STATE ex rel. HIRST
BLACK et al., Board of Education, Mount Pleasant Special School Dist.
Mandamus proceeding by The State of Delaware, on the relation of Elizabeth Ann Hirst, against Crayton K. Black, and others, members, Board of Education, Mount Pleasant Special School District, to compel respondent Mount Pleasant Special School District to pay relator's full monthly salary for the month of December, 1948. The Superior Court, Layton, J., held that the employment contract between the parties did not incorporate by reference the rules and regulations promulgated by the state board of education pertaining to the adjustment of salary upon a per diem basis, and relator was entitled to her full monthly salary.
[46 Del. 296] The facts are these. Elizabeth Ann Hirst, whom I shall refer to as Relator, entered into an employment contract with the Board of Education of Mount Pleasant Special School District, hereinafter called Respondent, to teach for the school year 1948-1949. The provisions of the contract, paraphrased for the purpose of brevity, were as follows:
[46 Del. 297] 1. Relator was to work 185 school days between September 1, 1948 and June 30, 1949.
2. Relator was to receive a salary of $3,000 per year.
3. That salary was to be paid monthly-‘ * * * provided all current records are accurately and correctly kept and all required reports are made and approved’ .
4. Relator agreed to observe and enforce the School Laws of the State of Delaware, the Rules and Regulations of the State Board of Education, and the Mount Pleasant Special School District.
5. Either party could terminate the contract by giving thirty days' written notice to the other party. ‘ Failure to comply with this condition shall constitute on the part of the teacher forfeiture of any unpaid balance of salary.’
Relator taught school for the months of September, October and November of 1948, gave the required notice to terminate her contract as of December 31, in accordance with paragraph 5 of the contract, and having taught for the month of December, severed her connection with the School. She was paid $300 monthly for September, October and November, but only 250.91 for December. The object of this litigation is to compel the payment to Relator of $49.09, being the balance due her on her salary for December.
Respondent takes the position that, upon the giving of notice to terminate, Relator's contract was converted from an agreement to pay compensation on a monthly to a per diem basis.It advances two reasons for this result. First, it argues that such a construction is apparent from the contract itself but, in any event, is compelled by the fact that the Rules and Regulations of the State Board of Education are to be taken as having been incorporated by reference into the agreement.
Stewart Lynch, Florence E. Freeman, both of Wilmington, for relator.
Louis J. Finger, Deputy Atty. Gen., for respondents.
LAYTON, J., sitting.
[46 Del. 298] LAYTON, Judge.
The first question calls for a determination as to whether, from the language of the agreement itself, compensation was intended to be on a monthly or a per diem basis. Even a casual reading of the contract indicates clearly that a monthly basis of payment was contemplated. The word ‘ salary’ occurs throughout the agreement. In State ex rel. Murray v. Riley, 70 A.2d 712, 713, 14 A.L.R.2d 630, the Supreme Court of Delaware defined ‘ salary’, as: ‘ * * * regular compensation at fixed periods without regard to the number of days actually worked so long as the employee is in good standing with his employer. Thus, providing there be no agreement to the contrary, an employee on salary might reasonably expect to receive his regular salary even though he missed an occasional day's work due to illness or otherwise; and compensation paid during vacations incident to the position is ordinarily based upon the salary regularly paid’ .
If this were not enough, the contract provides that Relator was to receive a ‘ salary’ of ‘ $3000 per year’ ‘ payable monthly’ . Respondent points to the paragraph requiring Relator to work 185 days between September 1, 1948 and June 30, 1949 as indicative of an intent to make compensation on a daily basis, but I am not impressed with this thought. And the further argument that, since the contract calls for monthly payments of salary over the period of a calendar year, Relator could be entitled to no more than $250 per month, in any event, has little significance in view of the fact that the pattern of payments had already ...