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Biehn v. Tess





Interlocutory appeal by defendants from the Superior Court of Cook county; the Hon. JOHN J. LUPE, Judge, presiding. Heard in the third division of this court for the first district at the December term, 1949. Order reversed. Opinion filed March 8, 1950. Rehearing denied March 31, 1950. Released for publication April 3, 1950.


Rehearing denied March 31, 1950

In a complaint, as amended, filed by Albert L. Biehn in the superior court of Cook county against the Board of Education of Community High School District No. 219, Cook county, Illinois, and the members of the Board of Education thereof as such and as individuals, he alleged that he had been employed by the board as superintendent-principal on July 1, 1942, and that his employment had been continuous up to August 11, 1949, when the board acted upon charges against him, attached to the complaint as Exhibit 1, and adopted a resolution, Exhibit 2, dismissing and removing him. In this resolution provision was made for a hearing, if requested. The complaint, as amended, alleges that he requested a hearing. Plaintiff alleges that the causes for his dismissal are remediable and that he should have been given an opportunity to remedy them. He asks that the defendants be forever restrained from prosecuting the charges, that he be reinstated and that he be awarded damages of $20,000. In oral argument the lawyers stated that the district embraces all of Niles Township and that the high school is in the Village of Skokie. Two taxpayers filed an intervening petition asking for similar and some additional relief. Earl Girard, a defendant and a member of the board, filed his appearance pro se and later filed his answer to the complaint. In his answer he admits all the allegations of the complaint except those relating to plaintiff's claim for money damages. The other defendants filed motions to strike and dismiss the complaint as amended and the intervening petition. The court overruled both motions, but struck from the intervening petition certain matters not pertinent here. These defendants did not stand on their motions, but were given leave to answer. The order overruling their motions also contained the following injunctional order:

"That until the further order of this court, or until the final determination of this cause, all of the defendants herein and each of them and their respective agents and attorneys are hereby enjoined and restrained from further prosecuting the `Charges Against Dr. A.L. Biehn' which have been made by the defendants against the plaintiff and a copy of which are attached to and made a part of the Complaint as `Exhibit 1' thereto, and are also hereby restrained and enjoined from bringing the plaintiff to trial upon the said charges or any of them."

Defendants appealed from this interlocutory injunctional order.

[1-4] At the outset we are faced with a procedural question. Plaintiff maintains that sec. 78 of the Civil Practice Act (par. 202, ch. 110, Ill. Rev. Stat. 1949 [Jones Ill. Stats. Ann. 104.078]) permitting appeals from certain interlocutory orders is not intended to provide for a review of the rulings of the trial court on motions in the nature of demurrers; that the only purpose of that section is to permit a review of the exercise of the discretion lodged in the chancellor for the purpose of determining whether the interlocutory order was necessary to maintain the status quo and preserve the equitable rights of the parties; that a defendant who has "demurred" to a complaint and been defeated thereon and against whom an interlocutory injunction has issued, will not be permitted on appeal to argue the sufficiency of the complaint; that in such case he is confined to the question as to whether there was an abuse of discretion in the granting of the injunction; and that in the instant case the defendants who elected to answer cannot argue the questions raised by their "demurrer" which were decided adversely to their position. An examination of the complaint shows that plaintiff's case is based on the alleged failure of the board to give him "reasonable warning in writing, stating specifically the causes which if not removed, may result in charges" for his removal as a principal. The sole issue on this appeal is whether plaintiff is entitled to any injunctive relief. This of necessity brings into question the sufficiency of the complaint. There can be no doubt that if plaintiff did not have an equitable right to an injunction, that the order therefor was improper. In a proper case a court of equity will grant a temporary injunction to preserve and hold in status quo the rights of the parties until the cause can be disposed of on its merits. However, if it appears from the face of the complaint that there is no equity in it and no sufficient grounds are disclosed therein why the court should interfere, it is error to grant a temporary injunction. The cases cited by plaintiff in support of his position on this point are those wherein the court considered that the complaint made out a case for equitable relief. The instant appeal is from the order granting the temporary injunction. The fact that in the same order defendants' motion to dismiss the complaint was overruled and that they elected to answer rather than to stand on their motion, would not justify the order for a temporary injunction if the complaint in fact failed to state a case for equitable relief. If the rule were as plaintiff contends, a court could grant a temporary injunction though the complaint stated no ground for equitable relief. A defendant who does not stand on his motion to dismiss may nevertheless contend on an appeal from an interlocutory order that the complaint does not set forth grounds for any relief. We have been unable to find any cases challenging this view. We are of the opinion that on this appeal the defendants may argue that the complaint does not entitle them to any relief in equity. In considering the complaint we accept as true the facts well pleaded but not conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest. Only propositions of law are presented by this appeal.

Defendants insist that the principal of a Community High School District is not employed under the provisions of the Teacher Tenure Law and is not entitled to its protection. Plaintiff states that since the School Code does not have a provision applying specifically to the discharge of a superintendent or principal, the reasonable conclusion is that the legislature intended that the discharge of a superintendent or principal should be covered by the same provisions as those which provide for the discharge of a teacher. The word "teacher" according to sec. 24-2 of the Teacher Tenure Law (par. 24-2, ch. 122, Ill. Rev. Stat. 1949 [Jones Ill. Stats. Ann. 123.1125]) "means any or all school district employees regularly required to be certified under laws relating to the certification of teachers." Plaintiff argues that this definition, considered in connection with other provisions of the Act, covers principals. The law governing teacher certification in Cook county is found in sec. 3-44 of the School Code under powers of the County Superintendent of Schools [Ill. Rev. Stat. 1949, ch. 122, par. 3-44; Jones Ill. Stats. Ann. 123.684] and reads:

"To grant certificates of qualification to teach to such persons as may be qualified to receive them, and to keep a record of all teachers to whom certificates have been granted, and of all teachers employed in his county."

Sec. 24-2 of the School Code provides:

"Any teacher who has been employed in any district as a full-time teacher for a probationary period of two consecutive years shall enter upon contractual continued service unless given written notice of dismissal stating the specific reason therefor, by registered mail by the employing board at least sixty days before the end of such period."

Sec. 21-1 of the School Code [Ill. Rev. Stat. 1949, ch. 122, par. 21-1; Jones Ill. Stats. Ann. 123.1087] provides:

"No one shall teach in the public schools nor receive for teaching any part of any public school fund, who does not hold a certificate of qualification granted by the Superintendent of Public Instruction or by the State Examining Board and a county superintendent of schools as hereinafter provided, or by the board of education of a city having a population exceeding 500,000 inhabitants."

Sec. 7-11 of the School Code [Ill. Rev. Stat. 1949, ch. 122, par. 7-11; Jones Ill. Stats. Ann. 123.841] states one of the powers of the board of education in districts having a population of not fewer than 1,000 and not more than 500,000 as follows:

"To employ a superintendent, and in the case of a high school board a principal, who shall have charge of the administration of the schools under the direction of the board of education. In addition to the administrative duties, the superintendent or the principal shall make recommendations to the board concerning the budget, building plans, the location of sites, the selection of teachers and other employees, the selection of textbooks, instructional material and courses of study. The superintendent or the principal shall assist in keeping the ...

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