State ex rel. Saxtorph v. District Court, Fergus County

• Decision Date: 19 October 1954
• Docket Number: No. 9432,9432
• Citation: 275 P.2d 209,128 Mont. 353
• Parties: STATE of Montana ex rel. Gertrude SAXTORPH, Relator, v. DISTRICT COURT, FERGUS COUNTY et al., Respondents.
• Court: Montana Supreme Court

Page 209

275 P.2d 209

128 Mont. 353

STATE of Montana ex rel. Gertrude SAXTORPH, Relator, v. DISTRICT COURT, FERGUS COUNTY et al., Respondents.

No. 9432.

Supreme Court of Montana.

Submitted June 15, 1954.

Decided Oct. 19, 1954.

DeKalb, Dockery & Symmes, Weymouth D. Symmes and Raymond E. Dockery, Jr., Lewistown, for relators. Weymouth D. Symmes and H. H. Leonard DeKalb, Lewistown, argued the case orally.

J. E. McKenna, County Atty., Donald E. Ronish, Deputy County Atty., Lewistown, argued the case orally, for respondents.

FREEBOURN, Justice.

This is an original proceeding wherein the relator, Gertrude Saxtorph, peititoned this court to issue a writ of review directed to the respondent district judge, whereby relator sought to quash and vacate a writ of prohibition issued by such judge.

Gertrude Saxtorph had been a teacher of mathematics in the junior high school in Lewistown, Fergus County, Montana, since January 1, 1946, under a secondary certificate from the State of Montana, which permitted her to teach in any public school in the State of Montana, in any grade from the fifth through the twelfth. Such certificate to teach was issued in 1927.

Relator taught as a full time teacher from 1946 to the summer of 1949, when at the request of the school board having jurisdiction over such junior high school, she went on a part time teaching basis, having classes only in the morning and teaching 17 hours a week.

By letter, dated March 25, 1954, the school board, through the superintendent of schools of Fergus County, notified relator that at a March 24, 1954, meeting of the school board 'a motion was made that Gertrude Saxtorph not be rehired for 1954-55 school year and that she be so advised in writing before April 1, 1954.'

Requested to reconsider its action in not rehiring relator, the school board after hearing had on April 12, 1954, refused to rehire relator.

The reasons for dispensing with relator's services as a teacher are set out in the letter dated April 27, 1954. In part it reads: 'As you are no doubt aware, the Board at a meeting held on March 24, 1954, passed a motion that you would not be rehired for the 1954-55 school year, and you were notified to that effect by letter dated March 25, 1954. Thereafter you requested the School Board to state clearly and explicitly the specific reasons for the failure of such re-employment and in accordance with this request advised you in writing * * * by a letter dated March 30, 1954, * * * the reasons given were as follows: * * *

"That it is necessary for making assignments that as much part time teaching as possible be eliminated; that it is not possible to elect any Junior High School academic classroom teacher on a part time basis hereafter under the conditions now existing; that through experience of the past, half-time teachers do not have the same relationship to the school, the pupils and the parents as a full time teacher; that there is a definite loss of efficiency from teachers employed on a part time basis, which increases the problems relating to programming the classes, and that the school must have first claim on the time and interests of those employed as teachers; that therefore, the said Board of Trustees has determined that your part time teaching position be abolished and eliminated.'

'By your letter dated April 2nd, 1954, * * * you requested a hearing and reconsideration of said board's decision not to rehire you, and the Board of Trustees met for the purpose of holding such hearing on April 12th, 1954.

'* * * after such reconsideration our decision remains the same * * * that your services as a teacher will not be required for the ensuing school year of 1954-55.

'Although full-time vacancies in the teaching staff have occurred since our motion not to rehire you was passed, it does not follow in our opinion that you are thereby automatically qualified for appointment as a full time teacher, nor does the fact of such vacancies among the full time teaching staff render our decision not to rehire you null and void.

'* * * since said time, [March 30th, 1954] because of your actions and because of the statements made by your attorneys to certain persons * * * we now deem it necessary * * * that all these reasons be now set forth. These reasons are given now as a part and in support of our first reason hereinbefore presented to you in our letter dated March 30th, 1954. * * *

'(1) Mrs. Saxtorph has caused the emotional stability of the school to be upset by declaring publicly before parents and school children and by sworn affidavit that the school system has retrogressed twenty years these past five months, and by demanding the discharge of the school superintendent and by criticizing the present school superintendent and school board;

'(2) You have openly, publicly and arbitrarily inflamed public sentiment against the school superintendent and school administration to the detriment of the school;

'(3) You have sought to degrade the school superintendent by seeking to submit him to cross-examination by attorneys at a public meeting not called for that purpose, but for the purpose of public discussion and to discuss the reasons for the failure to grant a new contract to three teachers other than yourself, none of whom had attained tenure;

'(4) You have contacted members of the Board of Trustees, as individuals, rather than as a board, for the purpose of criticizing the school administration and to entice and convince them that they should discharge the present school superintendent;

'(5) You have generally, over a period of several weeks, stirred up public strife by publicly carrying an attitude of antagonism towards the school board and the superintendent of the city schools, by publicly denouncing said school board and superintendent in public meetings and on the streets of the city of Lewistown, and your attitude has been one of antagonism and insubordination towards the present school Board and the present superintendent of said schools;

'(6) That your public denunciation of the schools has disturbed the administration and thinking of the students who are attending school to a state of hysteria and unrest to such a degree that it has disrupted the orderly conduct of the said school system and interrupted the progress of the students in their scholastic achievements. * * *'

Relator immediately filed her written appeal from the school board's decision with the county superintendent of schools of Fergus County, who set such appeal for hearing on May 28, 1954.

On May 18, 1954, the school board filed a petition in the district court praying for an alternative writ of prohibition directed to the county superintendent of schools to show cause why she should not 'desist and refrain from further and all proceedings in a proceeding entitled 'In the matter of Gertrude Saxtorph' [relator's appeal from the decision of the school board to the county superintendent of schools], * * * and that she be restrained from hearing the said appeal of said matter, or to try the same whatsoever,' and that the court direct the county superintendent of schools 'pending the hearing of the above-entitled matter and the further order of this court, desist and refrain from proceeding with the trial of said matter before the said county superintendent of schools, or having any other proceedings therein * * *'

Upon the filing of the school board's petition, the district court, on May 25, 1954, issued an alternative writ of prohibition, setting such petition for hearing on June 10, 1954. Such alternative writ of prohibition restrained and prohibited the county superintendent of schools from hearing relator's appeal until further order of the court, and directed such county superintendent of schools to show cause at the June 10th hearing 'why you should not be absolutely and permanently restrained from any further proceedings in said matter.'

On May 26, 1954, relator filed a petition for a writ of review in this court seeking to quash and vacate the district court's alternative writ of prohibition and to halt the hearing thereon set for June 10, 1954. This court heard oral arguments in the matter by counsel for relator and respondents on June 8, 1954.

The writ of prohibition lies against the county superintendent of schools only if she is acting without or beyond her jurisdiction. 'The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person.' R.C.M.1947, § 93-9201.

'The same [writ of prohibition] may be issued by the supreme court or the district court, or any district judge, to any inferior tribunal, or to a corporation, board, or person, in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. It is issued upon affidavit on the application of the person beneficially interested.' R.C.M.1947, § 93-9202.

In State ex rel. Myersick v. District Court, 53 Mont. 450, 164 [128 Mont. 359] P. 546, 547, this court said: 'The writ of prohibition is an extraordinary judicial writ which issues, not as a matter of right, but only in the sound legal discretion of the court. State ex rel. Lane v. District Court, 51 Mont. 503, 154 P. 200, L.R.A.1916E, 1079. It is to be used sparingly for the furtherance of justice and to secure order and regularity in the inferior tribunals. It arrests proceedings of a judicial character when such proceedings are without or in excess of jurisdiction (Rev.Codes, § 7227 [Rev.Codes 1907, R.C.M.1947, § 93-9201]), but it issues only when there is not a plain, speedy and adequate remedy in the ordinary course of law. (Rev.Codes, § 7228 [1907, R.C.M.1947, § 93-9202]; State ex rel. Browne v. Booher, 43 Mont. 569, 118 P. 271.)' See Boucher v. St....