Bd. Of Educ. Of Black Fork Dist v. Holt

Decision Date05 April 1902
Citation41 S.E. 337,51 W.Va. 435
PartiesBOARD OF EDUCATION OF BLACK FORK DIST., TUCKER COUNTY, v. HOLT, Judge.
CourtWest Virginia Supreme Court

PROHIBITION—INJUNCTION—BOARD OF EDUCATION.

1. As an ordinary rule of practice, subject to all just exception, this court will not award a writ of prohibition to a preliminary rule or injunction issued by the circuit court, or judge thereof, until an application has first been made to such judge or court to discharge or to dissolve the same, and such judge or court overrules or refuses to entertain such application. Such application may be made and acted on during the pendency of a rule in prohibition in this court, without being in violation thereof.

2. An injunction does not lie to control the action of a board of education as to matters within its jurisdiction.

3. A prohibition does not lie to control the action of a board of education unless it is usurping judicial powers not conferred upon it by law, or exercising such powers in a manner contrary to law.

(Syllabus by the Court.)

Petition of the board of education of Black Fork district, Tucker county, for writ of prohibition to John Homer Holt, judge. Writ awarded.

S. L. Flournoy, for petitioner.

Cunningham & Stallings, for respondent.

DENT, P. The board of education of Black Fork district, Tucker county, petition for a writ of prohibition against John Homer Holt, judge of the circuit court, to prevent further proceedings in a rule in prohibition and temporary injunction issued by him at the instance of Straudie Austin, a teacher of said district, against such board of education. This is the third application for this writ. This teacher was tried on a charge of incompetency and neglect of duty by the trustees of her school, and the charges were dismissed. A number of the patrons (less than a majority) appealed to the board of education, and she obtained a prohibition for the reason that a majority of the patrons had not asked for such appeal. Thereupon the board proceeded to remove the trustees and appoint others, for the express purpose of removing her, as she alleges, as a teacher, and closing her school. The new trustees ordered the school closed for the reason that the required average attendance had not been made. The teacher then obtained from the judge a pre-

liminary injunction restraining the hoard from interfering with her in the fulfillment of her contract as such teacher. The board, on a rule issued, now moves this court to prohibit the circuit court from thus interfering with them in the legal discharge of their duties. The writ was refused twice because no application had been made to the circuit court or judge to dismiss the proceedings for prohibition and the injunction for want of jurisdiction. This was done by this court as a matter of practice, out of respect for the judge of the inferior tribunal, and on the theory that when the matter was called to his attention he would promptly dispose of the same in accordance with the law defining his legal powers. High, Extr. Rem. § 773; 16 Enc. Pl. & Prac. 1128; Havemeyer v. Superior Ct, 84 Cal. 327, 24 Pac. 121, 10 L. R. A. 627, 18 Am. St. Rep. 192. The plaintiffs in their amended petition allege that they brought the matter to the attention of the judge by moving him to dismiss the proceedings for want of jurisdiction, but he refused to entertain the motion, and postponed the hearing of the matter until some future time. Such action on his part must be deemed equivalent to a determination in favor of jurisdiction, and, if he is exceeding the same, there is no good reason why the writ should not at once issue. In Virginia no such preliminary motion is regarded as necessary. Com. v. Latham, 85 Va. 632, 8 S. E. 488. This court, however, deems it proper and right that the circuit court or judge have the opportunity of quashing his own illegally issued papers; believing that in all such cases the inclination of the judge will be to follow the law, and that he will not try to entertain a matter over which he has no jurisdiction. On this question he had a right to act at any time without being in violation of the rule in prohibition from this court; for...

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