Opinion
No. 23890
Decided March 29, 1933.
Prohibition — Writ not available where another remedy adequate — Board of education not prohibited from trying charges preferred against teacher — Sections 7701 and 7708, General Code.
Where a board of education has preferred charges against a teacher, pursuant to Section 7701, General Code, a writ of prohibition, to restrain the board from proceeding with the trial of such charges, will not lie, for the reason that the teacher, in the event of his dismissal, has an adequate remedy under Section 7708, General Code.
ERROR to the Court of Appeals of Logan county.
This is an action seeking to reverse the Court of Appeals of Logan county.
The facts incident to the controversy are that in 1931 Jay W. Insley was employed by the board of education of Stokes Township Rural School District of Logan county, Ohio, for a period of three years, at a salary of $3,000 a year, to act as assistant superintendent and teacher of the Stokes Township Centralized School, located in the village of Lakeview, Ohio. In pursuance of this contract, in September, 1931, he entered upon his duties as such assistant superintendent and teacher, and continued as such up until the time of the present controversy.
In October, 1932, charges were filed by the board of education of said Stokes township, accusing the said Jay W. Ensley with improper conduct, and claiming that said Jay W. Ensley failed to carry out the directions and rules of the said board of education, in that, after being notified that he was not to accept pupils who had not reached the age of six years before the 31st day of December, 1932, he continued to permit children under the age limit set forth above to continue in school, in violation of the direct orders and rules of the board of education.
Notice was given the said Jay W. Ensley of the time of hearing of such charges before the board of education, and an opportunity given him to appear for the hearing and defend himself against such charges.
Prior to the date set for the hearing on said charges, the plaintiff in error filed a petition in the Court of Appeals of Logan county, seeking a writ of prohibition directed against the board of education to prevent the hearing of such charges by the board. A temporary writ was issued, staying the proceedings until the court could hear the question raised by the petition.
A motion was filed by the board of education, setting out three propositions: First, that the court was without jurisdiction of the subject-matter of the action; second, that the plaintiff had an adequate remedy at law; and, third, that the defendants were not served in this action and have not entered their appearance.
The Court of Appeals treated the second ground of the motion as a general demurrer and sustained the same, and the relief prayed for by the plaintiff was denied. Error is now prosecuted to this court to reverse such order.
Messrs. Lease Lease and Mr. Roy Warren Roof, for plaintiff in error.
Messrs. Middleton Dickinson and Mr. Howard A. Traul, for defendants in error.
The jurisdiction which the board of education was seeking to exercise is found in Section 7701, General Code, which provides as follows: "Each board may dismiss any appointee or teacher for inefficiency, neglect of duty, immorality, or improper conduct. No teacher shall be dismissed by any board unless the charges are first reduced to writing and an opportunity be given for defense before the board, or a committee thereof, and a majority of the full membership of the board vote upon roll call in favor of such dismissal."
Another section of the General Code, to wit, Section 7708, is involved in this matter. It provides: "If the board of education of any district dismisses a teacher for any frivolous or insufficient reason, the teacher may bring suit against such district. If, on trial of the cause a judgment be obtained against the district, the board thereof shall direct the clerk to issue an order upon the treasurer for the sum so found due to the person entitled thereto * * *."
These sections were construed and upheld in Shuck, Admx., v. Board of Education, 92 Ohio St. 55, 110 N.E. 533.
In the event the board of education should hold adversely to plaintiff in error, he has a remedy for dismissal for frivolous or insufficient reason, by suit, under Section 7708, thus being afforded an adequate remedy at law.
The high prerogative writ of prohibition is exercised within a comparatively limited field, and is to be used with great caution in the furtherance of justice, and only where there is no other regular, ordinary, and adequate remedy. State, ex rel. Nolan, v. Clen-Dening, 93 Ohio St. 264, 112 N.E. 1029; State, ex rel. Firestone Tire Rubber Co., v. Duffy et al., Indus. Comm., 114 Ohio St. 702, 152 N.E. 656.
Entertaining the view that prohibition does not lie in this case for the reason that the relator has an adequate remedy at law and no constitutional right of plaintiff in error has been invaded by the statutory procedure involved, the writ was properly denied by the Court of Appeals, and its order in the premises is therefore affirmed.
Judgment affirmed.
WEYGANDT, C.J., ALLEN, STEPHENSON, JONES and MATTHIAS, JJ., concur.
KINKADE, J., not participating.