State ex rel. Rogers v. Board of Education of Lewis County

• Decision Date: 04 May 1943
• Docket Number: C. C. No. 666.
• Parties: STATE ex rel. ROGERS v. BOARD OF EDUCATION OF LEWIS COUNTY et al.
• Court: West Virginia Supreme Court

25 S.E.2d 537

125 W.Va. 579

STATE ex rel. ROGERS v. BOARD OF EDUCATION OF LEWIS COUNTY et al.

C. C. No. 666.

Supreme Court of Appeals of West Virginia.

May 4, 1943

Stathers, Stathers & Cantrall, of Clarksburg for plaintiff.

Linn Mapel Brannon, of Weston, and Haymond Maxwell, of Clarksburg for defendants.

ROSE Judge.

The Circuit Court of Lewis County, on its own motion, has certified here the questions of law arising upon the demurrer of Marion G. Rogers, who claims to be the legal county superintendent of schools of that county, the relator in a mandamus proceeding, to the answer of the Board of Education of Lewis County, its individual members and Hobert Beeghley who purports to be acting as county superintendent of schools of said county, to a rule awarded by that court.

The petition shows that Rogers was regularly appointed superintendent of schools for Lewis County by the Board of Education on the 6th day of July, 1942, for a term of four years ending the 30th day of June, 1946, and that he has ever since been, and was at the time of filing the petition, such superintendent; that the Board, composed of D. D. Chapman, Ralph M. Fisher, Dewey Hawkins, Arthur R Ward and George Harrison, said Chapman being president thereof, at a meeting held on the 23rd day of February, 1943, by the vote of Fisher, Hawkins and Ward, Harrison and Chapman voting in the negative, accepted charges preferred against the relator by Fisher for the purpose of removing him from his said office, under Section 3, Article 4, Chapter 34 of the Acts of the Legislature 1937; and that a notice of said charges containing a copy thereof, signed by said Fisher, Hawkins and Ward as members of said board, was duly served on the relator, by which he was also notified that a meeting of the board would be held March 5, 1943, "to afford you (relator) an opportunity to be heard upon said charges and to show any reasons, if any you can, why you should not be removed as County Superintendent of Schools." These charges were as follows:

"(1) Assigned and transferred Arline Peterson, a teacher of this County, from a school taught by her at Ireland to the Kitsonville school without first obtaining the approval of the Board, and in direct violation of the Board's refusal to approve the transfer of said teacher, heretofore requested by said Superintendent.

"(2) Certifying to the Board the payment to Robert Fields, a teacher, for the full month of December, 1942, when the said Superintendent knew that the said Fields had been absent, without leave of the Board, for a period of 6 days.

"(3) Changed and moved the school bus place of storage to a new location without informing the Board of said change and also without obtaining the Board's consent to said change.

"(4) Permitted Paul Matthews, a student, to absent himself from school for 4 days to accompany Robert Fields, a teacher and band instructor, on a trip to New York, and on the return to school of said student, directed and instructed Fred P. Weihl, Principal of Weston High School, to excuse the absences from class of said student.

"(5) Placing and assigning Mrs. Murray McWhorter, a substitute teacher, to the Kitsonville school without the approval of the Board and in direct violation of the Board's instructions.

"(6) Paying one Jennie Stalnaker, a substitute teacher, for 2 days of teaching, by United States Post Office Money Order, dated the 11th day of February, 1943, in the amount of $10.00, with funds withdrawn from a petty cash account (which petty cash account is maintained by said Superintendent without the approval of the Board) instead of certifying to the Board for payment the salary due said teacher.

"(7) Causing to be installed in the Administration Building a furnace, having constructed a partition and making a classroom in said building, without knowledge of the Board and without the Board's authorization and direction so to do.

"(8) Advising the faculty of Weston High School that the Board was composed of lay individuals who did not know anything about education and advising the faculty

to dismiss from their monds and forget the advice, instructions and counsel given by certain Board Members to the faculty at an open forum meeting of the Board, held on the 7th day of January, 1943.

"(9) Deliberately making a false statement to A. R. Ward, a Board Member, in that, he informed said member that Eloise Peninegar, a teacher, would have to teach in any school that he, the said Superintendent, directed, and deliberately denied in a Board meeting, held on the 12th day of Feb., 1943, that he made such a statement.

"(10) Misrepresented to the Board as to the qualifications of certain teachers."

The relator further alleges that on the 5th day of March, 1943, at the hour and place appointed, relator appeared in person with his counsel, for the purpose of making defense against said charges, but that the board refused to allow him to be assisted by counsel, and required his counsel to retire from the room, and further refused to reduce to writing the evidence which might be taken, unless the petitioner himself would furnish a stenographer for that purpose at his own expense; that thereupon the petitioner refused to make any further appearance, but, with his counsel, retired from the room; that thereupon certain persons appearing as witnesses were permitted to make statements to the board without being sworn, whose pretended evidence was preserved pursuant to Acts of Legislature 1937, Chapter 34, Article 4, Section 10(8), by an assistant superintendent of said county, designated by the board as its secretary for the meeting, which evidence as so preserved was as follows:

"Mr. John A. Henderson, Chairman of the local Rationing Board, was called in. He stated that Mr. Field, the Band Master, first asked for extra gas to go to New York. Then he asked for enough to go on to Albany to see his Draft Board. He was finally allowed gas for this trip, but was refused a later request for gas for a trip to Washington, D. C. He said Mr. Field did report to the Ration Board and surrendered the unused gas stamps left from the New York trip.

"The following teachers were then called from the Weston High School building and separately interviewed concerning the statements made by Supt. Rogers at a special faculty meeting:

"Rev. Frank Reed, who said, upon hearing the charge read, 'Something like that was used.' 'That was the essence of it.' 'Lay member was used', and 'Pay no attention'.

"Mrs. Thelma Kessler said, 'He said board members could not look at things like a teacher or a schoolman'.

"Miss Griffin said she 'heard a statement similar to the one charged'. Also, 'Should not have been held before the pupils and the public.' She read some notes taken in the faculty meeting above mentioned.

"Miss Wells had heard 'Something like' the charge statement.

"Mr. Woofter said, 'It was a similar statement. I can't remember just what'."

The petition further sets forth that no other evidence was taken; that upon the statements of these so-called witnesses, the said board found the charges against the petitioner to be sustained and purported to remove him from his office, Chapman, president thereof, however, voting in the negative; that thereafter the respondent, Beeghley, was by the board elected county superintendent of schools for said county in petitioner's place and stead, who thereupon immediately entered upon the performance of the duties of such superintendent to the exclusion of the petitioner.

The petitioner maintains that the charges were insufficient; that the hearing was void because of the board's refusal to allow any assistance of counsel; that the evidence is a nullity for the reason that the witnesses were not sworn; and that, even if considered, it does not show the petitioner to have been guilty of any act or omission for which he could be removed from office.

Upon issuance of the rule, the respondents filed a demurrer to the petition, which was overruled; whereupon they filed their joint and separate answer thereto. This answer, so far as we can see, raises no issue of fact except that it is alleged therein that the board heard, in addition to the witnesses mentioned in the petition, the unsworn testimony of Harrison, Fisher, Hawkins and Ward, members of the board, without indicating the character or contents of their evidence. The respondents, however, rely principally upon the legal contentions that the relator was not entitled to have the assistance of counsel at the hearing; that since he made no denial of the charges or evidence in support thereof, the evidence, preserved and not preserved, was adequate to sustain the charges against the relator; and that, therefore, the proceedings taken were sufficiently regular to effect legally the removal of the relator from office.

To this answer a demurrer was filed by the petitioner on the grounds that it does not traverse the material allegations of the petition, nor set up sufficient facts in avoidance thereof; that it does not show legal compliance with the statutes governing the procedure for the removal of a county superintendent from office; that, by admitting that the relator was denied his right to counsel, and that the witnesses against him were not sworn nor the evidence fully reduced to writing, the respondents show the hearing to have been void; and that it shows that the charges were not grounds for the removal of the relator from office. This demurrer was overruled and the questions arising thereon certified as stated.

On argument here, a motion was made to dismiss the whole proceeding on the broad ground that mandamus cannot be resorted to for the purposes sought here. The full question of law involved...