affect the validity of a contract based on such certificate. It seems that any citizen of the district may secure an injunction restraining one having no certificate from teaching in the schools, and restraining the officers from paying such teacher for services rendered. In some cases it has been held that where the employment of an unqualified teacher is a necessity, the school district is authorized to employ one who has not the proper certificate if the school board are satisfied that the teacher is otherwise qualified, and to pay such teacher out of moneys belonging to the district.*

74. Time of Possession of Certificate.-The authorities are not agreed on the question as to the time at which a teacher must have a certificate in order to be qualified to teach. It has been held in some cases that a teacher, in order to make a valid contract, must have a certificate to teach at the time he enters into the contract of employment, and that a contract by a teacher without the requisite certificate may not be ratified by the subsequent issuance of the certificate. Other cases hold that a contract with a person who has no certificate is not void ab initio, for it is conceivable that the certificate may be granted before the actual teaching begins, and if so granted, the entire transaction is valid.8 This conflict is caused to some extent by the fact that the wording of the statutes varies, some providing that no teacher without a certificate shall be employed, others that no one without a certificate shall teach.10 In some cases it has been held that the fact that a teacher has no certificate is conclusive, but in others it is held that a teacher's claim will not be defeated because he has no certificate if he is entitled to one, and his failure to secure it is no fault of his.11 Along the same line it is held that where a teacher has admittedly complied with all the requirements for the issuance of a certificate, but there is a delay due to no fault of his, he is entitled to a certificate as of the date when it should have been issued, and a certificate subsequently issued will relate back to that date. 12

2. Note: 42 L.R.A. (N.S.) 413. 3. Note: 42 L.R.A. (N.S.) 414. 4. Notes: 42 L.R.A. (N.S.) 414; Ann. Cas. 1913C 373.

5. Goose River Bank V. Willow Lake School Tp., 1 N. D. 26, 44 N. W. 1002, 26 A. S. R. 605.

Note: 42 L.R.A. (N.S.) 415.

6. Hosmer v. Ransom County Sheldon School Dist. No. 2, 4 N. D. 197, 59 N. W. 1035, 50 A. S. R. 639, 25 L.R.A. 383.

Note: 42 L.R.A. (N.S.) 415.

7. Schafer v. Johns, 23 N. D. 593, 137 N. W. 481, 42 L.R.A. (N.S.) 411 and note.

8. Schafer v. Johns, 23 N. D. 593, 137 N. W. 481, 42 L.R.A. (N.S.) 411. Note: Ann. Cas. 1913C 373.

9. Goose River Bank V. Willow Lake School Tp., 1 N. D. 26, 44 N. W. 1002, 26 A. S. R. 605; Hosmer v. Ransom County Sheldon School Dist. No. 2, 4 N. D. 197, 59 N. W. 1035, 50 A. S. R. 639, 25 L.R.A. 383; Schafer v. Johns, 23 N. D. 593, 137 N. W. 481, 42 L.R.A.(N.S.) 411.

10. Schafer v. Johns, 23 N. D. 593, 137 N. W. 481, 42 L.R.A. (N.S.) 411 Note: Ann. Cas. 1913C 373. 11. Note: 42 L.R.A. (N.S.) 415. 12. Bradfield v. Avery, 16 Idaho

75. Dismissal. The right to hire teachers and other school officials presupposes the right to dismiss them, and both of these powers are generally in the local school boards. 18 The right of dismissal thus given to a board is absolute, and cannot be bargained away or limited. by contract. Every contract made with a teacher includes by implication the statutory provisions for dismissal,14 and in the absence of statutory provisions includes the implied power of the board to dismiss for adequate cause. 15 But conversely the terms of the statute favorable to the teacher are likewise written into the contract, and a school board will not be permitted to circumvent a statute providing for dismissal for cause only, by including in the contract the power to dismiss arbitrarily without cause.16 Where a teacher has been properly dismissed, the dismissal constitutes a good defense in an action by the teacher against the district for subsequent compensation.1 17 Failure to renew a teacher's contract does not constitute dismissal of the teacher,18 and so does not come within the purview of a statute prescribing the cause and manner for dismissal.19 Proceedings for the dismissal of a teacher are frequently regulated by statute, and consequently depend on the wording of the particular statute in force.20 In such statutes the grounds of dismissal are generally stated in the broadest terms, but it is held that the board is limited to the grounds specified. Some statutes give absolute power of dismissal to the board, without mention of cause or procedure, so that the power is discretionary and not reviewable by the courts. The procedure as to complaint, notice, and hearing provided by statute for the dismissal of a school teacher must be followed to make a dismissal valid. Where the statute merely states in general

769, 102 Pac. 687, 23 L.R.A.(N.S.) 97 Cal. 606, 32 Pac. 643, 20 L.R.A. 1228. 197.

13. Marion v. Board of Education, 97 Cal. 606, 32 Pac. 643, 20 L.R.A. 197; Freeman v. Bourne, 170 Mass. 289, 49 N. E. 435, 39 L.R.A. 510.

14. Gillan v. Board of Regents, 88 Wis. 7, 58 N. W. 1042, 24 L.R.A. 336.

15. Freeman v. Bourne, 170 Mass. 289, 49 N. E. 435, 39 L.R.A. 510.

16. Thompson v. Gibbs, 97 Tenn. 489, 37 S. W. 277, 34 L.R.A. 548.

17. Bourbon County School Dist. No. 23 v. McCoy, 30 Kan. 268, 1 Pac. 97, 46 Am. Rep. 92.

18. Marion v. Board of Education, 97 Cal. 606, 32 Pac. 643, 20 L.R.A. 197; People v. Chicago, 278 Ill. 318, 116 N. E. 158, L.R.A.1917E 1069 and note.

20. Bourbon County School Dist. No. 23 v. McCoy, 30 Kan. 268, 1 Pac. 97, 46 Am. Rep. 92; Richards v. District School Board, 78 Ore. 621, 153 Pac. 482, Ann. Cas. 1917D 266, L.R.A. 1916C 789; Thompson v. Gibbs, 97 Tenn. 489, 37 S. W. 277, 34 L.R.A. 548; State v. Board of Education, 19 Wash. 8, 52 Pac. 317, 67 A. S. R. 706, 40 L.R.A. 317; Gillan v. Board of Regents, 88 Wis. 7, 58 N. W. 1042, 24 L.R.A. 336.

1. Thompson v. Gibbs, 97 Tenn. 489, 37 S. W. 277, 34 L.R.A. 548.

2. Gillan v. Board of Regents, 88 Wis. 7, 58 N. W. 1042, 24 L.R.A. 336.

3. Richards V. District School Board, 78 Ore. 621, 153 Pac. 482, 19. Marion v. Board of Education, Ann. Cas. 1917D 266, L.R.A.1916C

terms the causes for which and the officials by whom a teacher may be dismissed, these officials do not form a court with the necessity of formal procedure, but may adopt their own procedure. But where the board is constituted a court to try charges against a teacher or other school officer, the law presupposes a fair trial, and a director who has openly and avowedly prejudged the case should not sit at such trial, and will be restrained by a court from so doing. A rule of a school board providing for the dismissal of a female teacher in case of marriage has been held capricious and unreasonable, and therefore invalid, where the statute provides for dismissal for cause only.

76. Remedy for Wrongful Dismissal.-Mandamus cannot be maintained to compel reinstatement of a school teacher, who has been removed by the school officers, and whose relation to the school authorities rests wholly in contract. Nor in such case can equity be invoked to enjoin the school officials from discharging a teacher, whether the bill is brought by the teacher herself, or by a taxpayer. The reason in both cases is that the remedy at law is adequate.9

77. Right to Pay When School Closed.-If a school board makes a contract with a teacher for a fixed time, it must pay him for that time even though there is no teaching for him to do.10 And this is true even though the contract provides that the teacher shall be paid only for time actually occupied in school, for the evident intent of the parties was merely to stop payment during vacations or absences.11 Where a contract is to do acts which can be performed, nothing but the act of God or of a public enemy or the interdiction of the law as a direct and sole cause of the failure will excuse the performance. 12 But of course a school district may save itself from liability in such

789; State v. Board of Education, 19 Wash. 8, 52 Pac. 317, 67 A. S. R. 706, 40 L.R.A. 317.

4. Bourbon County School Dist. No. 23 v. McCoy, 30 Kan. 268, 1 Pac. 97, 46 Am. Rep. 92.

5. State v. Board of Education, 19 Wash. 8, 52 Pac. 317, 67 A. S. R. 706, 40 L.R.A. 317.

N. M. 183, 135 Pac. 96, 49 L.R.A. (N.S.) 62 and note; Greer v. Austin, 40 Okla. 113, 136 Pac. 590, 51 L.R.A. (N.S.) 336 and note.

10. Smith v. School Dist. No. 64, 89 Kan. 225, 131 Pac. 557, Ann. Cas. 1914D 139 and note; Noble v. Williams, 150 Ky. 439, 150 S. W. 507, 42 L.R.A. (N.S.) 1177; Dewey v. 6. Richards V. District School Alpena School Dist., 43 Mich. 480, Board, 78 Ore. 621, 153 Pac. 482, 5 N. W. 646, 38 Am. Rep. 206 and Ann. Cas. 1917D 266, L.R.A.1916C note; McKay v. Barnett, 21 Utah 789 and note. 239, 60 Pac. 1100, 50 L.R.A. 371 and

Notes: L.R.A.1916C 796;

Cas. 1917D 271.

Ann. note.

11. McKay v. Barnett, 21 Utah 7. See MANDAMUS, vol. 18, pp. 239, 60 Pac. 1100, 50 L.R.A. 371 and 246-247.

8. Greer v. Austin, 40 Okla. 113, 136 Pac. 590, 51 L.R.A. (N.S.) 336.

9. State v. Board of Education, 18

note.

12. See CONTRACTS, vol. 6, p. 997 et seq.

a case by a proper provision in the contract of employment.18 The fact that the school is closed because of an epidemic will not save the school district from liability.14 The general rule holds good even though the school is closed by order of a higher authority, such as a board of health.15 Similarly as a general rule, no deduction can be made where the school is closed on account of the destruction of the building, though it has been held otherwise when the contract is made with reference to the particular building which is destroyed.16 A teacher is entitled to be paid when he is prevented from performing his part of the contract by the school authorities themselves," as for instance if they fail to furnish him with a school in which to teach 18 or shortening of the school term.19 Where the school term is shortened because all funds which the district is authorized to expend have been exhausted, it may be that a teacher cannot collect pay for the balance of his contract period, for the employment of a teacher for such time would be ultra vires; but the mere failure to collect the funds will not. justify the closing of the school, or avoid the teacher's contract.20 In the absence of special clauses in the contract no deduction can be made from the time for which a school teacher contracts to teach, on account of the closing of the school on recognized holidays.' school board with general powers may allow full pay to a school teacher absent for a reasonable time because of sickness, provided the teacher furnishes a substitute. On the other hand, in the absence of contractual complications, a school board has the power to reduce the salary of a teacher by providing that he is to receive no compensation for the days on which he is absent without leave.

78. Reimbursement for Money Spent.-Where a school board fails to furnish a school building or necessary service or supplies, and a teacher secures them at his own expense, he cannot recover from the

13. Notes: 50 L.R.A. 373 et seq.; Ann. Cas. 1914D 143.

14. Smith v. School Dist. No. 64, 89 Kan. 225, 131 Pac. 557, Ann. Cas. 1914D 139; Dewey v. Alpena School Dist., 43 Mich. 480, 5 N. W. 646, 38 Am. Rep. 206; McKay v. Barnett, 21 Utah 239, 60 Pac. 1100, 50 L.R.A. 371 and note.

Note: Ann. Cas. 1914D 142.

15. Notes: 50 L.R.A. 372; Ann. Cas. 1914D 142.

16. Notes: 50 L.R.A. 373; Ann. Cas. 1914D 142.

20. Note: 50 L.R.A. 374 et seq. 1. School Dist. No. 4 v. Gage, 39 Mich. 484, 33 Am. Rep. 421.

Notes: 50 L.R.A. 374; 38 L.R.A. (N.S.) 514; Ann. Cas. 1914D 141.

2. District of Columbia v. Dean, 38 App. Cas. (D. C.) 182, 38 L.R.A. (N.S.) 513 and note.

17. Smith v. School Dist. No. 64, 89 Kan. 225, 131 Pac. 557, Ann. Cas. 3. Notes: 38 L.R.A.(N.S.) 513; 1914D 139; Noble v. Williams, 150 Ann. Cas. 1914D 141.

board, for he is a mere volunteer. This is in accordance with the general rule that no one by voluntarily paying the debt of another without his knowledge or consent can become his creditor, and such a payment raises no assumpsit against the person whose debt is paid, and no action at law lies by reason of such payment, unless the debtor either expressly or impliedly requested him to make such payment. or subsequently ratified the act.5

79. Teachers' Retirement Funds.-In some jurisdictions, statutes have been passed creating teachers' retirement funds under which it is optional with the teachers to come under its provisions by having a certain sum deducted from their salary. Under such statutes it is held that the election to participate in the fund raises a contract relation, the terms of which are ascertained by reference to the statute. Accordingly the terms of this contract cannot be altered as to those who have already accepted even by a subsequent statute. In the absence of statutory authority local school boards have no power even by contract to hold back a proportion of a teacher's salary for retirement benefits, and the act of the board in attempting so to do is illegal and void. A statute providing for the pensioning of school teachers out of a fund to be raised by deducting a percentage from the salary of each teacher is unconstitutional and void. Such a taking is either the taking of private property for the public good, in which case it would be unconstitutional as being the taking of the private property of one person for the benefit of another, or it is a tax, in which case it violates the constitutional provision requiring the levy of taxes to be uniform. The acceptance of an appointment as a teacher in the public schools does not estop a teacher from contesting the constitutionality of such a statute.8

X. RIGHTS AND DUTIES OF PARENTS AND PUPILS

80. Compulsory Education.-Statutes making the education of children compulsory have become very general in the United States," and their constitutionality is beyond dispute, for the natural rights of a parent to the custody and control of his infant child are subordinate to the power of the state, and may be restricted and regulated

4. Noble v. Williams, 150 Ky. 439, 150 S. W. 507, 42 L.R.A. (N.S.) 1177. 5. See PAYMENT, vol. 21, p. 32. 6. Note: 50 L.R.A. (N.S.) 1021. 7. State v. Rogers, 87 Minn. 130, 91 N. W. 430, 58 L.R.A. 663.

8. Hibbard v. State, 65 Ohio St. 574, 64 N. E. 109, 58 L.R.A. 654.

9. State v. Bailey, 157 Ind. 324, 61 N. E. 730, 59 L.R.A. 435; Williams v.

Board of Education, 79 Kan. 202, 99 Pac. 216, 22 L.R.A. (N.S.) 584; State v. Jackson, 71 N. H. 552, 53 Atl. 1021, 60 L.R.A. 739; State v. Wolf, 145 N. C. 440, 59 S. E. 40, 13 Ann. Cas. 189; State v. Counort, 69 Wash. 361, 124 Pac. 910, 41 L.R.A. (N.S.) 95; Bevan v. Shears, [1911] 2 K. B. (Eng.) 936, Ann. Cas. 1912A 370 and note.