clearly establish that the people of Indiana intended to surrender their sovereign right to change their educational policies from time to time to meet new needs or changed conditions. Under these circumstances “The presumption is that such a law (Teachers Tenure Law) is not intended to create private contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise.” 9

It is the end of every government to promote the general welfare of its people and we do not assume “that the government intended to diminish its power of accomplishing the end for which it was created.” 10

The Supreme Court of Indiana here held that “the Tenure Law does not purport to give a teacher a definite *115 and permanent contract. The word ‘indefinite’ is used in the statute itself. . . . The Tenure statute was only-intended as a limitation upon the plenary power of local school officials to cancel contracts. ... It was not intended as, and cannot be, a limitation upon the power of future Legislatures to change the law respecting teachers and their tenures. These are matters of public policy, of purely governmental concern, in which the legislative power cannot be exhausted or consumed, or contracted away, so as to limit the discretion of future General Assemblies.” 11

Prior to this decision and even before the 1927 Act, the Supreme Court of Indiana had said:

“With that [legislative] determination [relating to educational matters] the judiciary can no more rightfully interfere, than can the Legislature with a decree or judgment pronounced by a judicial tribunal. . . .

“As the power over schools is a legislative one, it is not exhausted by exercise. The Legislature having tried one plan is not precluded from trying another. It has a choice of methods, and may change its plans as often as it deems necessary or expedient; and for mistakes or abuses it is answerable to the people, but not to the court.” 12

The clear purport of Indiana law is that its legislature cannot surrender any part of it's plenary constitutional right to repeal, alter or amend existing legislation relating to the school system whenever the conditions demand change for the public good. Under Indiana law the legislature can neither barter nor give away its constitutional investiture of power. It can make no contract in conflict with this sovereign power. The construction of the constitution of Indiana by the Supreme Court of Indiana must be accepted as correct. That court holds that Indi *116 ana’s Constitution invests Indiana’s legislature with con-tinvmg power to change Indiana’s educational policies. It has here held that the legislature did not attempt or intend to surrender its constitutional power by authorizing definite contracts which would prevent the future exercise of this continuing, constitutional power. If the constitution and statutes of Indiana, as construed by its Supreme Court, prohibit the legislature from making a contract which is inconsistent with a continuing power to legislate, there could have been no definite contracts to be impaired. “The contracts designed to be protected by the [Federal Constitution] . . . are contracts by which perfect rights, certain definite, fixed private rights of property, are vested. ... It follows, then, upon principle, that, in every perfect or competent government, there must exist a general power to enact and to repeal laws; and to create, and change or discontinue, the agents designated for the execution of those laws.” 13

Merits of a policy establishing a permanent teacher tenure law are not for consideration here. We are dealing with the constitutional right of the people of a sovereign state to control their own public school system as they deem best for the public welfare. This Court should neither make it impossible for states to experiment in the matter of security of tenure for their teachers, nor deprive them of the right to change a policy if it is found that it has not operated successfully.

The Indiana Constitution gives the State legislature complete authority to control the public school system. The State Supreme Court declares that under this authority the legislature can change school plans as often as it believes a change will promote the interest of education “and for mistakes or abuses it is answerable to the people, *117 but not to the court.” 14 I believe the people of Indiana, if they prefer, have the right under the Federal Constitution to entrust this important public policy to their elective representatives rather than to the courts. Democracy permits the people to rule. I cannot agree that the constitutional prohibition against impairment of contracts was intended to—or does—transfer in part the determination of the educational policy of Indiana from the legislature of that State to this Court.

Indiana, in harmony with our national tradition, seeks to work out a school system, offering education to all, as “essential to the preservation of free government.” That great function of an advancing society has heretofore been exercised by the states. I find no constitutional authority for this Court to appropriate that power. Indiana’s highest court has said that the State did not, and has strongly indicated that the legislature could not, make contracts with a jew citizens, that would take away from all the citizens, the continuing power to alter the educational policy for the best interests of Indiana school children. The majority decision now places in this Court a power which has been exercised by the states since the adoption of our Constitution. The people have not surrendered that power to this Court by constitutional amendment.

For these reasons I cannot agree to the majority decision and I believe the judgment of the Supreme Court of Indiana should be affirmed.

Moore v. Mississippi, 21 Wall. 636, 639 .

Cf. Ogden v. Saunders, 12 Wheat. 213, 270 .

Armstrong v. Treasurer of Athens County, 16 Pet. 281, 285 .

Moore v. Mississippi, supra.

Siler v. Louisville & N. R. Co., 213 U. S. 175, 193 .

Burton v. United States, 196 U. S. 283, 295 . “If the experience of one hundred and fifty years of constitutional interpretation has taught any lesson, it is the unwisdom of making solemn declarations as to the meaning of that instrument which are unnecessary to decision. They can serve no useful purpose and their only effect may be to embarrass the Court when decision becomes necessary. O’Donoghue v. United States, 289 U. S. 516 , 550; Humphrey’s Executor v. United States, 295 U. S. 602, 626-627 .” Stone, J., dissenting, Wright v. United States, 302 U. S. 583, 604 .

Barbier v. Connolly, 113 U. S. 27, 31 .

The New Jersey Act (as quoted in Phelps v. Board of Education, 300 U. S. 319, 320-321 ):

Section 1 (4 N. J. Comp. St. 1910, p. 4763). “The service of ail teachers, principals, supervising principals of the public schools in any school district of this State shall be during good behavior and efficiency, after the expiration vf a period of employment of three consecutive years in that district, unless a shorter period is fixed by the employing board; . . . 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 *114 other just cause, and after a written charge of the cause or causes shall have been preferred against him or her, . . . and after the charge shall have been examined into and found true in fact by said Board of Education, upon reasonable notice to the person charged, who may be represented by counsel at the hearing. . . .”

Dodge v. Board of Education, 302 U. S. 74, 79 .

Charles River Bridge v. Warren Bridge, 11 Pet. 420, 547 .

5. N. E. (2d) 531, 532.

State ex rel. Clark v. Haworth, 122 Ind. 462 ; 23 N. E. 946 .

Butler v. Pennsylvania, 10 How. 402, 416 .

State ex rel. Clark v. Haworth, supra.