Verberg v. Board of Education of City School Dist. of Cleveland

• Decision Date: 05 April 1939
• Docket Number: 27250.
• Citation: 20 N.E.2d 368,135 Ohio St. 246
• Parties: VERBERG v. BOARD OF EDUCATION OF CITY SCHOOL DIST. OF CLEVELAND.
• Court: Ohio Supreme Court

20 N.E.2d 368

135 Ohio St. 246

VERBERG v. BOARD OF EDUCATION OF CITY SCHOOL DIST. OF CLEVELAND.

No. 27250.

Supreme Court of Ohio

April 5, 1939

Syllabus by the Court.

Boards of education are creatures of statute and have only such jurisdiction as thus conferred. They may not, under their rule-making power granted by statute, confer upon themselves further jurisdiction or authority. Davis et al., Civil Service Comm. v. State, ex rel. Kennedy, Dir. of Public Service, 127 Ohio St. 261 187 N.E. 867, approved and followed.

2. A board of education may not prescribe grounds for the removal of employees who are within the classified service other than or in addition to those enumerated by statute, or exempt itself from the procedural requirements of Section 486-17a, General Code.

This case originated in the Court of Common Pleas of Cuyahoga county. Issue was made by a general demurrer to the amended petition of the plaintiff.

The amended petition alleges that plaintiff is an employee in the classified service of the city school district of Cleveland; that he is a member of the state Public School Employees' Retirement System; that he brings the action on his own behalf and on behalf of all other employees in the classified service of said city school district similarly situated; and that defendants are the members of the board of education of such city school district and the director of schools, respectively.

It is further alleged that in April, 1938, the board of education adopted the following resolution:

'Be it resolved that [by] the Board of Education of the City School District of the city of Cleveland, Ohio; that the regulations of the administrative code governing employees of this board be amended as follows:

'1. No contract shall be entered into for the employment of a teacher for any school year if such teacher has attained or shall attain the age of sixty-five years before the first day of such school year.

'2. All other employees shall be honorably retired by the director of schools from the service of this board at the end of the school year during which such employees shall have attained the age of sixty-five years.

'Be it further resolved, that for the purpose of this resolution a school year shall be defined as the period from September 1st to and including August 31st of the next succeeding year,

'And further be it resolved, that resolution No. 22302 adopted by this board on February 14, 1938, be and the same is hereby rescinded.'

It is alleged further, in effect, that the retirement of members of the Public School Employees' Retirement System is provided for by Section 7896-99, General Code; and that plaintiff is sixty-six years of age, but has not elected to retire under such section.

It is also alleged, in effect, that Section 486-17a, General Code, fixes the tenure of civil service employees of city school districts during good behavior and efficient service; that plaintiff had been efficient in his service and no charges of misconduct had been preferred against him; and that defendants would proceed, unless restrained, to deprive him of his employment for the sole reason that he is sixty-six years of age, in derogation of the rights of the plaintiff and his class as civil service employees of such city school district.

Plaintiff prayed that the resolution of the board of education be declared null and void, that defendants be enjoined from giving effect to it, and that they be further enjoined from discharging or separating plaintiff and his class from their employment for the reason only that they had attained the age of sixty-five years prior to August 31, 1938.

The Common Pleas Court overruled the demurrer and, defendants not desiring to plead further, judgment for plaintiff as prayed for was entered. On appeal, the Court of Appeals affirmed the judgment of the Court of Common Pleas. The case is in this court for review by reason of the allowance of a motion to certify.

Henry S. Brainard, Director of Law, and Charles W. White, both of Cleveland, for appellant.

Phillips & Falsgraf, of Cleveland, for appellee.

MATTHIAS Judge.

The single question presented is whether a board of education has authority to adopt and enforce a rule requiring the retirement of its employees who are within the classified service upon attaining the age of sixty-five years. The board of education claims such authority by virtue of Sections 4749 and 4750, General Code. The former section confers very broad general powers upon boards of education, while the latter section provides as follows: 'The board of...