Crabtree v. Board of Education

G-bay, P. J. This cause is in this court on appeal from a judgment of the Court of Common Pleas of Jackson County denying an injunction to plaintiff. The plaintiff, appellant herein, feeling aggrieved by this action of the trial court filed his notice of appeal and assigned the following errors: “I. The trial court erred in finding that the decision made by the board of education at the April 13, 1970 meeting not to re-employ plaintiff was valid when the Clerk of the Board was absent and the members of the Board did not choose one of their members to serve as Clerk pro-tempore. “II. The trial court erred in finding that the notice of intention not to re-emplov the plaintiff, dated April 14, 1970, was valid where the board’s determination not to reemploy the plaintiff was reached at a meeting where the *238 Clerk of the Board was absent and the members of the Board did not choose one of their members to serve as Clerk pro tempore. “III. The trial court erred in finding that a Board of Education may lawfully terminate the employment of a teacher eligible for a continuing contract on the mere recommendation of its Superintendent without giving such teacher notice of the cause for termination on a hearing, nor an opportunity to cure his deficiencies, if any. ’ ’ The operative facts are as follows. Plaintiff was employed under a limited teacher’s contract for a three-year period commencing in 1967 and ending June 30, 1970. The superintendent of the Wellston city schools, at a meeting of the Board of Education on April 13, 1970 recommended that plaintiff not be re-employed. A notice was given plaintiff on April 14, 1970 reflecting the action of the board. The regular clerk of the board was not present at the meeting of April 13, 1970 and the board did not choose one of their number to serve in his place as required by R. C. 3313.23. Mary Riley took notes of the meeting preparatory to the preparation of the minutes. It is the contention of plaintiff that since the requirements of R. C. 3313.23 were not met, minutes of the meeting could not be prepared, the notice to the plaintiff was a nullity and under other related sections of the law plaintiff is entitled to a continuing contract. Upon reading R. C. 3313.23, we do not find that the Legislature has fixed any penalty in cases where a board does not appoint one of their number pro tempore. There is no claim that there were any errors in the minutes. In fact, plaintiff urges that the board has no right to record any minutes under the circumstances. Plaintiff’s claim is that only the regular clerk or one elected under R. C. 3313.23 has the authority to record the minutes. If an injunction were granted under the circumstances, defendant board could never record and approve minutes or come within the ruling or philosophy of the Ohio Su *239 preme Court as enunciated in Village of Vinton v. James 108 Ohio St. 220. Plaintiff contends for a result that is exceedingly harsh and one which would thwart the announced intention of the school superintendent and school board. We believe that under the prudent rule announced by the Supreme Court in Village of Vinton v. James, supra, the school board should have a reasonable opportunity to make a record of their meeting of April 13, 1970 so that this court and any other court having jurisdiction of the matter could determine just what action was taken. It might develop that the action of plaintiff was prematurely brought. The gist of this action as it appears to us is as follows. What action was actually taken? How and by whom was such action taken ? What is the truthfulness of the minutes 1 To put our stamp of approval on the contention of plaintiff would be to exalt form over substance. We as a court are interested in what action was taken and the truthfulness of the minutes and not particularly in the question of who transcribed the minutes. Carrying plaintiff’s contention to its logical conclusion, a board of education could never rectify an error in its minutes by later action if it failed to appoint a clerk from one of its number when the regular clerk was absent. The gist of petitioner’s argument is that he is asking this court to permit him to secure a continuing contract by default. The criterion for the award of a continuing contract to him would be the alleged failure of the regular clerk to be present at a stated meeting of the defendant board and the failure to elect a clerk pro tern from the membership of the board. Certainly the General Assembly never intended such to be the standard for the employment of a teacher on a continuing contract. It is interesting to note that in the third assignment of error petitioner argues that the employment was terminated “without giving such teacher notice of the cause for termination on a hearing, nor an opportunity to cure Ms deficiencies, if any.” *240 We believe that by the same virtue defendant board should be given an opportunity to exhibit to the courts of Ohio the minutes of the meeting pertaining to the teacher contract of plaintiff and that the wise and logical rule announced by the Supreme Court as stated in Village of Vinton v. James, 108 Ohio St. 220 be given effect and that the validity of a contract for employment not turn on the presence or absence of a particular person, such as the regular clerk, at a meeting of the board of education. It is a generally recognized fact that most members of school boards are laymen and have not been trained in the law. We believe that plaintiff is attempting to read something into B. C. 3313.23 that isn’t there. The Legislature could have said that the failure of a board to appoint one of their number clerk pro tempore at a meeting where the regular clerk was absent, shall make any action taken by the board at such meeting a nullity. The Legislature did not say such a thing. Neither do we. As a general rule, resort should be had to remedies provided by statute before other remedies are sought. Where the statute prescribes a particular mode of review of an administrative action or decision, a litigant must, if aggrieved by the decision of the administrative agency, seek a judicial review in the manner prescribed and may not invoke the original jurisdiction of a court by an independent proceeding. Thus, an independent proceeding, such as an action for injunctive relief, is not permissible where an appeal from the action of an administrative agency is provided by statute as it is here. Plaintiff had a plain, adequate and complete remedy at law and has therefore suffered no irreparable injury. Accordingly, his petition has not stated a cause of action. The law of Ohio as it pertains to this question has been enunciated by the Supreme Court in the following cases. The syllabus of Perkins v. Village of Quaker City, 165 Ohio St. 120, establishes that an “injunction is an extraordinary remedy.” (Emphasis added.) At page 125 of the opinion, Judge Zimmerman said: *241 “The authorities are agreed that injunction is an extraordinary remedy equitable in nature, and that its issuance may not be demanded as a matter of strict right.” Justice O’Neill, now Chief Justice, speaking for the court in State, ex rel. Pressley, v. Indus. Comm., 11 Ohio St. 2d 141, 153, said: “The answer is simple. The right of appeal provided by Chapter 2506, Revised Code, is a plain and adequate remedy in the ordinary course of the law, while the in-junctive relief provided in Section 2727.01 et seq. and the mandamus relief provided in Section 2731.01 et seq. are extraordinary remedies not in the ordinary course of the law.” Also, see the opinion of Justice Herbert in State, ex rel. Sibarco Corp., v. Berea, 7 Ohio St. 2d 85. In the present case, the point has been made that the majority of this court did not pass upon the third assignment of error. In the first draft of the opinion that was released, we stated: “Plaintiff has not shown that he is entitled to injunctive relief, hence it will be denied and the judgment of the trial court affirmed.” In this draft of the opinion we state: For these reasons, plaintiff has not shown that he is entitled to injunctive relief, and has exhibited no prejudicial error among those assigned and argued. The judgment of the trial court is affirmed. We believe that thereby we have passed upon all of the assignments of error. Our research has turned up the case of Freeman v. The State of Ohio, 131 Ohio St. 85, which we think is disposi-tive of this question herein presented. The court at pages 88 and 89 said: “Counsel for plaintiff in error devotes three pages of his brief to a claimed error committed by the Court of Appeals in failing to write an opinion stating upon what principles of law the case was decided by the appellate court. While in many cases opinions may be desirable for the benefit of Bench and Bar, there is neither constitutional nor statutory provision requiring the appellate court to write an opinion. Where opinions of the lower *242 courts are available, this court has passed a rule requiring plaintiffs in error to submit the opinions of the lower courts with their briefs; but this does not mean that they are required to write opinions. Counsel for defendant relies entirely upon Section 12248 General Code. That section merely provides that errors assigned and pointed out by brief shall be considered by the appellate court; and that, in case of reversal and remand, the Court of Appeals shall state the error upon which the judgment of reversal was founded. This is done by journal entry. In any event, when the judgment of the trial court is affirmed, as in the present case, the last clause referred to cannot possibly apply.” The Supreme Court cited G. C. 12248, supra. This section is now embodied in R. C. 2505.21. It has also been suggested that an opinion should not and cannot be revised under the facts of this case. Let us see what an opinion is. An opinion does not constitute a judgment or order and forms no part of the record. It is not a paper in a case. The court speaks through its entries and not through its opinions. This is a case of first impression in Ohio with regard to the applicability of Chapter 2506 to the particular facts of this case. We make a point of it because we believe that the provisions of E. C. Chapter 2506 are dispositive of the question involved herein. For these reasons, plaintiff has not shown that he is entitled to injunctive relief and has exhibited no prejudicial error among those assigned and argued. The judgment of the trial court is affirmed. Judgment affirmed. Abele, J., concurs.