Mullen v. DuBois Area School District

Dissenting Opinion by

Mr. Justice Pomeroy:

I cannot agree with the conclusion of the majority that mandamus will lie in the present case, and accordingly I dissent. As the majority recognizes, mandamus will lie only to compel performance of a ministerial act or a mandatory duty where there is a clear right-duty relationship between plaintiff and defendant. In this case, such a relationship between Mullen and the Board could have been created only by a valid and enforceable contract entitling Mullen to continued employment. Thus, the existence of such a contract is the crucial issue.

The standards for making a valid employment contract between a teacher and a school district are not the usual common law standards; they have been set forth in meticulous fashion by the legislature. The relevant statute is clear and unequivocal: “The affirmative vote of a majority of all the members of the board of school directors in every school district, duly recorded, showing how each member voted, shall he required in order to take action on the following subjects: . . . Appointing or dismissing . . . teachers . . . Fixing salaries or compensation of . . . teachers . . . Failure to comply with the provisions of this section shall render such acts of the hoard of school directors void and unenforceable.” (Emphasis supplied) Act of September 28, 1951, P. L. 1546, §1, 24 P.S. §5-508. There is no evidence in this case that Mullen’s contract was approved by an affirmative recorded vote of a majority of all the members of the School Board. Accord *219 ingly, the employment contract in question is void and unenforceable unless the quoted provision is, as the majority concludes, directory in nature.

Whether a particular statutory provision is mandatory or directory is determined by the intent of the legislature as ascertained by a consideration of the statute as a whole. See e.g. Prichard v. Willistown Twp. School District, 394 Pa. 489 , 147 A. 2d 380 (1959). The essential difference between mandatory and directory provisions is the effect given to acts performed in violation of the standard set forth: “A mandatory provision is one the omission to follow which renders the proceeding to which it relates illegal and void, while a directory provision is one the observance of which is not necessary to the validity of the proceeding.” Deibert v. Rhodes, 291 Pa. 550, 554-55 , 140 Atl. 515 (1928); Pleasant Hills Borough v. Carroll, 182 Pa. Superior Ct. 102 , 125 A. 2d 466 (1956); and Kowell Motor Vehicle Registration Case, 209 Pa. Superior Ct. 386 , 228 A. 2d 50 (1967). In the present case, the legislature has prescribed that failure of a board to adhere to the statutory procedures for the appointment of teachers shall render such acts void and unenforceable. I can imagine no way in which the legislature could have better or more categorically expressed its intent that these procedures were to be considered mandatory than to provide exactly as it did, viz., that acts not in compliance with such procedures were to be void and unenforceable.

Secondly, it should be noted that the statutory requirement of a properly recorded affirmative vote of a majority of the members of the school board on the appointment of a teacher has been on the books of the Commonwealth for over one hundred years. Originally it was embodied in Section 4 of the Act of April 11, 1862, P. L. 472. School District of Dennison Township v. Padden, 89 Pa. 395, 397 (1879). It was re-enacted *220 by the Act of May 18, 1911, P. L. 309, Article IV, Section 403. Jackson v. Conneautville Borough School District, 280 Pa. 601 , 125 Atl. 310 (1924). Finally, it was retained in The Public School Code of 1949, Act of March 10, 1949, P. L. 30, Art. V, §508, as amended, 24 P.S. §5-508. As the majority recognizes, this requirement of the statute has been consistently construed by this and other courts as a mandatory provision. See Taggart v. Canon-McMillan Joint School System, 409 Pa. 33 , 185 A. 2d 332 (1962); Commonwealth ex rel. Ake v. Blough, 330 Pa. 590 , 200 Atl. 10 (1938); Commonwealth ex rel. Ricapito v. Bethlehem School District, 148 Pa. Superior Ct. 426 , 25 A. 2d 786 (1942); McCandless v. Summit School District, 55 Pa. Superior Ct. 277 (1913). The legislature chose to reenact this provision in the face of this long-standing judicial interpretation. It is a settled canon of statutory construction that legislative re-enactment of a statutory provision is presumptively a legislative adoption of the judicial interpretation previously given to the language in question. See Statutory Construction Act, Act of May 28, 1937, P. L. 1019, Art. IV, §52(4), 46 P.S. §552(4); Commonwealth v. Wetzel, 435 Pa. 468 , 257 A. 2d 538 (1969); and Commonwealth v. Sitkin’s Junk Co., 412 Pa. 132 , 194 A. 2d 199 (1963). Particularly in view of this standard, I am unable to accept the view that the provision at hand is, in its intent, merely directory. This Court can overrule its own decisions, as the majority here frankly does; in so doing, however, it effectively negates a valid statutory provision, and that it cannot do.

Finally, it should be noted that the statutory requirement of a recorded affirmative vote applies not only to the appointment of teachers but also to a wide variety of other school board actions, including inter alia the dismissal of teachers, the levying and assessment of taxes, the purchase and condemnation of land, *221 the creation or increase of indebtedness, the establishment of new schools, and the making of contracts where the amount involved exceeds $100. Cases holding the present provision to be mandatory as to these other actions by school boards are numerous. See Yoder v. School District of Luzerne Twp., 399 Pa. 425 , 160 A. 2d 419 (1960); In re Chester School District’s Audit, 301 Pa. 203 , 151 Atl. 801 (1930); Jackson v. Conneautville Borough School District, supra, and Matevish v. Ramey Borough School District, 167 Pa. Superior Ct. 313 , 74 A. 2d 797 (1950). I see no ground upon which we could logically find the affirmative recorded vote requirement mandatory as to some board actions and directory only as to other actions. While this case is decided on its own facts, it seems inevitable that the decision may have unwanted consequences in other areas.

Nothing I have here said is intended to condone in any way the negligent, or even improper, conduct of the School Board in the situation before us. Moreover, I recognize that certain problems of policy are inherent in a statute which subjects the substantive rights of one party to a second party’s faithful observance of procedural requirements. But the choice of such a procedure is within the province of the legislature, and the legislature in providing for such a procedure in the present case spoke with unmistakable clarity. For this Court to hold that the words “void and unenforceable” mean “valid and enforceable” is, in my view, judicial legislation unwarranted by even the hard facts of this case.

Mr. Justice Jones joins in this dissent.