Opinion
No. 35041.
1946-06-8
WILLIS v. SEELEY et al.
John Alden Staker, of Portsmouth, for plaintiff. Marvin A. Kelly, of Portsmouth, for defendant.
Action by Robert E. Willis against Lowell Seeley and others, as members of the Board of Education of Haverhill School District, for payment due plaintiff for days lost from his teaching position due to illness.
Judgment for plaintiff.John Alden Staker, of Portsmouth, for plaintiff. Marvin A. Kelly, of Portsmouth, for defendant.
YOUNG, Judge.
A jury having been waived this matter came on for hearing before the Court without the intervention of a jury. The plaintiff, Robert E. Willis, alleges that the defendants, Lowell Seeley, Frank Boynton, Harry Graff, John Carr, and C. W. Pugh are the duly, qualified and acting members of the Board of Education of Haverhill Special School District, Scioto County, Ohio, and that on or about the 28th day of August 1944, the defendants entered into a contract with the plaintiff employing him to teach in the Haverhill School for the year 1945 at a daily salary of $7.55; that the defendants properly appropriated funds for the payment of the salary of the plaintiff for said school year and that pursuant to said contract he performed his part of the same and was paid all sums due him under said contract save and except the sum of one hundred thirty-five dollars and ninety cents ($135.90) for which amount he asks judgment.
The defendants by way of answer to plaintiff's petition admit that they were the duly, qualified and acting members of said Board of Education of said School District and that on or about the 28th day of August 1944 they entered into a contract employing the plaintiff to teach in the said Haverhill School which was under the control and supervision of the defendants for the school year of 1944-45 at a salary of $150 per month and that an annual appropriation was made by the defendants providing for the salary of plaintiff for said school year and denies each and every other allegation in plaintiff's petition contained.
The matter came on for hearing on the evidence which shows the undisputed facts to be that the plaintiff was hired by the defendants as teacher in the Haverhill School which was under the supervision of the defendants for the school year 1944-45 as alleged in the petition and admitted by the answer at a daily salary of $7.55; that during the course of said school year plaintiff lost 18 days time due to illness for which period of time the defendants have refused to pay him.
While the defendant has filed a general denial in this case its disposition turns, we think, on the statute in effect at the time, to-wit: Section 4842-7 of the General Code of Ohio, 120 Ohio Laws, p. 540, which reads as follows:
‘Each board of education shall enter into contracts for the employment of all teachers and shall fix their salaries which may be increased but not diminished during the term for which the contract is made except as provided in section 4842-9 of the General Code. Teachers must be paid for all time lost when the schools in which they are employed are closed owing to an epidemic or other public calamity, and for time lost due to illness or otherwise to the extent authorized by regulations which each board of education shall adopt.’
It is noted that according to Section 4842-7
‘Teachers must be paid for all time lost when the schools in which they are employed are closed owing to an epidemic or other public calamity, and for time lost due to illness or otherwise to the extent authorized by regulations which each board of education shall adopt.’
It is to be noted that the defendants admit that they nor their predecessors had adopted regulations as provided for in Section 4842-7, G.C. The Statute states that teachers must be paid for time lost due to illness to the extent authorized by regulations which each board of education shall adopt.
The questions naturally arise as to whether it was mandatory that the defendants pay plaintiff during the period of his sickness or whether they were within their rights in refusing to pay in view of the fact that they had not adopted a regulation as provided in Section 4842-7.
This statute in the first place states that the defendants must pay and it likewise provides that the defendants shall adopt regulations. Was it mandatory upon the Board of Education that they pay and was it likewise mandatory that they adopt the regulations or was it merely directory?
Volume 37 O. J. at page 324, Paragraph 28. ‘The line of demarcation between statutory provisions which are mandatory anothose which are directory is not a clear one, and it is therefore difficult to lay down any general rule as to when the provisions of a statute are merely directory, and when mandatory or imperative. In other words, no precise or universal rule can be given. Whether a statute is mandatory or directory does not depend upon its form, but upon the intention of the legislature, to be ascertained from a consideration of the entire act its nature, its character, its reason, its object, and its subject-matter, as well as the language used.’
37 O. J. page 326, Paragraph 29. ‘Must is a stronger word to indicate an intention that the provision is mandatory than the word ‘Shall’, and it is accordingly so interpreted, except where the intention of the legislature, as gathered from the entire act, appears to be otherwise. The use of the word shall is usually interpreted to make the provision in which it is contained mandatory.'
The word ‘must’ is mandatory. It creates an obligation. It means obliged, required, and imposes a physical or moral necessity. The word ‘Shall’ is usually held to be likewise mandatory depending upon a fair construction of the statute. The words ‘must’ and ‘shall’ where it appears from the whole section or act that such was the legislature's intention it would be considered as mandatory.
In deciding the case of State ex rel. v. Farrar, 146 Ohio St. 467, 66 N.E.2d 531, in which Judge Hart wrote the opinion, we have the following:
‘Whether a statute is mandatory or directory is to be ascertained from a consideration of the entire act, its nature, its effect and the consequences which would result from construing it one way or another. In each instance, it is necessary to look to the subject matter of the statute and consider the importance of the provision which has been disregarded and the relation of that provision to the general object intended to be secured by the act.’
Considering all of the circumstances in this case and giving the statute such construction as we think is proper, it is our opinion that it was a mandatory duty of the Board of Education to adopt such regulations as they deem proper limiting the days for which a teacher could be paid in case of sickness and their failure to adopt such regulations would place them in such a position that they could not legally refuse to pay the plaintiff for the time out due to sickness; and that it is therefore their mandatory duty to pay the plaintiff for the time lost.
It is therefore the opinion of the Court that the defendants pay to the plaintiff said sum of $135.90. Exceptions noted.