L. H. ANTHONY, Appellant,
PHOENIX UNION HIGH SCHOOL DISTRICT, MARICOPA COUNTY, STATE OF ARIZONA, a Municipal Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge.
Mr. J. J. Cox, Mr. A. Y. Moore and Mr. B. L. Hibbert, for Appellant.
Mr. Richard F. Harless, County Attorney, and Mr. Charles B. McAlister, Deputy County Attorney, for Appellee.
[55 Ariz. 266] ROSS, C.J.
On May 8, 1934, the Phoenix Union High School District entered into a written contract with L. H. Anthony, a duly licensed school teacher, employing him as one of its teachers for the ensuing year, beginning September 1, 1934, and agreeing to pay him therefor $1,sp880 in monthly installments. One of the conditions of the contract was that the district might dismiss him for unfitness or incompetency, in which event the salary would cease.
Before the school year commenced, on, to wit, July 16, 1934, the Board of Education of said school district notified Anthony by registered mail to appear before it at 11 A.M., July 21, 1934, and show cause why his contract should not be canceled "for unfitness as provided in said contract." Anthony, although he knew of such [55 Ariz. 267] meeting and telephoned or caused the partner of his attorney to telephone to the board to have the hearing postponed to a future date, made no appearance at such hearing. The board held a formal meeting at the time and place designated, took evidence on the charge of Anthony's unfitness, and adopted a resolution canceling his contract.
Thereafter, on October 3, 1934, Anthony brought this action for the stipulated salary claiming that the school district had breached its contract and damaged him in that sum. The school district answered (1) that its board had held a formal hearing on the charge of unfitness of plaintiff and canceled his contract, and (2) that before plaintiff had a right to maintain the action he must have appealed from the decision of the board to the county superintendent of schools.
The case was tried with a jury and resulted in favor of the defendant. The plaintiff has appealed and insists that he was not given a fair trial. However, before we take up errors in the trial, it is necessary to determine whether plaintiff was entitled to a trial in the courts on the question of his fitness before he had exhausted the remedy by appeal to the superintendent, or at all. Section 1042, Revised Code of 1928, reads:
"Dismissed teacher may appeal. In case of the dismissal of any teacher before the expiration of any contract entered into between such teacher and the board of trustees, for alleged unfitness or incompetence,
appeal may be had to the county superintendent." Although we have held that a teacher with a written contract to teach in the schools of Arizona must be given an opportunity to be heard before his contract is canceled for unfitness or incompetency (Public School District No. 11 v.. Holson, 31 Ariz. 291, 252 [55 Ariz. 268] Pac. 509, 511), this is the first case where it has been urged that the teacher who claims that his dismissal was unjustified must appeal his case to the superintendent before he may resort to the courts for redress. Whether the remedy by appeal to the superintendent is an adequate or any remedy is the question. The omission to state the effect, if any, of the superintendent's decision on the rights of the parties and what they should or could do subsequent thereto suggests the uselessness of the appeal. If the superintendent disapprove the decision of the board, he is not given the power to order the teacher reinstated. If he approve the board's decision, such approval is not made final or conclusive on anyone. Whatever the superintendent's decision may be, it is not binding upon the teacher or the school district. After his decision the parties are left in exactly the same position as before.
The law will not require a party to do a useless thing before he may invoke the assistance of the courts in the vindication of his rights. If an appeal to the superintendent is to accomplish anything, the law should be amended to state the effect of such officer's decision upon the rights of the ...