State Tenure Commission v. Madison County Board of Education Court Opinion

    d SEBIES

uot find the Pistol but did find thr
r and the bill of sale, both of w[16
: the same serial number as thc

cridence.

int contends that the search q33-

s illegal under the authority q1

r. State of Texas, 378 U.S. l0B,

l54B,12 L.E;d.Zd 723, and' Knox v.

I Ala.App. 578, 172 So.2d 787, i1
r.ses it was held that fhere was nq

of probable cause. We do ns1

:s question requires decision'

The right to Protection against

rful search is Personal, and a de-

in a criminal case who denies any

ar)- or possessory interest in seized

; has no stahding to object to the

of seizure. Guenther v' State,282

), 213 So2d 679; Aldridge v' State,

t. 170, 179 So.Zd 51, and federal

here cited. The defendant denied

: pistol was his, but said that he had

,ed it for another.

BTAIE TENITRE OOUN v. UADISON COITNTY BOABD OP ED.
Clte ag 213 8o.2il 823

that the defendant is guilty as charged,

and one man had a reasonable doubt of

his guilt, arising from the evidence or

from a tack of evidence, why then there

would not be any verdict; you couldn't

convict'"

t7) It is our opinion that reversible

erior is not made to aPpear in the trial

court's refusal to give the requested writ-

ten charge. It has been held that this

charge is a correct statement of the law as

oart of the trial court's oral charge to

it. jrry. McCullar v. State, 20 Ala.App.

585, 10+ So. 436. But we are convinced

that the same rule of law was substantially

and fairly given to the jury in the court's

general charge and the given written

Ihrrg.t dealing with the presumption of in-

nocence and reasonable doubt requested by

appellant. T;t. 7, $ 273, Code 1940; Gor-

don v. State, 268 Ala. 517, 110 So.2d 334.

We have found no reversible error in the

record.

Affirmed.

LIVINGSTON, C. J., and LAWSON
and HARWOOD, JJ., concur.

STATE TENURE COMM ISSION

Y.

MADTEON COUNTY BOARD OF
EDUCATION.

8 Dlv. 189.

Supreme Court of Alabama.

JulY 25' 1068.

Rehearlng Dcnletl Scpt. 10' 1908'

Mandamus Proceeding bY CountY

Board of Education to require State Ten-
ure Commission to set aside order or judg-

Ala.

ment of the Commission vacating an order
or judgment of the County Board can-

celling the contract of school teacher. The

Circuit Court, Madison County, Elbert H.
Parsons, J., granted the writ, and the
Commission appealed. The SuPreme

Court, Kohn, J., held that testimony in case

involving dismissal of teacher completely

failed to establish incompetency, insubordi-
nation, neglect of duty or immorality, so

that no good and just cause existed for
cancellation of teacher's contract.

Reversed and remanded with direc-
tions.

!. Schools and School Dlstrlcts @l4l(5)

Testimony in case involving dismissal

of teacher completely failed to establish

incompetency, insubordination, neglect of
duty or immorality, so that no good and
just cause existed for cancellation of teach-

er's contract. Code 1940, Tit. 52, $ 351 et

seq.

2' statutes @212'l

When the legislature amends a stat-
ute it approves the decisions of the Su-
preme Court on the subject generally cov-
ered by the statute.

3. Echools and School Dlstrlcls @133.9

Teacher Tenure Act should be liber-
ally construed in favor of teachers who
constitute the class designated as primary
beneficiaries of the act. Code 1940, Tit.
52, $ 351 et seq.

4. Schoola and School Dletrlctg @l4l(5)

Court's right to review acts of State
Tenure Commission is limited to two con-
siderations: whether such action was taken
in accordance with requirements of the
Teacher Tenure Act, and whether the ac-
tion taken was "unjust". Code 1940, Tit.
52, $$ 351 et seq.,360.

823

trial court admitted the bill of sale

idence on two grounds; first, that

ie cause had been shown, and second,

rluntary permission had been given

: search. We are not to be rrnder-

rs disagreeing with the trial court,

rrely that its ruling, if erroneous,

rred when the defendant denied anY

ihip of the pistol and any possession

as a pttrchasing agent'

rlly, appellant argues that the trial

eried in refusing to give the follow-

arge:

]entlemen of the jurY, I want to

your attention to one other thing'

that is that, under our sYstem of

s, it takes twelve men to reach a

lict. If one man was firmlY con-

:ed beyond a reasonable doubt, after

sidering all the evidence, that the

endant is guilty as charged, although

ers were not convinced beyond a rea-

able doubt, why you could not render

'erdict at all, and there would be a

;trial. If on the other hand eleven

you believe beyond a reasonable doubt



8U 2r8 SOUTEEnN BEPOBTE& 2d SEBIESAla.

5. Conrfltuflonat Law @3lg
"Due process,,, which means ,,fait

play", must be observed by all boards, as
well as by courts.

See publication W'orde and phrases
for other judicial constructioue and
definitions.

0. Schoolr and Schoot Dtstrlctr Ft4t(4)
Although term .,insubordination,' 

is
not defined by Teacher Tenure Act it un_
questionably includes the willful refusal
of a teacher to obey the rules and regula-
tions of his or her emptoying board of
education. Code 1940, T;t. SZ, $ 351 et
seq.

See publication Words and phrases
for other judicial constructione and
definitiong.

7. Schools and School Dlstrlcts @133.9

Principal purpose of Teacher Tenure
Act is to secure permanency in the teach-
ing force. Code 1940, Tit. SZ, g 351 et
seq.

8. Conrtltutlonal Law @30S

Requirement of a hearing in the exer-
cise of quasi-judicial powers has obvious
reference to tradition of judicial proceed-
ings with respect to those fundamental
requirements of fairness which are of es-
sence of due process in a proceeding of
a judicial nature.

9. Constltutlonal L8w €>48

Court will construe a statute so as to
make it harmonize with the constitution if
this can be done without doing violence
to terms of statute and ordinary canons
of construction.

10. Sohoolc and Sohool Dtstrlctr e't4t(4)
"Lack of co-operation" by a teacher

is legal cause for dismissal within provi-
sion "other good and just cause", as latter
phrase is used in Teacher Tenure Act,
which latter phrase includes any cause
which bears a reasonable relation to teach-
er's fitness or capacity to discharge the

duties of his position. Code 19.0, Tit.q
$ 351 et seq.

See publication W'ords and phrases
for other judicial constructions and
definitione.

MacDonald 
";, 

Atty. Gen., Wm. tt
McQueen, Asst. Atty. Gen., and Roscc
Roberts, Jr., Sp. Asst. Atty. Gen., for ap
pellant.

Ford, Caldwell, Ford & payne, Huntr
ville, for appellee.

KOHN, Justice.

After a contested hearing, the Madisol
County Board of Education cancelled thc
employment contract of one J. D. Wigler,
a Vocational Agricultural teacher who had
acquired a continuing service status, ustr
ally termed "tenure.,, Hereinafter in this
opinion, we shall refer to Mr. Wigley as

the teacher. Within the time provided, thc
teacher appealed to the State Tenure Cor
mission. The hearings before the Madi-
son County Board of Education, and thc
appeal to the State Tenure Commissioa
were both pursuant to Chapter 13, $ 351 cr

seq., Title 52, Code of Alabama, 1940, as

amended. Section 359, supra, sets out thc
mode of cancellation of tenure teachers'
employment contracts. Grounds for car
cellation of such employment contracts arG

covered by $ 358, supra. The grounds ane:
(l) Incompetency; (2) insubordinationi
(3) neglect of duty; (4) immorality; (5)
justifiable decrease in the number of teacb
er positions; (6) or other good and jut
cause. But, cancellation may not be madt

for political or personal reasofls, and rrc
would like to emphasize this last clau!.
which we feel played a part in the originrl
proceedings involved in this case.

Section 360, supra, makes the actions ol
the employing board, which was in thb
case the Madison Countv Board of Educt'
tion, final in its action on cancellation of
teachers' contracts, provided such actio,
was in compliance with the provisions ol

SIAIE TENITB.E OOilII v.

::.7- 13, supra, and was not ar

G:==- This same section prov

-'* 
aright to appeal to the St

:.- J--ission in order to obta
-::r :-r such Tenure Commissic

--:r- such action of the er

rrc---:r this case the Madison
=--.= :f Education-was in cor
r:- .-irpter 13, supra; and whet
.--:= =-zs arbitrarily uajusl.

-.:Fer l3A is supplemental to-- 
-*=tion 361(8) of Chapter

:== -:: supra, makes it the dutl
i: lerure Commission to hear
--::c appeal cases, es provided i

l-= -:l as amended, and states
-::s::=s of the State Tenure Cor
.-, -, :e final to the extent prol
; :-: l- Section 361 of Title 52.----* --:e action of the State Tenu

-=--::- = reviewing cancellation c

-:- ::-:racts, if made in compliar

- 
:::.:sions of Chapter 13, anr

G.r-i-. iiaal and conclusive. Sect:rr-< i-so provides for a review I
j=-:-:.- I:ure Commission ruling by
-: -=-,i:mus filed in the circuit r

- ::r:ty rr-here the school sys

-: -i :s located, and the quesl
-::=E=: ls whether such action of tl
l'-e Commission complies with
-su:s :f this Chapter, and whetl
:r--'* :f ,n: Commission was unjr

l:c -irate Tenure Commission h
\ --i:s of the Madison County I
IS=S:a, in cancetling the cont

= 
1--ra6, $'as arbitrary and

--=' --r:g!rent of the Madison
+i :f Education is set out bel,
riq ::c lecision of the State Tenur
Bcc:
-ErrTES oF MADISoN co

3OARD OF EDUCATION

::rrE\tBER 25, l!)63--6:30 p

ICNGS INN

\-nitr fivc (5) days of the ta

= 
jly and on September 25

\F f=rd tnet in special called
I-: --2rF52lA



d sEBIE8

his position. Code 19,(), Tit.S4
ieq.

publication Worils and phrars!
ther judidal eoDstructions 61it
tions.

.+

rnald Gallion, Atty. Gen., \4/6. 19.
t, Asst. Atty. Gen., and Roscoc

Jr, Sp. Asst. Atty. Gen., for ap

Caldwell, Ford & Payne, Huntr-
appellee.

{, Justice.

a contested hearing, the Madison
Board of Education cancelled the
rent contract of one J. D. Wigley,
onal Agricultural teacher who had

a continuing service status, usu-

ned "tenure." Hereinafter in this
we shall refer to Mr. Wigley as

rer. Within the time provided, the
appealed to the State Tenure Com-

The hearings before the Madi-
rnty Board of Education, and the
to the State Tenure Commission

th pursuant to Chapter 13, S 351 et

tle 52, Code of Alabama, 190, as

l. Section 359, suPra, sets out the

f cancellation of tenure teachers'

rent contracts. Grounds for can-

r of such employment contracts are

by $ 358, supra. The grounds are:
:ompetency; (2) insubordination;
lect of duty; (4) immoralitY; (5)

rle decrease in the number of teach-

:ions; (6) or other good and just

Bat, caacellntion maY not be mode

ilical or fersonal leasons, and we

like to emphasize this last clause

ve feel played a part in the original
,ings involved in this case.

on 360, supra, makes the actions of
ploying board, which was in this
e Madison County Board of Educa-

nal in its action on cancellation of
s' contracts, provided such action

compliance with the provisions of

STATE TENITBE OOU'N n IADISON OOIINITY BOABD OF ED. Als. 825
Clte as 218 8o2d 823

Chapter 13, supra, and was not arbitrarily at 6:30 P.M. to consider the evidence in

unjust. This same section provides the the matter of the proposed cancella-

teacher a.right to appeal to the State Ten- tion of Mr. J. D. Wigley's contract as

u1s Commission in order to obtain a re- teacher of vocational agriculture in the

view by such Tenure Commission as to Buckhorn High School, with the fol-
whether such action of the employing lowing members present: L. E. Here-
board-in this case the Madison County ford, Wm. L. Vaughn, Atlas Carriger,
Board of Education-was in compliance Donald Spencer and Herman B. San-
yith Chapter 13, supra; and whether such ders.

action was arbitrarily unjust' ..After due and careful consideration
Chapter l3A is supplemental to Chapter the Madison County Board of Education

13. Section 361(8) of Chapter l3A of found the charges proved on Specifica-
Title 52, supra, makes it the duty of the tions l, 2,3,5,6,8,9, 10, and ll, and

State Tenure Commission to hear and de- that portion of Specification 12 reading

termine appeal cases, as provided in $ 360, 'the said J. D. Wigley has exhibited a

Title 52, as amended, and states that the pattern of failure or refusal to cooper-

decisions of the State Tenure Commission ate in the schools in the Madison Coun-
shall be final to the extent provided by ty School System in which he has served'

$ 361. Section 361 of Title 52, supra, and 'he has failed to uphold and main-
makes the action of the State Tenure Com- tain the authority vested in the princi-
mission in reviewing cancellation of teach- pals of the schools wherein he has been

ers' contracts, if made in compliance with employed.' The remainder of Specifica-
the provisions of Chapter 13, and unless tion XII was either not proved or was
unjust, final and conclusive. Section 361, covered by preceding specifications.
supra, also provides for a review from the

state Tenure commission ruling by petition "The Board then unanimously voted to

of mandamus filed in the circuit court of cancel the contract of the said J' D' wig-

the county where the school system in- ley'

volved is located, and the question re- "A motion was offered by Mr. Car-
viewed is whether such action of the State riger and seconded by Mr. Sanders, and
Tenure Commission complies with the pro- carried, authorizing the Superintendent
visions of this Chapter, and whether such of Education to officially notify Mr.
action by the Commission was unjust. J. D. Wigley and attorney, Roscoe Rob-

The State Tenure commission held that erts' of the Board's decision to cancel

the action of the Madison countv Board of [:;:ij[" ;' ff:"5r;t J;*HH
Education, in cancelling the contract of School.
the teacher, was arbitrary and unjust.
The judgment of the Madison County "There being no further business to
Board of Education is set out below, and come before the Board the meeting was
also the decision of the State Tenure Com- adjourned."
mission: (,Findings of the Alabama Tenure
,,MINUTES OF MADISON COUNTy Commission in the Case of J. D. Wigley.

BOARD OF EDUCATION

"SEPTEMBER 25, 1963-6:30 P.M.-
KINGS INN

"Within five (5) days of the last hear-
ing day and on September 25, 1963,

the Board met in special called session
273 So.2d-52\t

"The commission after due considera-
tion found by unanimous vote that the
requirements of the statute in connec-
tion with the action of the Madison
County Board of Education in canceling
the contract of J. D. Wigley were com-
plied with.



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STATE TENITBE OOU'N n UADISON OOITNTY BOABD OF ED.
Clte 8s 213 8o.2d 82.3

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g1e capacity, the character and the "know-

how" to do the job. No other conclusion

sould reasonably be arrived at from the

oreponderance of the evidence and the

*reight of the testimony in the record.

The record before us discloses that the

following was admitted by stipulation on

ghs hearing before the Madison County

Board of Education, relating to things ac-

complished by pupils under the supervision

ef the teacher. "In 1959 the FFA Buck-

horn chapter won the gold medal for chap-

ter contest. * + * Fourth place in the
guartet contest; on a state wide level ;

first place on farm safety contest on state

wide level; honor roll, l18 members, which
was the highest in the state; champion corn

tfower on the state Ievel; four state

farmers; won third place in the district
quartet; had the champion district corn
grower; was second in the county in
public speaking contest; in 1960, that the

Buckhorn FFA chapter had a gold medal
fu the chapter contest; second place at
the state level in the quartet contest; first
in the county in the quartet contest; won
rcond place in farm safety contest; had
135 members, which was the highest in
the state for any chapter in the state; had
six state farmers; 1961, had a gold medal
chapter contest; one of four; 138 mem-
hrs, the highest in the state; had the cham-
pion corn g'rower; champion district corn
trower; won the MK animal health award,
ctate, had an American farmer and state
farmer; second place in the county for
tractor driving contest; third place in the
quartet, second place in the public speaking,
rnd the champion district corn grower;
1962, won a gold medal in the chapter con-
test; won second place in quartet contest-
rod all these on a state level; had 157 mem-
hrs, which was the highest enrollment in
ut FFA chapter in the state; second place
in farm safety contest; won one American
farmer; six state farmers; was first in the
Etnty and the district in quartet contest;
Eond in the county in public speaking.,,

- 
It is further obvious, from the record,

lbt the attorney for the teacher, upon the
2r, So.2f5,

Ala. 833

original hearing before the Madison County
Board of Education, was not atlowed prop-
er cross-examination. Scction _359, Title
$2, supra, provides that the teacher "shall
have a right to cross-examine the adverse
witnesses." Board of Education of Choc-
taw County v. Kennedy, 256 AIa.478,55
So.2d 5ll; State ex rel. Steele v. Board of
Education of Fairfield, 252 A[a.254,40 So.
2d 689.

This appellate aspect of the tenure teach-
er law, that is, the State Tenure Commis-
sion, to which a review may be had of de-
cisions of local school boards, is a covenant
made by the people of Alabama with tenure
school teachers, as expressed by legislative
enactment-Chapter 13 and Chapter l3A,
Title 52, Code of Alabama 1940. Thus,
there now exists a "tenure" law and an in-
dependent appellate forum. The legislature,
no doubt, felt it was necessary to have an
appellate forum for tenure teachers, so that
they could be removed from the heat and
the aggressiveness and pressures sometimes
generated in intra-community or intra-coun-
ty politics. This "tenure teacher" law es-

tablishes a "means" between two extremes

-the extreme of absolute local control and
the other extreme of absolute freedom from
any local control.

tzl No forum or tribunal under existing
law should fave the authority, and certainly
not the right, to strike down a decision of
the State Tenure Commission on such evi-
dence, or lack of affirmative evidence, as

disclosed by the record in this case. It is
clear that the State Tenure Commission, as

it now exists, expresses the intent of the
legislature to protect the right of tenure
teachers, and to preserve to them a certain
degree of academic freedom, and freedom
from harassment that is sometimes caused
by intra-community politicat conflict; and
at the same time reserve to local authorities,
through the local county school boards and
local school officials, such as school trus-
tees, school principals and schoot superin-
tendents of education, proper authority
within the area of their particular function-
ing. For the applicable statute, Title 52, $



834

361, as amended, supra, made the actions

of the State Tenure Commission final un-

less unjust. It would serve no useful pur-
pose to cite dictionary definitions and court
decisions defining the word "unjust," for
the courts of this State have long held the
test governing administrative bodies, such

as this appellate appeal board, and the prin-
ciple existing in this State of established

law, that when the legislature amends a

statute, it approves the decisions of this
court on the subject generally covered by

the statute. We have several decisions of
this court that discuss the principles of law
covering the construction of the Teacher
Tenure Act.

t3l In 1941, it was held by a decision of
this court, in the case of Board of Educa-

tion of Marshall County v. Baugh, 240 Ala.
391, l99 So. 822, that the Teacher Tenure
Act should be liberally construed in favor
of teachers who constitute the class desig-

nated as primary beneficiaries of the act'

t4] It is also clear that the trial court's

right to review the acts of the State Tenure

Commission is limited to two considerations

-whether 
such action was taken in accord-

ance with the requirements of the Teacher

Tenure Law, and whether the action was

"unjust." Title 52, $ 360, Code of Alabama,

1940, as amended.

t5,6] Due process must be observed by

all boards, as well as courts. Due process,

in more ordinary language, is held to mean

"fair play," as stated by the court in State

ex rel. Steele v. Board of Education of
Fairfield, 252 Ala.254, N So.2d 689, supra.

This decision is also the basis for the prin-

ciple of law that in referring to insubordina-

tion, although the term is not defined by

the statute, "unquestionably it includes the

willful refusal of a teacher to obey the rea-

sonable rules and regulations of his or her

employing board of education." There was

nothing in the record here establishing any

such willful refusal.

In applying these definitions and this test

to the case at hand, it is clear that the State

Al* 218 EOUTEEBIT BEPOBTEB, 2d SEBTES STATE TENIIRE OOU'N n MA
Clt(

process, * * :t the court may in caTenure Commission was justified in setting

aside the conclusions of the Madison County

Board of Education, and that the trial court

was unwarranted, from the evidence in tlr
record, in reaching its erroneous conclu.

sions. For the test before such court, as it

affects this appeal is: Was the conclusioo

of the State Tenure Commission unju*?

The preponderance of the evidence and thc

overwhelming weight of the evidence did

not warrant such a conclusion.

[7] lIn Pickens County Board of Educr'

tion v. Keasler, 263 Ala, 231,82 So.Zd 197,

decided by this court in 1955, among othc

things, it was held that the principal pur'

pose of the Teachers' Tenure law is to s+

cure peffnanency in the teaching force'

[8, 9] In the case of Board of Educatioo

of Choctaw County v. KennedY, 256 Ab

478,55 So.2d 511, supra, in referring to an'

other section of the tenure law, relativc to

the word "hearing" as used in $ 357, Tith

52, Code of 1940, as amended, that the ut
of the word "hearing" shows a manifci

purpose of compliance with the require

ments of due process of law, and furthcr

states as follows:

"t r * 'Arequirementof ahearinf

in the exercise of quasi-judicial powcn

has obvious reference to the tradition 0t

judicial proceedings with respect to thot

fundamental requirements of falfttc,

which are of the essence of due procd

in a proceeding of a judicial natuG

42 Am.Jur. p. 481, S l3S. 'It is the dutt

of the court to construe a statute so a! o

make it harmonize with the constitutd

if this can be done without doing violc0or

to the terms of the statute and the oro

nary canons of construction.' Atryt:
Morgan County et al., 245 Ala' Zal' 1
So.2d 5ll, 516. :r I 't In this conncs

tion in Almon v. Morgan County' et.rr

supra, it was aptly said: 'And to n[
an act confers on an administrative olE

cer or board the power and duty to flr'!
a conclusive finding of facts whicn "
fects the substantial riShts of. anofi
when to do so requires Proceour.'

ing out the intention of the legisla

hold that such process was intended tr
applied, t * *."

lfere, the constitutionality of the sta

r.s not an issue, but the requirementr

duc process are aptly pertinent.

In State ex rel. Mclntyre v. McEach,
8l Ala. 609, 166 So. 36, this court said

"'When a statute provides for the
moval of an officer for cause, it c

templates notice to the of ficer of
charge, and requires a tribunal of s<

lind to determine whether the cause
removal exists and whether such offi
can be removed.' ,t * * The Le1
lature prescribed that tribunal-the cc
of county commissioners. The find
of that tribunal may be reviewed by c

liorari or mandamus (respectively rvl
lppropriate), if it is wholly ,unsuppor

by the evidence, or is wholly depend
uPon a question of law, or is seen to
clcarly arbitrary, or capricious., * *

Keeping these principles in mind,
clnnot escape the conclusion that ht
lltc record discloses, the action of the tr
oun was clearly arbitrary.

Ilcre, it may be that this dedicated tea,
|'-made some unintentional and honest mtltcr, 

-but the record does not support a
rrcir that would warrant serious inpairmrc dcstruction of him as a teacher whi

ilXJ:t'" from the cancellation of I

j!]. trr. instant case is clearly d
Il:rh:a from the case of Cooper v. per
uunry Board of Education , 264 Ala. 2.

*$iilr:Iffi
*::::T.iffi ::,lT',':1, li,f il.'::
t ^-^ll: 

Loo|er, supra, also touches ,

r* ;:::f :i *:,H[;'1,]i.*"r.,:l



;..:i:ll,'."H,:ilJIlfil'1fi Iof Education. and thet

i, 2d SEBIES

lIn Pickens County Board of Edrrct
Keasler, ?-63 Ala. Z3l, gZ S":O iili by this court in 1955, among oUJit was held that ttre princip* p[,

f the Teachers' Tenure taw is to r.
errnanency in the teaching force.

] r In the case of Board of Educetro
rctaw County v. Kennedy, 250 ,ttr
So2d 5ll, supra, in referring to r9.

;ection of the tenure law, relativc 19
rrd "hearing" as used in $ 357, Trtk
de of 1940, as amended, that the ur
word "hearing') shows a manifcl

e of compliance with the require
of due process of law, and funhcr
as follows:

r i r 'A requirement of a hearinj
re exercise of quasi-judicial pou.en
obvious reference to the tradition ol
:ial proceedings with respect to thor
amental requirements of fairncl
h are of the essence of due procet
. proceeding of a judicial naturc.'
rn.Jur. P. ,El, $ 138. 'It is the duty
re court to construe a statute so sr tt,
: it harmonize with the constitutioo
is can be done without doing violenct
Le terms of the statute and the ordr.

canons of construction.' Almon r.
gan County et al., 245 Ala. 2{1, 16

t 5ll, 516. * * * In this conncc.

in Almon v. Morgan County, et rl'
r, it was aptly said: 'And so whca

ct confers on an administrative offi'
rr board the power and dutY to m&
nclusive finding of facts which lS

the substantial rights of anothcr,

r to do so requires Procedural dr

STATE TENURE COU'N v. MADISON OOITNTY BOARD Or ED. Ala. 8il5
Ctte as 213 So.2d 82i!

= .rr..rr, t * * the court may in carry- Coopcr, suPra, approves of what the Su-

ing ou, the .intention 
of the legislatute preme Court {..r10t"."":^T :,::.: ]: ?3,_.

arja,f,", such process was intended to be ex rel. Kent, 2ll Ind. 380, I N.E.2d 1006,

jpplied, 'i 'i *." 1008, 7 N.E.zd 183, said in interpreting the

- term "other good and just cause" as used

I{ere, the constitutionality of the statute in the Teachers, Tenure Law, to include any
Ir, not an issue, but the.requirements of 

cause which bears a reasonable reration to
I. p.o.ttt are aptly pertinent' 

the teacher's fitness or capacity to discharge

In State ex rel. Mclntyre v. McEachern, the duties of his position. Cooper, supra,

ft ll^.609, 166 So. 36, this court said: in referring tolhe Stiacr case, supra, stated

,r rg,/h€n a statute provides ror the re- [::j[jl1]ru:i,':,1'].t Tii;1":L.'r::.
moval of an .officer for cause, it con- vision "other good and just cause." we
templates notice.to the officer of the accept such a definition, but find no lack
charge, and requires- a.tribunal of some of cooperation established to any reason-
kind to determine rrh.eth3r the cause .for able degree by the record in the present
rernoval exists and whether such officer case. For here, we hold the statutory
can be removed.' .The 

Legis- grounds for cancellation were insufficiently
hture prescribed that tribunal-the. court supported by the evidence, to allow an af-
of county commissioners' 

. 
The. finding firmance of the judgment of the trial court.

of that tribunal may be reviewed by cer-

tiorari or mandamus (respectively when As said in County Board of Education of
appropriate), if it is wholly'unsupported Clarke County v. Oliver, 270 Ala. 107,116

by the evidence, or is wholly dependent So.2d 566, the question for decision is
upon a qtlestion of law, or is seen to be "whether the judgment of the trial court is

clearly arbitrary, or capricious.' * 'r * " correct, not whether the ground on which

Keeping these principles in mind, we the trial court professed to proceed is ten-

61nroi .i."pe the conclusion that here, able'"

the record discloses, the action of the trial The judgment of the trial court is re-
cturt was clearly arbitrary' versed and the cause is remanded to that

Here, it may be that this dedicated teach- court with directions to rescind and set

cr made some unintentional and honest mis- aside its peremptory writ of mandamus di-

takes, but the record does not support any rected to the State Tenure Commission

facts that worrld warrant serious inpairment which writ directed that Commission to
or destruction of him as a teacher which "revoke, repeal and rescind the findings
coultl result from the cancellation of his that the decision of the Madison County

contract. Board of Education in revoking the con-
tract of J. D. Wigley (the teacher) was

[0] The instant case is clearly dis- arbitrarily unjust." The force and effect
tinguished from the case of Cooper v. Perry of the judgment of this court on this appeal
County Board of Education, 261 Ala. 251, being that the cancellation of the teacher's
86 So.2d 832, f.or in the instant case, it is contract by the Madison County Board of
clear that the friendly relations that existed Education was and is voicl.
throughout among members of the local
hard and the members of the Board of For to hold otherwise would mean that
Trustees as existed in the Coopcl case, re- should the trial court's judgment be al-
garding the persons involved in that "can- lowed to stand, under the evidence as dis-
ctllation" hearing, did not exist in the case closed by the record on this appeal, no
hfore us. Coopcr, supra, also touches on tenure teacher would feel that the appellate
the meaning of the term "other good and function of the State Tenure Commission
iust cause," as mentioned in the statute. was anything but a powerless, effete for-

{-'#:,',".'-'t'fi :i[',:.r$For the test before su

; this appeal is: was',"fl".:Ti"il
r State Tenure Comm
:eponderance og ,1r" .rllt-1on 

uniq?

hetming weight o1 ,n.tol'll 
end t

rrrant such a conclusion.evidenec {l



836 Als.

um, unable to perform the duties vested in
it by the legislature. Tenure school teach-

ers are necessary and important to our
schools, for like the family and the church
in the community, they are helping to mold

the character of today's youths-tomor-
row's leaders.

Reversed and remanded with directions.

LMNGSTON, C. J., and MERRILL,

J., concur.

COLEMAN, J., concurs in result.

Loroy TAYLOR

Y.

STATE ol Alabama.

7 Dlv.7ll.

Supreme Court of Alabama.

Aug. 29, 1068.

The Circuit Court of Talladega Coun-

ty, William C. Sullivan, J., denied petition

for writ of error coram nobis, and petition-

er appealed. The Supreme Court, Lawson,

J., held that denying and dismissing the pe-

tition was not improper, notwithstanding

fact that case was one in which capital

punishment had been imposed, where coun-

sel who filed the petition were simply ei-

ther playing for time, or exPected trial
court to ignore all orderly procedure and

grant a continuance simply because one of
the attorneys found it inconvenient to be

present at time fixed for hearing of the

petition which the attorneys had filed with-
out even making known to defendant the

contents thereof.

Affirmed.

2r8 SOUTEEBII BEPOBTE& 2d SEBTES

t. Crlmlnal Law @997(l l)

Denying and dismissing petition fo;
writ of error coram nobis was not impropcr,
notwithstanding fact that case was one i
which capital punishment had been impor4
where counsel who filed the petition wctt
simply either playing for time, or expectol

trial court to ignore all orderly procedurr

and grant a continuance simply because or
of the attorneys found it inconvenient tt
be present at time fixed for hearing of thr
petition which the attorneys had filed witb
out even making known to defendant thc

contents thereof.

2. Crlmlnal Law r@llrl4

Although there was no evidentierY

hearing in support of allegations that de
fendant's rights were denied in that melu'

bers of Negro race were systematically and

arbitrarily excluded from grand jury whid
indicted defendant and petit jury whici
tried him, Supreme Court could reasonably

assume that defense counsel would havc

been unable to offer proof substantially

stronger than that produced in prior case t!
which same questions, regarding grand jury

of same county, were raised and resolvod

against the defendant. U.S.C.A.Conrg
Amend. 14.

3. Crlmlnal Law €>732

A criminal statute is not unconstits'

tional because it authorizes same jury to

determine both question of guilt and sco'

tence to be imposed. Code 19'10, Tit' l{' I
318.

4. Crlmlnal Law @!213

Homlclde @351

A death sentence is not a "cruel ud

unusual punishment", nor is a statute whif
authorizes imposition of the death sentotct

for murder unconstitutional.

5. Conltltutlonal Lev €=250, 265, 267

Petitioner, who was convicted of lit'}
degree murder in 1963, was not deptiuda
due process of law and equal protection 6
the law by fact that women were at tlr

TI
(

dre excluded from grand and Petit

dnce it was not until 1965 that three

lcderal court nonretroactively helr

lrtutes of Alabama totally excluding

cn from jury service were unconstitt

U.S.C.A.Const. Amend. 14; Code l9
s,$21. 

*
Chas. S. ConleY, MontgomerY, Dot

Jclinek, Selma, C. Erskine Smith' Bi

bam, for appellant.

MacDonald Gallion, AttY. Gen., ar

rid W. Clark, Asst. Atty. Gen., I

State.

LAWSON, Justice.

This is an appeal by Leroy Taytc
r judgment of the Circuit Court of
dcga County wherein a petition for
lrror coram nobis filed on behalf c

lor was "denied and dismissed."

Taylor, a Negro, was indicted by i
iury of Talladega County on April I
lor the first degree murder of (

l[arie Hawkins, a Negro girl sever

of age. He pleaded not guilty a

Stilty by reason of insanity. Ul
trial upon that indictment the juq
[io guilty and imposed the death
Judgment and sentence were in acco
tf,e verdict. On February 6, lg&,
lirmed the iudement of the trial ,

Trylor v. st"t.,"zzo A!a.232,160 So
TrYlor did not seek a review of ou:
lY the Supreme Court of the United

In the trial court and on appeal
Qttrt Taylor was represented by
lnd experienced member of the T:
taunty Bar who, on August 18, l9
E this court on behalf of Taylor a
lor leave to file a writ of error cora
b the Circuit Court of Talladega
Q the sole ground that Taylor's corrr illegal because of the use of a
lI. W. denied the oetition on Au
1965, without opini,oi. The petit
tlvc to file petition for writ of errc