
    The State, ex rel. Insley, v. Board of Education of Stokes Township Rural School District et al.
    (Decided December 8, 1932.)
    
      Mr. Roy Warren Roof, for plaintiff.
    
      Mr. George 8. Middleton, for defendants.
   Klinger, J.

In the year 1931 Jay W. Insley was employed by the Board of Education of Stokes Township Rural School District, of Logan county, Ohio, for a period of three years, to act as assistant superintendent and teacher of the Stokes Township centralized school located in the village of Lakeview, Logan county, Ohio, at a salary of three thousand dollars a year. In pursuance of this contract, in September, 1931, he entered upon his duties as such assistant superintendent and teacher, and has continued up until this time.

In October, 1932, charges were filed with the board of education, accusing the said J. W. Insley with improper conduct with certain pupils of said school. Notice was served on Mr. Insley of the accusations filed with the board, and a time for hearing said charges was set.

This proceeding was commenced on the 3d day of November, 1932, in this court, seeking to prohibit and restrain the board of education from proceeding to hear, try and determine said purported charges against J. W. Insley.

The relator contends that the school board have no authority and power to hear, try and determine the charges preferred against him, because, as he contends, they are interested, biased and prejudiced against relator.

The school board, in this case, are attempting to proceed as provided in Section 7701, General Code. Relator contends that Section 7701, General Code, as well as Section 7708, General Code, are unconstitutional.

If, as claimed by relator, the whole of Section 7701, General Code, be unconstitutional, which point it is unnecessary to decide here, there would, at common law, inhere in a board of education the power to dismiss a teacher for lawful cause, without the right of such teacher to be heard in the matter at all; and a threatened dismissal for such cause could not be prevented by a court.

Section 7708, General Code, provides a remedy, whether exclusive or not, for dismissal for an unlawful cause, and the remedy for such dismissal must in any event lie in an action at law for damages, or in quo warranto, as was the case in Christmann v. Cole man,, 117 Ohio St., 1, 157 N. E., 482, in which latter case the question whether the action was a proper remedy was neither expressly raised nor decided.

But if Section 7708, General Code, be unconstitutional, the situation would be as it was when there was no such statute, and relator would have no remedy at law. See Shuck, Admx., v. Board of Education, 92 Ohio St., 55, 110 N. E., 533.

The action of the board of education contemplated in this suit is not in any sense a judicial act, or even a quasi judicial act, but is only administrative, and the board’s action is final and cannot be prevented by a court in a proceeding in prohibition. State, ex rel. Attorney General, v. Hawkins, 44 Ohio St., 98, 5 N. E., 228. See, also, State, ex rel. Nolan, v. ClenDening, 93 Ohio St., 264, 112 N. E., 1029; State, ex rel. Firestone Tire & Rubier Co., v. Duffy, 114 Ohio St., 702, 705, 152 N. E., 656.

For these reasons, the relief prayed for by plaintiff will be denied.

Writ denied.

Crow, P. J., and Kinder, J., concur.  