Monroe v. City of Jackson Board of Commissioners Brief for Plaintiffs-Appellants

    d SEBIES

hout merit because they are 1so
nd present nothing for our j6-
rtional Life and Accident Insur.
v. Allen, 285 Ala. 551, 234 So.2d

); Smith v. McCain Boiler 316
ng Co., 84 Ala. 618, 227 So.ZA

).

In assignment of error No. f,,
nded that the trial judge erred in
hat all doubts and disputes con-
he land were resolved since 1
undivided interest belonging to
of Jerry Ford, respondent Ford,s
husband, is still outstanding. We
erit in this assig'nment.

in proceedings are brought 1e

tle under the above mentioned
ctions [Sections ll@-ll15, Title
of Alabama 19401, its purposes

rtated in Dake v. Inglis, 239 Ala.
So. 673:

e purpose of the proceeding is not
rt the court with jurisdiction to
dispose of the title to the land,
rely to determine atd settle the
' betzaeen the complainant and the

ttts. Code 1923, $ 9908 [Code
it. 7, S lll2l, Grayson v. Muckle-
I Ala. 182, 124 So. 217; Venable
er,236 AIa.483, 183 So.6,{4.

:refore, the fact that there are

who might assert claims to the

/, who are not made parties, is

obstacle to proceeding to a final
settling the title as between the

to the biU. The decree is only
ve against such as are made par-
their privies. Grayson v. Muck-

upra.' (Emphasis ours.)" State
{,ttorney General v. Tarleton, 279

i, 188 So.2d 516 (l%6).

rssignments of error Nos. 9, l0
re not argued in brief. Conse-

hey are deemed to be waived.
Revised Rutes of the Supreme
) Ala. XXI, XXVI; 2A Ala.Dig.,
rd Error, €1078(l).

MADISON COUNTY BOARD OF
EDUCATION elc., ci al.

v.

J. D. WIGLEY.

8,Dlv. 419.

Supreme Court of Alabama.

lllarch 16, 1972.

Discharged teacher's action for judg-

ment declaring his right to reinstatement
with back salary and for other relief. The
Circuit Court of Madison County, in Equi-
ty, Thomas N. Younger, J., rendered judg-
ment from which defendants appealed.

The Supreme Court, Merrill, J., held that
statute providing that teacher dismissed as

result of hearing should not receive com-
pensation for period of suspension pending
hearing did not preclude recovery of back
salary for suspension period where Su-
preme Court determined that discharge
was improper.

Affirmed in part, modified, and re-
manded with directions.

l. Dcclaratory Judgmrnt @325

Ordinarily, where bill for declaratory
judgment shows bona fide justiciable con-
troversy which should be settled, demurrer
rhould be overruled and declaration of
rights made and entered only. after answer

259 So.2d--r5r/r

UADISON OOITNTY BOAAD OP EDUOATIONv. WIOLEY Ala. BB
Clte ae 260 Eo.2d 288

lJavin1 carefully considered all the as- and on such evidence as parties may deem

riqrrrnents of error, we conclude that the Proper to introduce.

iliat d..t.. of the trial court should be af-

iirr.a. 2' Drclsratorv Jude mcnt @319

Affirmed'
Discharged teacher's action for judg-

ment declaring his right to back salary and
reinstatement disclosed justiciable contro-

HEFLIN, C. J., and MERRILL, COLE- versy, in alleging that defendants had not
MAN and McCALL, JJ., concur. followed normal course of behavior after

earlier Supreme Court determination that
discharge was improper. Equity Rules,
rule 63; Code of Ala., Tit. 7, $$ 157, 158,

lffi,163,167,

3. Spcclflc P61f61611ss @/t
Where county board of education

refused to reinstate teacher after Supreme
Court decision that its action in cancelling
contract was arbitrarily unjust, teacher
could seek specific performance. Code of
Ala., Tit. 52, $S 351 et seq.,361(l).

4. Declaralory Judgmcnt @391

Specif ic performance is available on
petition for supplemental relief in declara-
tory jrrdgment proceeding.

5. Dcctaratory Judgmcnt @2t0

Discharged teacher was entitled to
maintain declaratory judgment action for
back pay and reinstatement, after rein-
statement, where reinstatement was accept-
ed on condition that it should not affect
suit and questions of tenure, salary and
fringe benefit were left for decision.

6. Echoole and Schoo! DlBtrlcts €t4t(6), t45

Discharged teacher, whose discharge
had been determined to be improper by
court, was not required to follow adminis-
trative remedies by asking review by State
Superintendent of Education before suing
for back pay and reinstatement. Code of
Ala., Tit. 52,5 47.

7. Echoola and Schoo! Dlrtrlcls @144(3)

Statute providing that teacher dis-
missed as result of hearing should not re-
ceive compensation for period of suspen-

sion pending hearing did not preclude re-



?34

covery of back salary for suspension peri-

od where Supreme Court determined that
discharge was improper. Code of Ala,, Tit.
52, S 359.

8. Schoolt and School Dlrtrlctr @t4l(0), I'15

State Superintendent and State Board

of Education were not necessary parties to

teacher's action against county board of
education for back salary and reinstate-

ment, although payment of back salary

would require additional funds over which
state officials had some control or supervi-

sion, where it did not appear that state of-
ficials knew about or had anything to do

with actions of county board. Code of
Ala., Tit. 52, S 99.

9. Trla! erl l(3)

Defendants in teacher's action for
back salary in reinstatement were not enti-

tled to have case transferred to law side of
docket. Code of Ala., Tit. 5a $ 3CI.

10. .lury €al2(3)

Defendants in teacher's action for
judgment declaring right to back salary

and reinstatement were not entitled to jury
trial where all material facts had been de-

cided in earlier case and only questions

were ones of law arising from constrtrction
of statutes and mathematical computation
of back salary.

I l. Wltnorltt @275(6)

Plaintiff teacher in action for judg-

ment declaring his right to back salary and

reinstatement was not subject to cross-ex-

amination as to whether he had applied for
other teaching jobs.

12. Damagcr €=02(4)

Discharged teacher need not seek like
employment in same locality to mitigate
damages.

t3. School. and School Olttrlctt @133.8

Purpose of teacher tenure law is to in-
sure teachers some measure of security and

to secure permanency in teaching force.

269 SOUTEER.N BEPOBTEB, 2d SEBIESAlo.

14. Schoolr and School Dlrtrlotr @133.9

Teacher tenure statutes are to be read

into all contracts entered into by school

boards and teachers,

15. Schooh and Sohool Dlrtrlctr @145

Improperly discharged teacher was not

barred by laches from recovering back sal-

ary where he applied for back salary with-

in a week after final ruling in judicial de-

cision finding his discharge improper.

16. Appcal and Error @110,8?0(6)

No appeal lay from order or decree

overruling application for rehearing in eq'

uity where it did not modify decree, and

was not subject to review on assignments

of error on appeal from final decree. Eq-

uity Rules, rule 62.

*-

Ford, Caldwell, Ford & Payne, and Rob-

ert L. Hodges, Huntsville, for apPellants.

Watts, Salmon, Roberts & Stephens,

Huntsville, for appellee.

MERRILL, Justice.

This appeal is from a decree in a declar-

atory judgment proceeding in equity order-

ing back pay for a teacher who was un-

justly discharged.

J. D. Wigley, the apPellee, who will
hereafter be referred to as "the t€acher,"

was a vocational agriculture teacher in

Buckhorn School in Madison County with

"tenure" or continuing service status. The

County Board of Education gave notice to

the teacher that it was canceling his em'

ployment for certain stated reasons under

and according to the provisions of Tit,52,

$ 359, Code 1940, as amended. After a

contested hearing, the Board canceled thc

contract on September 25, 1963, and the

teacher appealed to the State Tenure Corn'

mission as provided in $ 360. That Com'

mission held that the action of the CountY

Board of Education was arbitrary and un'

just. The Board sought a review of this

UADISO.}I GOI'}II[ BOI

dccision by mandamus in the circuit

rs provided in $ 351. The circuit cour

aside the ruling of the Tenure Comrn:

rnd the teacher appealed to this courl

In State Tenure Commission v' \Ia
County Board of Education, N' ,\tz
213 So.2d 823, this court, in is opinio

out and discussed the chargcs in dct

they will not be rePeated here, ard

court reversed the judgment of the

court and rehearing was denied on Se

bcr 19, 1968.

On September 21, 1968' the :c

wrote the County Superintendent oi
cation and, after relating the history

case, asked to be "permitted to res=
profession as a teacher in the l'1:

County School System," and requetra
ment of accrued salaries since Se;:
r, l%3.

The County Board of Educatioo i
offer him a teaching Position nor
pay any accrued salary, sn the teacle
the declaratory judgment Proo
against the Board of Education, i=

vidual members and oflicers, t'hic
the beginning of the instant suil
prayer for relief sougtt (l) a coo-'r:

of the teacher's contract (an exh:.bi
bill) and a declaration o!: the rights
parties thereunder to thc extent t:e
Plainant be declared to bc entiCed
sume a teaching position, (2) tta,
plainant be entitled to rq:over fro'
lPondents his back salury, sith :
thcreon, from Septembcr ?5, l%3,:
the filing of the bill of complaint a:
termination by the court of tic s
thereof, (3) that respoodents bc ori
P8Y to complainant the sro detcr:
the complainant or, in the altercrr
thc court render a judgucot ia !
comPlainant and against thc rtsp
n their official capacitics, for thc
ucertained due by rb. cflrt rih :
({) that the court r6ld ordE
tDondents to allorr cmplaitr rrt :D
hir prior teaching positi.n rith $c
dcnt Board and (5) to pa, ro cq



RTEB, 9d 8TEE

a. EChOOla rrtl b.---E-ir

Teacher t--- 
-- 

: L {
ntoallcontre=--vgrl
Oards and tPz-=

5. Schooh r.d--t
Improperi- E- 

-Eerarred by lach: :-- Ei tl-
rry where he z7-- = :.:iq u[
n a week afv- :- -: : .--'ts
:ision finding i: =----:

6. APpcal lnd=?---_-
No appez. : -: : =.ir're

)verruling aPD:: =- E q-
rity where i: = - =:-- :- d
uas not subj- : =-]-6r
rf error on aE- : :- e= \
rity Rules, ruk:

Ford, Calds': -- - r-1 d. toiF
:rt L. Hod3:e 

-- 
- = !=F-'-"a

Watts, Sr-- -: : S;Les'
Fluntsville, fo-.-

MERRILL :==-

Thisappea-: ::::-i:'-
rtory judgm:: :-:-: : ==:- :::c:'
ing back pa:' : - - -- r- r= rr.-

iustly discha::-

J. D, \[:rs.: : ==:: 5-j r.ll
irereafter be -:-- - -- --=€r,-
was a voca==- -: -l- [!
Buckhorn Scirc 

- 
,:; rith

''tenurett or E---:--= :' J!3

ployment fo: =: ,.....- -=-iry-'edcr

and accordin: - = -=: 
'-t :'- ?,

$ 359, Codt - - :=- -r--- r
contested he::= : -=: ..-ia 6c

contract on ::. - -;-- =C tbc

teacher aPPea=, =.: l:t Co-
mission as p:--:- : r- 7z Cm'
mission hekl -- :-: ' =c CmtY
Board of Ei--= -: =C tm-

UADISON OOIINTY BOABD Of EDUCATION v. WIOLEY
Clte ee 260 Bo2d 2sB

,rrcision by mandamus in the circuit court a salary comparable to other teachers of

]. orovidea in $ 361. The circuit court set the complainant's qualifications, education

..ia. tt. ruling of the Tenure Commission and exPerience for his teaching services

,na rfr. teacher appealed to this court. performed, and (6) a prayer for general

relief.
Irr State Tenure Commission v. Madison

County Board of Education, 282 A[a.658,

Zfi So.Zd 823, this court, in its opinion, set

out and discussed the charges in detail so

thel' will not be repeated here, and this

court reversed the judgment of the trial

court and rehearing was denied on Septem-

5cr 19, 1968'

On September 24, 1968, the teacher

wrote the County Superintendent of Edu-

sation and, after relating the history of the

6ase, asked to be "permitted to resume his

orofession as a teacher in the Madison

tornty School System," and requested pay-

ment of accrued salaries since September

l, 1963.

The County Board of Education did not

offer him a teaching position nor did it
pay any accrued salary, so the teacher filed

ittr declaratory judgment proceeding

against the Board of Education, its indi-

vidual members and officers, which was

the beginning of the instant suit. The

prayer for relief sought (l) a construction

of the teacher's contract (an exhibit to the

bill) and a declaration of the rights of the

parties thereunder to the extent that com-

plainant be declared to be entitled to re-

sume a teaching position, (2) that com-

plainant be entitled to recover from the re-

sporrdents his back salary, with interest

thereon, from September 26,1963, through

the filing of the bill of complaint and a de-

termination by the court of the sum due

thereof, (3) that respondents be ordered to

pay to complainant the sum determined due

the complainant or, in the alternative' that

the court render a judgment in favor of
complainant and against the respondents,
in their official capacities, for the amount

ascertained due by the court with interest,
(4) that the court would order the re-
spondents to allow complainant to resume

his prior teaching position with the rcsPon-

dent Board and (5) to pay to complainant

Ala.

Demurrers of the separate and several

respondents were overruled and they filed
their answer setting up at least sixteen de-

fenses, most of which will be discussed as

we take up the argued assignments of er-
ror. On October 13, 1969, the complainant
filed a motion for a hearing "to test the

sufficiency of each plea of each respon-

dent." After the hearing, the trial court
entered a decree which, in effect, held that

all the defenses excePt the general issues

were legally insufficient and set the date

for trial as June 17,1970.

On June 8, respondents filed a motion to
dismiss the action because the teacher had

resumed his employment and there was no

equitable basis for maintaining the action'

Jury demand was also filed' On June 17,

respondents moved that the case be trans-

ferred to the taw side of the court. All of
these motions were denied and the trial
was begun on June 17.

On September 28,1970, the court entered

its decree declaring (l) that the complain-
ant was entitled to be reinstated by the re-

spondents as a teacher with continuing

service status at a salary equal to the sala-

ry of other teachers of his quatification,

education and experience and that the re-

spondents were entitled to receive the

teaching services of the complainant in re-

turn, (2) that the complainant "has the le-

gal right and is entitled to receive from

the Madison County Board of Education

of Madison County, Alabama ." and

the other respondents, and that the re-

spondents had the legal duty and obligation

to pay or cause to be paid to the complain-

ant for the period from August 1, 1963, to

February 4, 1970, both dates inclusivc,

being the period when the said J' D. Wig-
ley was contractually entitled to be paid

but was receiving no PaY, the sum of

$62,600.58, and the court furthcr decreed

235



236 Ala.

that the further sum of six per ct:nt per

annum on the principal sum of $511,048.32

from February 4, 1970 to the date said sum

was paid was entitled to be received by the

complainant. The court further ,lecreed

that in the event respondents did not ac-

cord the complainant the legal riglrts and

obligations therein determined within thirty
days from the date thereof, the court, on

petition of the complainant, woutil grant

such supplemental relief as may be neces-

sary or proper to effectuate the relief
therein determined to be due the corrplain-
ant. Application for rehearing was over-

ruled and this appeal was taken December

D, t970.

Appellants' first assignment of error
charges that the court erred in overruling
the demurrer of each respondent to the bill
of complaint. Appellants' position is that
the bill is without equity.

Title 7, $ 157, Code 1940, Permits anY

person interested under a written contract

to have it construed; and $ 158 states that

a contract may be construed either before

or after there has been a breach thereof.

See also SS 160, 163, 167 and Equity Rule

63.

tll Ordinarily, where the bill for a de-

claratory judgment shows a bona fide jus-

ticiable controversy which should be set-

tled, the demurrer thereto should be over-

ruled and a declaration of rights mzrde and

entered only after answer and on such evi-

dence as the parties may deem proper to
introduce on submission for final decree.

City of Mobile v. Jax Distributing Co.'

Lnc.,267 Ala. N, l0l So.2d 295, and cases

there cited.

121 A justiciabte controversy u/as flot

only alleged but the bill showed on its face

that the cause had already been to this

court Previously and that the appellants

had not followed the normal course of be-

havior after our decision was rendered in

that suit.

269 SOUTETBN REPOBTEB,2d SERIES

Assignment 3 charges error in the over-

ruling of the demurrer to that aspect of
the bill seeking payment of back salary.

Under the tenure act, Tit. 52, $ 351 et

seq., Code 1940, as amended, the County

Board of Education does not have the

right to terminate the employment contract

of a teacher on continuing service status

and pay damages for the breach, and a

teacher cannot quit his teaching job except

under certain circumstances (not here ap-

plicable) under penalty of not being al-

lowed to teach again ($ 361(1), Recom-

pilation).

t3] When the County Board refused to

reinstate the teacher after this court's deci-

sion that its action was arbitrarily unjust,

one of the teacher's remedies was to seek

specific performance of the contract.

t4] Specif ic performance is available

on a petition for supplemental relief in a

declaratory judgment proceeding in equity.

Madison Limestone Co. v. McDonald,, 264

Ala. D5,87 So.2d 539; Dozier v. TroY

Drive In Theatres. Inc., 258 Ala, 417, 63

So.2d 368. See Alabama Power Co. v'

Haygood, 266 Ala. 194, 95 So.2d 98, where

the employee's contract provided for his

reinstatement, and this court held that his

bill for declaratory judgment, as amended,

which also sought restoration of seniority

rights, sick and other benefits, restoration

of rights of employment and compensation

for the damages he sustained as the result

of the breach of the contract, was good as

against demurrer.

15] Assignment 74 charges error in the

overruling of the reassigned demurrers to

the bill as last amended. Appellants argue

that after the bill was amended in the

progress of the trial by showing he had

been reinstated as a teacher, nothing was

left for the trial court to do except the de'

termination as to whether the teacher was

entitled to back salary and the amount

thereof with interest. We disagree.

UADISON OOI'NTY

The amendment showing reen

of the teacher also c(f,ntained tt
ing: tt * :i tr said re-emPloYr

accepted on condition that it not

rights of the comPlainant in th
said re-emPloYment dirl not occur

cr this suit was commenced; st

ployment is a mere confession of

of an asPect or of one asPect of

complaint." The decree also de

status of the teacher as to tenu

and fringe benefits, and it is ob

there was more left in the case

salary and interest thereon.

t6l Assignments 17 and 18 I

ror in the court's holding as ir

the defense that the teacher fai'

low through his admirristrative rr
not asking a review by the Stat
tendent of Education under Tit
This section has no connection w

er Tenure and there is no mer'

assignments.

Assignment 16 raises a tl

Point. Appellants contend that t

ing language in Tit. 52, S 359,

recovery of back salary by th
"t * * NothinghereinProv
tcnd€d to prevent the susPen

teacher pending a hearing on

Posed cancellation and the final
tion thereof. No teacher dismi
result of such hearing shall re

Pensation for the pr:riod of su

SiOn. * :| t"

The teacher was suspended
28, 1963, pending the outcome c

ing before the County Board in
APpellants contend that he rer
Pcnded until applical;ion for rel
overruled in this court on Se1

1968. We cannot br:lieve that
tcnt of the Legislature. Ev:
trial court did not either becaus
ordered payment of back salar
Sust l, 1963. That part of tt
clrrttary to the pror.isions of $
rupra.



2d 8EBIEs

ment 3 charges error in the over-
I the demurrer to that aspect of
:eking payment of back salary.

the tenure act, Tit. 52, $ 351 et
le 1940, as amended, the County
f Education does not have the
:erminate the employment contract
cher on continuing service status
damages for the breach, and 1

annot quit his teaching job except
rtain circumstances (not here ap-
under penalty of not being 4-
teach again (g 361(l), Recom-

/hen the County Board refused to
the teacher after this court's deci-
its action was arbitrarily unjust,

re teacher's remedies was to seek

erformance of the contract.

rccific performance is available
tion for supplemental relief in a
'y judgment proceeding in equity.
Limestone Co. v. McDonald,, 264
87 So2d 539; Dozier v. Troy
Theatres, Inc., 258 Ala. 417, 63

l. See Alabama Power Co. v.
?:56 Ala. 194,95 So.2d 98, where
ryee's contract provided for his
rent, and this court held that his
:claratory judgment, as amended,
o sought restoration of seniority
k and other benefits, restoration
of employment and compensation
rmages he sustained as the result
rach of the contract, was good as

:murrer.

isignment 74 charges error in the

: of the reassigned demurrers to
last amended. Appellants argue
' the bill was amended in the
>f the trial by showing he had
rtated as a teacher, nothing was

e trial court to do except the de-

n as to whether'the teacher was

r back salary and the amount
!h interest. We disagree.

UADISON OOITNTY BOAID Of EDUOATION v. WIGLEY Ala' 237
Clte as 250 8o2d 2&B

Tle amendment showing reemployment There is no question but that the teacher

6f the teacher also contained the follow- was legally suspended, whether without
';, ., ri 'l * said re-employment was cause or unjustly. But the Legislature

,...0,.a on condition that it not affect the says he shall not receive compensation dur-

igfrs of the complainant in this action; ing the period of suspension. The statutes

*,ia r.-.rrrptoyment did not occur until aft- are silent as to how long the suspension

I tni, srit was commenced; said re-em- lasts. The first two sentences of $ 360

otoyment is a mere confession of a portion read:

of ,n "tP..t 
or of one asPect of the bill of

Iompt"int." The decree also declared the "The action of the employing board

,jr,rt oi the teacher as to tenure, salary shall be final in its action on cancellation

.na tr;ng. benefits, and it is obvious that of a teacher's contract provided such ac-

iir,, *". more left in the case than back tion was in compliance with the provi-

,.trry "na 
interest thereon. sions of this chapter and was not arbi-

trarily unjust. The teacher shall have

t6] Assignments 17 and 18 charge er- the right to appeal to the state tenure

ror in the court's holding as insufficient commission as hereinafter established to

1t1s ,lefense that the teacher failed to fol- obtain a review by the commission as to

low through his administrative remedies by whether such action was in compliance

not ;rsking a review by the State Superin- with this chapter and whether such ac-

tendent of Education under Tit. 52, S 47. tion was arbitrarily unjust' tr I * "

This section has no connection with Teach-

er T'enure and there is no merit in those The appeal to the State Tenure commis-

assislments. 
s 'u ,rLr 

;lT.'i:::"'t'.'::1.:l.tl'r,:ffftil:':
A:;signment 16 raises a troublesome final determination insofar as the educa-

poin.:. Appellants contend that the follow- tion field was concerned. From there the

ing l"r,guage in Tit. 52, $ 359, precludes only recourse of either Party to the contro-

,..oo.ry of back salary by the teacher: versy is to turn to the courts' Section 361

'l * 'l * Nothing herein provided is in- provides:

tended to prevent the suspension of " ,,The action of the state tenure com-
teacher pending a hearing on such pro- . transfers of teach-
posec cancellation and the final determina- mtsslon ln revlewlng

tion thereof. No tcacher dismissed as the ers or cancellation of teacher contracts'

resu.t of such hearing shall receive com- if made in compliance with the provi-

pensation for the period of such suspen- sions of this chapter' and unless unjust'

sion. * * *,, 
uu ur DuLrr JUJP!, shall be final and conclusive. whether

such action complies with the provisions

Tle teacher was suspended on August of this chapter and whether such action

28, 1963, pending the outcome of the hear- is unjust, may be reviewed by petition

ing llefore the County Board in September. for mandamus filed in the circuit court

Appr:llants contend that he remained sus- of the county where said school system

pended until application for rehearing was is located'"

overruled in this court on September 19,

l%g. we cannot believe that was the in- our real problem is ascertaining the leg-

tent or the Legisrature. Evidently, the :,'rfj'[":*';':,::,:* ::':'i::r,T "] li3;
trial court did not either because its decree

ordered payment of back salary from Au- hearing shall receive compensation for the

gust l, 1963. That part of the decree is period of such suspension'"

cont:rary to the provisions of $ 359 quoted The Act, taken as a whole, seems to

supr,r. have been written to take care of a situa-



238 Ala. 260 SOUTEEBN BEPOBTEB, 2d SEBIEE

tion when the ultimate and final determi-
nation is that a teacher is properly dis-

missed. We find no reference to the pro-

cedure to be followed when it is finally de-

termined that a teacher should not be dis-

missed.

L7l This leads us to think that the Leg-
islature intended that when a final deter-

mination was made deciding a teacher

should not have been dismissed, whether at

the County Board hearing, at the State

Tenure Commission, the circuit court or
the appellate courts, the original suspension

by the County Board and the entire period

of suspension should be held for naught in-
sofar as back salary is concerned, and a

teacher would be entitled to accrued back

salary for all the time he was unjustly sus-

pended. See Tipton v. Board of Education
of Blount County, 276 Ala.57l, 165 So.2d

r20.

We hold, therefore, that the sentence

quoted supra from $ 359 applies only to
those lawful suspensions where the "final
determination" is that the cancellation of a
teacher's contract was proper, but where
the "final determination" is that the can-

cellation was improper, the suspension be-

comes ineffective and a teacher is entitled
to back salary from the date of his last sal-

ary payment.

What we have already said disposes of
assignments 3 and 76.

Appellants argue under assignments ll
and 12 that the court erred because it had

no power to grant the relief prayed for
(back salary) because the State Superin-
tendent of Education and the State Board

of Education were necessary parties.

They contend that the payment of the back

salary will require a call for additional
funds over which the State Superintendent
and the State Board have some control or
supervision.

t8l Title 52, $ 99, Code 1940, gives a

County Board of Education the power to

sue and contract, and this court has said

that City and County Boards of Education

"may sue and be stted." Daves v. Rain,

230 Ala. 304, 16l So. 108, and cases there
cited. The Madison County Board of Edu-

cation cancelled this teacher's contract,
suspended him and kept him out of his

profession as a teacher with tenure for a

long time. There is no intimation from
the evidence that the State Superintendent
of Education or the State Board of Educa-

tion either knew about or had anything to
do with any of the actions of the County
Board in the instant matter. Assignments
ll and 12 are without merit.

Assignments 29, 3l and 35 charge error
in the refusal of the court to grant a jury
trial or to transfer the case to the law side

of the docket.

In Reed v. Hill, 262 Ala. 662, N So.Zd

728, this court said:

"It may be conceded that a party to a

bill seeking a declaratory judgment is

entitled to a jury trial as a matter of
right if he would have had such a right
in the cause of action for which the de-

claratory relief may be considered a sub-

stitute. Tuscaloosa County v. Shamblin,
233 Ala.6, 169 So. 234; Annotation, 13

A.LP..Z{777.

"But in all other cases a jury trial on

issues presented by a bill in equity for a

declaratory judgment is permissive only'

$ 164, Title 7, Code 1940. See Sharn'

blin's case, supra (syl.3)."

The last sentence of Tit. 52, $ 360 reads:
.. * t :r No action at law shall lie for

the recovery of damages for the breach

of any employment contract of a teacher

in the public schools."

In Tipton v. Board of Education of

Blount County, 276 Ala. 571, 165 So'Zd

120, this court said that t' * * i this

inhibition against an action at law to re'

cover damages was inserted to precludc

any aggrieved teacher from employing a

UADISON OOI'NT ]

ruit for damages as an alternate nt

obtaining a review, and also from

ing punitive damages lor wrongfr

cution of charges as grounds for h

discharge. We do not think it wa

tcntion of the legislature to deny I

compensatory damages, lawfullY
for his or her wrongful discharg

compensatory damages would inc

of salary unless mitigated by other

ment. Benziger v. M[iller, 50 I

N."
There is no exPress Provisior

Teacher Tenure Act, $$ 351-361(

teacher to ask for back salarY.

not to be understood a.s holding t

is improper, but we rrote that $

amended, provides for only two
be decided by the State Tenure
sion. Theseare: "I I I whe
action was in compliance with thi
and whether such act.ion was a

unjust. * * ,r " But Tipton, sr

ognizes the right to back salary
dismissal of a teacher is arbitraril

t9l It is understandable tha'
for a teacher entitled to back sala

rtay away from an action at lav
of the last sentence of $ 360.
this case was properly brought.

tl0l As to the request for j
wC agree that the request was
overruled. All the material facts
cided in the original case. The o
rid questions here were questior
rrising from a construction of
ncnt statutes and a mathematical
tion of the back salary.

Assigrrments 36,37,38, 39, 69,
charge error in the sustaining of
to questions asked, the teacher on
rmination whether ire applied fc
tional agriculture teaching job in
county or any other school syster
cific countieJ other than Madisor

[1r,12] we think the object
PtoPerly sustained. In the first



2d sEP.rps

contract, and this court has said
y and County Boards of Educatiol
te and be sued." Daves v. R1i1,
. 304, 16l So. 108, and cases there
lhe Madison County Board of f6u-
cancelled this teacher's contrasq
ld him and kept him out of his
on as a teacher with tenure for 1
re. There is no intimation fro6
ence that the State Superintendent
ation or the State Board of Educa-
rer knew about or had anything ts
any of the actions of the County

r the instant matter. Assignments
2 are without merit.

lmcnts 29, 3l and 35 charge error
:fusal of the court to grant a jury
to transfer the case to the law side
ocket.

ed v. Hill, 262 Ala. 662, 80 So.2d

court said:

may be conceded that a party to a

:eking a declaratory judgment is
d to a jury trial as a matter of
if he would have had such a right
cause of action for which the de-

rry relief may be considered a suL
. Tuscaloosa County v. Shamblin,
la. 6, 169 So. 234; Annotation, 13

,2d777.

t in all other cases a jury trial on
presented by a bill in equity for a

rtory judgment is permissive only.
Title 7, Code 1940. See Sham-

:ase, supra (syl. 3)."

sentence of Tit. 52, $ 360 reads:
* No action at law shall lie for

:overy of damages for the breach
employment contract of a teacher

public schools."

)ton v. Board of Education of
)ounty, 276 Ala. 571, 165 So.2d

court said that "* * t this
r against an action at law to re-

rmages was inserted to preclude
:ieved teacher from employing a

UADIEON OOITNTY BOABD Of EDUOATION v. WIOITEY Ala' t$9
Ctte at 260 gord 293

suit for damages as an alternate method of teacher would not have continuing service

,U,r;nlng a review, and also from recover- status in the other counties. As already

;1g punitive damages for wrongful prose- shown this contract was not like the regu-

cuiion oi charges as grounds for his or her lar employment contract, where the ex-em-

dis.h"tg.. We do not think it was the in- ployee is under a duty, pending his suit for

tention of the legislature to deny a teacher damages for breach of his employment

compensatory damages, lawfully pursued, contract, to seek like employment in the

for his or her wrongful discharge. Such same locality. Brotherhood of Railroad

compensatory damages would include loss Trainmen v. Barnhill, 214 A1a.565, 108 So.

of salary unless mitigated by other employ- 456.

rnent. Benziger v. Miller, 50 Ala. 206,

zf.g;'

There is no express provision in the

Teacher Tenure Act, $$ 351-361(3)' for a

teacher to ask for back salary. We are

not to be understood as holding that such

is improper, but we note that $ 360' as

amended, provides for only two issues to

be decided by the State Tenure Commis-

sion. These are: " * '| * whether such

action was in compliance with this chapter

and whether such action was arbitrarily
unjust. t 't * )' B* TiPton, suPra, rec-

ogxizes the right to back salary when the

dismissal of a teacher is arbitrarily unjust.

t9l It is understandable that counsel

for a teacher entitled to back salary would

stay away from an action at law in view

of the last sentence of $ 360' We think
this case was properly brought.

tlOl As to the request for jury trial,
we agree that the request was correctly
overruled. All the material facts were de-

cided in the original case. The only mate-

rial questions here were questions of law

arising from a construction of the perti-
nent statutes and a mathematical comPuta-

tion of the back salary.

Assignments 36,37,38, 39, 69,70 and 7l
charge error in the sustaining of objections
to questions asked the teacher on cross-ex-

amination whether he applied for a voca-

tional agriculture teaching job in any other
county or any other schoot system' or sPe-

cific counties other than Madison.

[], 12] We think the objections were
properly sustained. In the first ptace, the

[13, 14] The doctrine of mitigation of
damages in ordinary contracts is contrary
to the Teacher Tenure statutes. The pur-

pose of the law was to "insure to the

teachers some measure of security,"

Board of Education of Marshall County v.

Baugh, 240 Ala.3gl, l99 So.822; "to se-

cure permanency in the teaching force,"
Pickens County Board of Education v.

Keasler, 263 Ala. 231, U So.Zl 197, and

the Teacher Tenure statutes "are to be

read into all contracts entered into by the

school boards, and teachers," Board of
School Com'rs v. Hahn, 246 Ala. 662, 22

So.2d 91.

In State ex rel. Broyles v. Tangipahoa

Parish School Board (La.), 6 So.2d 696,

the Court of Appeals, First Cir., held that
a permanent teacher under the tenure law
who had been improperly discharged, was

only entitled to be reinstated as a perma-

nent teacher in an approved high school of
the parish at the salary of ($101.00) in ac-

cordance with his grade, certificate and

status. But even though he chose not to
remain idle and secured another teaching
position in another parish at a slightly
smaller salary ($92.50), and the trial court
granted him onty the difference ($8.50) in
his prior salary and the salary he drew in
the new parish, the appellate court granted

him the full salary ($101.00) he would

have received had he not been improperly

discharged.

Appellants' argument under assignment

13 charges error in the court's failure to
apply the principle of laches to the teacher

because he made no demand upon appel-



2l0 Ala.

lants for his back salary until September,
l!)68, following the overruling of the appli-
cation for rehearing in the original appeal

in this court. We cannot agree.

tls] The question of back salary could
not definitely arise until the propriety of
the cancellation of his contract was settled.
This court held that the cancellation was

arbitrary and unjust. The teacher applied
for his back salary within a week after the
application for rehearing was overruled.
This was not sufficient delay to permit the

application of laches.

[6] Finally, assignment 78 charges er-
ror in the overruling of the apptication for
rehearing. No appeal will lie from an or-
der or a decree overruling an application
for rehearing in equity unless it modifies
the decree. Equity Rule 62. Such a de-

cree is not subject to review on assign-

ments of error on appeal from the final
decree. Skipper v. Skipper, 280 Ala. 506,

195 So.2d 797; Sylvester v. Strickland,278
A[a.278,177 5o.2d905.

There is one modification due to be

made in the decree. The trial court grant-
ed back pay from August l, 1963. Accord-
ing to the evidence it should be September
l, 11)63. The teacher was asked: "Were
you paid for your services through August
30, 1963 ?" and he answered "Yes."

The cause will be remanded merely for a
recomputation of the amount of back sala-

ry due beginning September l, 1963.

The decree of the trial court is affirmed
in all respects except that it is modified
only as to the time back salary is payable

and the amount thereof, and is remanded

to the trial court for computation of the

correct amount.

Affirmed in part, modified and remand-

ed with directions.

LAWSON, HARWOOD, MADDOX
and McCALL, JJ., concur.

860 SOUTEERN BEPOR,TEB, 2d SEBIES

EllzaDcth CARR

v.

John Jrmcr IRONS, Jr.

Dorlr CARR, al Exccutrlr, cto.

Y.

John Jamcr IRONS, Jr.

I D|v.695, I Dlv. 695-A.

Supreme Court of dabama.

]Iareh 2, 1072.

Action for damages for injuries sus-

tained when pedestrian was struck by auto-

mobile being operated by defendant. The

Circuit Court, Mobile County, Robert E.

Hodnette, Jr., J., entered judgment for de-

fendant, and appeal was taken. The Su'

preme Court, Harwood, J., held that deni-

al of motion for mistrial on ground of ju-

ror misconduct was within trial court's dis-

cretion, where remark of juror in beauty

parlor, before case had concluded, per-

tained to nothing more than juror's obser'

vation of plaintiff's conduct during trial,

and where there was no indication that ju-

ror was biased, corrupt, or that her alleged

misconduct was influential in the verdict

rendered.

Af firmed.

!. Nogllgonco @l l7

Plea of contributory negtigence is suf'

ficient if it shows a duty to defendant tfl'
posed by law upon a plaintiff to exercisc

reasonable care, breach of that duty, ano

that such breach of duty owed by plaintiff
to defendant was the proximate contribut'
ing cause of plaintiff's injury.

2. Automoblle! @160(l)

Driver of an automobile, and a Pedc*

trian on a public highway or street, eacll

owe to the other the duty to exercise suco

reasonable care as the attendant circultl'

stances may require.

!I Automobllcr @217(l)

Plaintiff pedestrian owed to d
driver, as a matter of law, a dut
reasonable care in crossing publi

4. Automobllrl €=239(2)

Demurrers by plaintiff pedestr
was struck by defendant's automob
pedestrian was crossing the street
fendant's pleas of contributory ne
were properly overruled. Circuit a

rior Court Rules, rule 37.

5. Now Trlal @44(t), So

Trlal @304

To require a new triat, or a
in relation to alleged misconduct r

conduct of juror should be such as
cate bias or corruption in perforn
his duty, or circumstances should
that his misconduct influenced the
rendered.

8. Trlat @=304

Denial of motion for misl
ground of juror misconduct was
trial court's discretion, where rer
juror in beauty parlor, before c
concluded, pertained to nothing mt
juror's observation of plaintiff's
during trial, and where there was
cation that juror was biased, cor
that her alleged misconduct was in
tn the verdict rendered.

In ge, McM,r"";; Mobile,
pellants.

, Hand, Arendall, Bedsole, Gre
Johnston, and Jerry A. McDowell,
lor appellee.

HARWoOD, 
Justice.

,*llizabeth Carr was str:uck by an
otle driven by John James Irons, Jrnterscction Jf d"rr.n and lItreets in the City of Mobile.

259 so.2d-_t6