State ex rel. Withers v. Board of Educ. of Mason County

• Decision Date: 21 April 1970
• Docket Number: No. 12902,12902
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Charles WITHERS v. The BOARD OF EDUCATION OF MASON COUNTY et al. STATE ex rel. Charles CHAMBERS v. The BOARD OF EDUCATION OF MASON COUNTY et al.

Page 796

172 S.E.2d 796

153 W.Va. 867

STATE ex rel. Charles WITHERS v. The BOARD OF EDUCATION OF MASON COUNTY et al.

STATE ex rel. Charles CHAMBERS v. The BOARD OF EDUCATION OF MASON COUNTY et al.

No. 12902.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 10, 1970.

Decided March 17, 1970.

Rehearing Denied April 21, 1970.

Syllabus by the Court

1. By reason of the provisions of an amendment of R.C.P. 81(a)(5) made effective as of March 3, 1969, bills of exceptions or certificates in lieu thereof, formerly required by Code, 1931, 56--6--35 and 36, are not required in a mandamus proceeding appealed to this Court from the judgment of a circuit court.

2. An appearance in this Court by an appellee or a defendant in error by the filing of a brief and by oral argument of his counsel constitutes a general appearance and a waiver of any defects in or lack of service of process upon him pursuant to the provisions of Code, 1931, 58--5--12.

3. Under the provisions of Code, 1931, 18--5--4, as amended, it is required that a county superintendent of schools shall give a notice, in the manner provided in the statute, to any teacher recommended to be considered by the county board of education for transfer and subsequent assignment. It is mandatorily required by the statute that the teacher shall be given notice that he has been recommended for transfer and subsequent assignment, but it is not required that the notice shall also state the reason or reasons for the action of the superintendent in recommending such transfer for subsequent assignment by the board of education.

4. 'To entitle one to a writ of mandamus, the party seeking the writ must show a clear legal right thereto and a corresponding duty on the respondent to perform the act demanded.' Point 4 Syllabus, State ex rel. Zagula v. Grossi, 149 W.Va. 11 (, 138 S.E.2d 356).

5. 'Mandamus does not lie to control a board of education in the exercise of its discretion, in the absence of caprice, passion, partiality, fraud, arbitrary conduct, some ulterior motive, or misapprehension of law upon the part of such board.' Point 1 Syllabus, State ex rel. Payne v. Board of Education of Jefferson County, 135 W.Va. 349 (, 63 S.E.2d 579).

R. Michael Shaw, Pt. Pleasant, Gordon Billheimer, Montgomery, for plaintiff in error.

Greene, Ketchum, Baker & Pauley, Lawrence L. Pauley, Huntington, for defendant in error.

CALHOUN, Judge.

This case is before the Court on a writ of error to the judgment of the Circuit Court of Mason County entered on Spetember 2, 1969, in two separate proceedings in mandamus which were consolidated for hearing and decision by the trial court, sitting without a jury. In the two proceedings, Charles Withers and Charles Chambers, respectively, were the relators. In both cases, the respondents were the Board of Education of Mason County, the five individual members of that body and I. Brooks Smith, the County Superintendent of Schools of Mason County.

The cases which were consolidated involved the action of the board of education in ordering the transfer of Charles Withers and Charles Chambers from their respective positions of employment as principal and as assistant principal of Point Pleasant High School. In the consolidated mandamus proceedings, the relators sought a court order requiring the respondents to retain the relators in their respective positions of employment at Point Pleasant High School.

By the order entered on September 2, 1969, the trial court awarded a writ of mandamus commanding the respondents to restore the relators to their respective positions of employment 'and to restore to each of the relators all of the remuneration and emoluments of the offices of Principal and Vice Principal to which they are entitled for the period during which they were deprived by the actions of the respondents from performing the duties of their respective offices.' It is from the judgment embodied in this court order that the respondents were granted the writ of error to this Court on December 8, 1969.

After the case was appealed to this Court, the respondents were granted leave to move to reverse the judgment of the trial court pursuant to Code, 1931, 58--5--25 and Rule IX of the Rules of this Court. In these circumstances, the case was submitted for decision in this Court upon the original record and upon briefs which were typewritten rather than printed. The case was argued orally by counsel for the respective parties.

By a writing duly filed on January 9, 1970, the respondents have moved to dismiss the appeal to this Court as having been improvidently awarded because of the fact that the relators failed to obtain a bill of exceptions or a certificate in lieu thereof pursuant to the provisions of Code, 1931, 56--6--35 and 36. These statutory provisions are not applicable because they have been superseded by an amendment of R.C.P. 81(a)(5), by order entered on March 3, 1969, which, of course, was effective before the entry of the judgment order on September 2, 1969.

The written motion to dismiss the appeal asserts that no summons was issued and served upon Withers and Chambers pursuant to Code, 1931, 58--5--12. The record in the office of the Clerk of this Court discloses that proper and timely summonses were mailed to one of counsel for the respondents. This proposition relating to service of process has not been urged by counsel in this Court either by brief or by oral argument. Following is the first point of the syllabus of Roach v. Wallins Creek Collieries Company, 111 W.Va. 1, 160 S.E. 860: 'The pendency of a suit on appeal in the Supreme Court of Appeals originates in the awarding of the appeal or writ of error, and does not depend upon the issuance of summons as in the Nisi prius court.' See also Worsham v. Hewlett, 114 W.Va. 616, 173 S.E. 78. In any event, the appearance of the defendants in error by the filing of a brief and by oral argument of counsel constituted a general appearance and the defect, if any, in the service of process was waived. William F. Mosser Company v. Payne, 92 W.Va. 41, pt. 1 syl., 114 S.E. 365.

The motion to dismiss also asserts that the petition for a writ of error is defective because of its failure to assign errors as required by Code, 1931, 58--5--4. Subsection 1, Rule II of the Rules of this Court contains a similar provision as follows: 'A petition for an appeal or writ of error should briefly state the case and must assign errors, * * *.' The petition in this case assigns numerous errors and is proper in this respect. The written motion to dismiss also asserts that the case has now become moot. We will consider and discuss the question of alleged mootness subsequently in this opinion.

Charles Withers and Charles Chambers held their respective positions as principal and assistant principal of Point Pleasant High School for the 1968--69 school term and for several prior school terms. Code, 1931, 18--5--4, as amended, contains the following language relating to county boards of education:

'* * * At a meeting of the board, on or before the first Monday in May, the superintendent shall furnish in writing to the board a list of those teachers to be considered for transfer and subsequent assignment for the next ensuing school year; all other teachers not so listed shall be considered as reassigned to the positions held at the time of this meeting. Such list of these recommended for transfer shall be included in the minute record and the teachers so listed shall be notified in writing, which notice shall be delivered in writing, by certified mail, return receipt requested, to such teachers' last known addresses within ten days following said board meeting, of their having been so recommended for transfer and subsequent assignment.'

Code, 1931, 18--4--10(3) authorizes the county superintendent of schools to transfer teachers 'subject only to the approval of the board.'

At a special meeting of the board of education held on April 29, 1969, Superintendent Smith submitted a list of teachers to be considered for transfer and subsequent assignment, pursuant to the provisions of Code, 1931, 18--5--4, as amended, which provisions have been quoted previously in this opinion. Among teaching personnel recommended by the superintendent for transfer and subsequent assignment by the board were the relators, Charles Withers and Charles Chambers. The list submitted by the superintendent merely recommended the transfer of the relators from their positions at Point Pleasant High School, with the following notation in each of the two cases: 'Inadequate Planning and Supervision.' The list submitted by the superintendent to the board did not include a recommendation of a place or position to which either of the relators should be transferred.

At a regular meeting of the board held on May 13, 1969, the superintendent submitted to the board a written statement, pursuant to the provisions of Code, 1931, 18--5--4, as amended, containing a list of five teachers, including both relators in this case, each being designated by name, who were recommended by the superintendent for transfer and subsequent assignment for the 1969--70 school term. Two of the five, according to the report submitted to the board, had requested transfers. The fifth, according to the report, had been recommended for transfer by her principal. The superintendent's report to the board stated that the five persons recommended for transfer and subsequent assignment 'were notified by certified mail with receipt attached.'

It is not denied that Superintendent Smith mailed to each of the two relators, 'by certified mail, return receipt requested,' a letter stating that he had been recommended to the board, at the April 29, 1969, special meeting, for transfer and subsequent assignment. It is not disputed that each of the relators received the letter thus mailed to him. The letters were similar in form and content. The letter to Withers, for example,...