.State Ex Rel. Bd. Of Educ. v. Martin, (No. 7249)

• Citation: 112 W.Va. 174
• Decision Date: 19 April 1932
• Docket Number: (No. 7249)
• Court: Supreme Court of West Virginia
• Parties: .State ex rel. Board of Education v. j. W. Martin, Judge

112 W.Va. 174

.State ex rel. Board of Education

v.j. W. Martin, Judge

(No. 7249)

Supreme Court of Appeals of West Virginia.

Submitted March 29, 1932.

Decided April 19, 1932.

1. Schools and School Districts

The action of a board of education of an independent school district removing a supervisor for lack of efficiency is reviewable by the circuit court on certiorari.

2. Certiorari

The provision of Code 1931, 18-7-6, which allows appeal by a dismissed teacher (including supervisor) to the State Superintendent of Free Schools from an order of dismissal entered by the local board, where the board is not unanimous in its action against him, is not exclusive of the circuit court's right to review the dismissal on certiorari.

Original petition by the State, on the relation of the Board of Education of Williams District, in Wood County, and its members, for a writ of prohibition prayed to be directed to

the Hon. John W. Martin, a Judge of the Circuit Court of

Wood County, and others.

Writ denied.

F. P. Moats, for petitioners.

J. W. Vandervort, Ambler, McCluer & Ambler, Melville Stewart, and A. A. Schramb, for respondents.

Maxwell, Judge:

On the 31st of October, 1931, the board of education of Williams District, Wood County, entered an order removing the supervisor of schools of said district, J. Selden Spencer, one of the respondents hereto, on the ground of lack of efficiency. On the 16th of November, on certiorari prosecuted by the said Spencer against the said board of education and its individual members, the circuit court of Wood County, the Honorable John W. Martin, one of the respondents hereto, being the judge thereof, entered a preliminary order suspending the said order of removal entered by the board of education, pending final determination in said court.

The matter comes now to this Court on petition of the said board and its members for a writ of prohibition to prevent the circuit court from acting in the certiorari matter, on the ground that it is without jurisdiction thereof.

The petitioners take the position that in the certiorari proceeding the circuit court has no jurisdiction because, they ■say, the board of education in removing Spencer acted under Code 1931, 6-6-8, which reads as follows: "The court, board, body or officer authorized by law to appoint any person to any county, magisterial district, independent school district, or municipal office, the term or tenure of which is not fixed by law, may remove any person appointed to any office by such court, board, body or officer, with or without cause, whenever such removal shall be. deemed by it, them or him for the good of the public service, and the removal of any such person from office shall be final." They say that under that section, the board of education had full discretion in the matter of removal of its supervisor of schools. The said section is found in the chapter of the Code headed "General Provisions Respecting Officers." Respondent Spencer contends that said quoted section has no application in the premises, and that the board did not and could not act thereunder.

The Williams Independent School District was created by chapter 78 of the acts of the legislature of 1917. Section 24 thereof empowers the board to appoint a district supervisor of schools and fix his salary, and provides that "he may be removed at any time for immorality, misconduct, or lack of efficiency * * *." Section 30 of said act reads: "All provisions of. the general school law of this State which are inconsistent or in conflict with any of the provisions of this act shall be void within said district of Williams; otherwise to have full force and effect."

In chapter 18 of the Code, being the chapter dealing specially with educational matters, section 6 of article 7 is as follows: '' The board of education of any district or independent district may suspend or dismiss any principal or teacher so appointed for immorality, incompetency, cruelty, insubordination, intemperance or wilful neglect of duty, but the charges shall be stated in writing and the teacher shall be given an opportunity to be heard by the board upon not less than ten days' notice, and in all cases when the board is not unanimous in its decisions to suspend or dismiss, the principal or teacher so suspended or dismissed shall have the right of appeal to the state superintendent of schools."

In definition of terms we find in Code, 18-1-1, the following:" 'Teacher' shall mean, supervisor, principal, superintendent, public school librarian, or any other person regularly employed for instructional purposes in a public school of this State." We must therefore consider a district supervisor as a teacher. Teachers are not public officers. Heath v. Johnson, 36 W. Va. 782, 15 S. E. 980; Hartigan v. Board of Regents, 49 W. Va. 14, 38 S. E. 698. A supervisor, or teacher, not being an officer, it follows that the above quoted section (Code, 6-6-8), relied on by petitioners, is not applicable.

Inasmuch as special acts were not repealed by the new code (Code, 63-1-3), and inasmuch as general provisions of April 1932] Board of Education v..Martin the school law are operative in said "Williams Independent School District except in so far as they are inconsistent with the provisions of the act creating the independent district, wre are of opinion that the said section of the general school law (Code, 18-7-6) and the above quoted portion of section 24 of the special legislative act creating the said independent district must be read together. This result follows because there are no inconsistencies between the two sections. They blend. Wherefore, the procedure prescribed by the general act (Code, 18-7-6) must be deemed to be proper procedure in the matter of the removal of a district supervisor for any of the causes enumerated in the said special act. The manner of review therein provided for is this: "* * * and in all cases when the board is not unanimous in its decisions to suspended or dismiss, the principal or teacher so suspended or dismissed shall have the right of appeal to the state, superintendent of schools." In this case, the dismissal of Spencer was not by unanimous action of the members of the school board. Therefore, appeal to the state superintendent of free schools was available.

But was this right of the supervisor to appeal to the state superintendent of free schools exclusive of all other modes of review? Has the circuit court of Wood County jurisdiction in certiorari? Under Code 1931, 53-3-2, certiorari is a proper procedure to test the judgment of inferior tribunals "except in cases wdiere authority is or may be given by law to the circuit court, or the judge thereof in vacation, to review such judgment or order or motion, or on appeal, writ of error or supersedeas, or in some manner other than upon certiorari." It is thus to be noted that the only limitation on the broad scope of certiorari is that there shall be some other mode of review by the circuit court. A method of review by some other governmental agency therefore does not exclude the certiorari jurisdiction of the circuit court. It is a constitutional jurisdiction. "The circuit court shall have the supervision and control of all proceedings before justices and other inferior tribunals, by mandamus, prohibition and certiorari." W. Va. Cons., Art. VIII, sec. 12.

It is to be noted that the appeal to the state superintendent does not purport to be exclusive. It merely provides an optional or alternative method to be employed at the election of the aggrieved party.

In the case of Quesenberry v. State Road Commission, 103 W. Va. 714, 138 S. E. 362, Judge Lively speaking for the court emphasizes the fact that under our statute...