Weaver v. The Bd. Of Educ. Of The County Of Calhoun., (No. 9661)

• Decision Date: 16 October 1945
• Docket Number: (No. 9661)
• Citation: 128 W.Va. 42
• Court: West Virginia Supreme Court
• Parties: Grace Weaver v. The Board of Education of the Countyof Calhoun et al.

128 W.Va. 42

Grace Weaver

v.The Board of Education of the County

of Calhoun et al.

(No. 9661)

Supreme Court of Appeals of West Virginia.

Submitted September 26, 1945.

Decided October 16, 1945.

Mandamus

Mandamus does not lie to compel a county board of education and a county superintendent of schools to recognize a person as a teacher in a particular school who has not been assigned to such school by the superintendent with the approval of the board.

Error to Circuit Court, Calhoun County.

Proceeding by Grace Weaver for a writ of mandamus commanding the Board of Education and Superintendent of Schools of the County of Calhoun to recognize relator as a teacher in the Grantsville Graded School and permit her to carry out the terms of a continuing contract of employment as a teacher. Judgment awarding a peremptory writ, and respondents bring error.

Reversed and remanded.

Lorentz C. Hamilton, for plaintiff in error. Bruce Ferrell, for defendant in error.

Lovins, President:

The Circuit Court of Calhoun County awarded a peremptory writ of mandamus on the petition of Grace Weaver, which commanded The Board of Education of the County of Calhoun and the county superintendent of that county to recognize relator as a teacher in the Grantsville Graded School for the school term 1944-1945, and to permit relator to carry out the terms of the continuing contract entered into by relator with said board.

The material facts, as alleged in the petition, are: Relator is the holder of a life certificate as a teacher in the public schools of this State, under which she as taught thirteen terms of school. She was assigned to teach in the graded school at Grantsville in the year 1942, and taught therein for the 1942-43 and 1943-44 terms. At a meeting of the board held on August 2, 1944, at which the superintendent was present, relator was assigned to teach in the school at Prosperity. She now alleges that she was transferred from the Grantsville Graded School to the Prosperity school. Relator resides in Grantsville and the school to which she was assigned in 1944 is some distance from her residence, and owing to the difficulty and expense of transportation relator alleges that she would not be justified in teaching at the Prosperity school. It is alleged that the action of the board in assigning her to teach at the Prosperity school was not taken as a regulatory measure or to meet an emergency, and that said assignment was arbitrarily and capriciously made by said board. Other facts and conclusions alleged in the petition are not material.

Upon the filing of the petition a rule was awarded, returnable on the 24th day of August, 1944. The board demurred to the petition, and assigned several grounds for the demurrer. Most of the reasons assigned in said demurrer go to formal defects in the petition, which in our view require no discussion. Two grounds of the demurrer are determinative of the rights of relator and in substance are: (1) That relator was not assigned to teach in the Grantsville Graded School and (2) that no contract between relator and the board of education is pleaded. The court overruled the demurrer and ordered the board and the superintendent to file their answers or to make such other defense in this proceeding as they might desire, on the 26th day of August, 1944. Respondents made no further defense and on August 26, 1944, without hearing any evidence the court awarded the peremptory writ. The board and the superintendent prosecute this writ of error, assigning two errors: (a) The action of the court in overruling the demurrer to the petition, and (b) awarding the peremptory writ without evidence to sustain the allegations of the petition.

Relator contends that a petition in a proceeding in mandamus is not demurrable. It was formerly held that a petition in mandamus was not a pleading, and that its sufficiency could not be tested by a demurrer. Fisher v. City of Charleston, 17, W.Va. 595; State v. Heatherly, 102 W.Va. 116, 118, 134 S.E. 594. Since the decisions in the Fisher and Heatherly cases significant statutory changes have been made in proceedings in mandamus. It is now provided by statute that a defendant in a proceeding in mandamus may make defense by demurrer or sworn answer to the petition, or both. Chapter 26, Acts of the Legislature, Regular Session, 1933.

The question of assignment of teachers to specific schools was before this Court in the cases of Neal v. Board, 116 W.Va. 435, 181 S.E. 541; White v. Board, 117 W.Va. 114, 184 S.E. 264; Roivan v. Board, 125 W.Va. 406, 24 S.E. 2d 583. In the Rowan case it was held that: "The holder of a ...