State ex rel. Bohanon v. Wanamaker
| Decision Date | 10 November 1955 |
| Docket Number | No. 33365,33365 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, on the relation of Lawrence H. BOHANON, Respondent, v. Pearl A. WANAMAKER, State Superintendent of Public Instruction, Appellant. |
Don Eastvold,
Michael R. Alfieri, Olympia, for appellant.
Allen, DeGarmo & Leedy, Seattle, for respondent.
The decision of a school board not to renew the employment of a school principal gave rise to this certiorari proceeding.
Lawrence H. Bohanon, for many years principal of Roosevelt school, in Everett, was not tendered a contract renewing his employment for the school year 1954-1955. Through his attorneys, he therefore wrote to the school board, under date of August 6, 1954, demanding that such a contract be issued. The position taken in this letter was that Bohanon was entitled to the contract because he had not, on or before April 15, 1954, received notice of the decision not to renew his employment, and the reasons therefor, as specified in RCW 28.67.070 [cf. Rem.Supp.1943, § 4776, part].
On August 17, 1954, the school board replied, to the effect that its letters of March 26, 1953, and March 31, 1954, addressed to Bohanon, provided the notice required by the statute. The letter of August 17 indicated that the board would 'stand upon the record,' thereby rejecting the demand that the contract be renewed.
On August 30, 1954, Bohanon appealed to the Snohomish county superintendent of schools. The county superintendent dismissed the appeal, on the ground that he did not have jurisdiction. This action was taken on October 8, 1954. The basis of this ruling was that Bohanon had not appealed within thirty days after receiving notice that his contract would not be renewed. See RCW 28.88.010 [cf. Rem.Rev.Stat. § 5064].
On October 14, 1954, Bohanon appealed from the ruling of the county superintendent to the state superintendent of public instruction. The latter declined to entertain the appeal, for the same reason given by the county superintendent.
Bohanon thereupon instituted this certiorari proceeding in the Thurston county superior court. The relief sought was an order requiring the state superintendent to hear and determine his appeal. After hearing, the court entered judgment directing the state superintendent to assume jurisdiction of the matter and to hear and determine the same, with directions which in effect required a decision in favor of Bohanon. The state superintendent has appealed to this court.
In his brief filed in this court on September 8, 1955, respondent moved to dismiss this appeal. He did so on the ground that the forty-three-page volume of records and papers which had been filed in the superior court by the state superintendent in response to the show cause order had not been filed here. It is recited in the findings of fact that such records and papers, which we will call the 'return,' were considered, 'no further evidence having been offered by either party.'
The return should have been included in the transcript which was sent to this court. It was not, however, because appellant failed to refer to it in the praecipe. The return was filed with the clerk of this court on September 28, 1955. This was after the filing of respondent's brief but prior to the oral argument.
Failure to send up the record within the time specified in the rules is a ground for dismissing the appeal, under Rule 51, Rules on Appeal, 34A Wash.2d 55. The granting of the motion on that ground, however, lies within the discretion of this court. We have been referred to no case in which an appeal has been dismissed on this ground, or where this court has declined to consider a transcript which was filed late. We do not belive respondent has been prejudiced by the delay. He was entirely familiar with the return. It was as accessible to him in the office of the clerk of the superior court as it would have been in the office of the clerk of this court.
The motion to dismiss the appeal is therefore denied.
Appellant assigns error upon the refusal of the trial court to grant her motion to quash the application for the alternative writ of certiorari. Appellant argues that the application should have been quashed because the superior court proceeding should have been brought in Snohomish county rather than Thurston county.
The applicable statute is § 3, chapter 102, Laws of 1927 (Rem.Rev.Stat. § 5069). The corresponding section of the Revised Code of Washington [RCW 28.88.040] is disregarded, as it uses language not contained in the statute. The statute in question reads:
'In decisions of appeal by the superintendent of public instruction the decision or order shall be final unless set aside by a court of competent jurisdiction in an action brought therein to review such order or decision.'
The question presented is whether the superior court of the state of Washington for Thurston county is a 'court of competent jurisdiction' to hear and determine this certiorari proceeding.
The words 'court of competent jurisdiction', as used in this statute, mean the court which has power or authority conferred upon it by law to hear and determine the particular proceeding, and whose jurisdiction it was proper to invoke in that instance. See Huberman v. Evans, 46 Neb. 784, 65 N.W. 1045.
In State ex rel. Layton v. Robinson, 2 Wash.2d 614, 99 P.2d 402, cited by appellant, it was held that the King county superior court was a court of competent jurisdiction to review an order of the director of agriculture. This was not a pronouncement that the Thurston county superior court would not have been a court of competent jurisdiction to hear and determine that matter.
In State ex rel. Knight School District No. 311 v. Wanamaker, Wash., 281 P.2d 846, also cited by appellant in support of this assignment of error, we affirmed a judgment of the superior court for Mason county vacating an order of the state superintendent of public instruction. That proceeding involved the failure to renew the employment contracts of a school superintendent and a teacher.
On the appeal to this court in the Knight case, the state superintendent (not there represented by the office of the attorney general) took the exact opposite of the position here advanced in her behalf. It was contended that such a writ of review is properly to be heard only in Thurston county. However, in view of the special circumstances of that case (not here relevant), we declined to pass upon this question. Hence, the Knight case is not authority for or against the proposition that the Thurston county superior court had jurisdiction in the case before us.
The superior court of the state of Washington, in whatever county it is sitting, is expressly authorized to hear and determine applications for writs of certiorari. Washington constitution, art. 4, § 6, amendment 28; RCW 2.08.010 [cf. Rem.Rev.Stat. § 15]. See, also, RCW 7.16.030 et seq. [cf. Rem.Rev.Stat. § 1001 et seq.].
There is no statute which expressly, or by necessary implication, provides that a court proceeding of this kind must be brought in the county in which the school district is located. Nor has any statute been called to our attention which, on any other basis, fixes jurisdiction in proceedings of this kind in a superior court of some county other than Thurston.
This being the case, the question of whether such an action should be brought in one county rather than another is one of venue, rather than jurisdiction. It was proper to lay the venue of this action in Thurston county, because it was the county of residence of defendant (appellant). Rule 1, Rules of Pleading, Practice, and Procedure, 34A Wash.2d 68. That it has been the recent practice to institute such actions in Thurston county, see Appeal of Black (Board of Directors of Kennewick School District No. 17 v. Black), Wash., 287 P.2d 96, and companion cases.
In view of what is said above, it is unnecessary to decide whether appellant is correct in maintaining that this proceeding is not within the purview of RCW 4.92.010 [cf. Rem.Rev.Stat. § 886]. That statute requires that one having a cause of action against the state proceed in Thurston county. This action was brought in Thurston county, and, as we have held, properly so under the rule of court referred to above.
The remaining question presented on this appeal is whether the trial court erred in directing the state superintendent to hear and determine, and assume jurisdiction of, Bohanon's appeal from the ruling of the county superintendent, 'and to dispose of said appeal in accordance with and pursuant to said findings and conclusions.' In these findings and conclusions, the trial court held that the school board had not notified Bohanon, on or before April 15, 1954, of the decision not to renew his employment and the reasons therefor. Since, if this were the case, the contract of employment was renewed by force of statute, RCW 28.67.070, supra, the effect of the judgment was to direct the state superintendent to set aside the county superintendent's order of dismissal and grant Bohanon the relief he requested.
Thus, the trial court, while in terms directing the state superintendent to consider Bohanon's appeal, in effect decided the case on its merits. Likewise, both the county and state superintendents, while disclaiming jurisdiction because of asserted delay in Bohanon's original appeal to the county superintendent, had actually passed upon the merits of Bohanon's contention that he had not received timely statutory notice. This is true because the basis of their reasoning was that the decision of the board which aggrieved Bohanon was its letter of March 31, 1954, and that the thirty-day appeal period then began to run. The March 31, 1954, letter did not aggrieve Bohanon unless it complied with the statute, for otherwise it was of no force or effect.
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