Interlocutory appeal from the Circuit Court of Edgar county;
the Hon. CHARLES D. HENRY, Judge, presiding. Heard in this court
at the February term, 1950. Reversed and remanded with
directions. Opinion filed March 18, 1950. Opinion modified and
rehearing denied May 2, 1950. Released for publication May 2,
MR. JUSTICE DADY DELIVERED THE OPINION OF THE COURT.
Opinion modified and rehearing denied May 2, 1950
On July 8, 1949, a complaint was filed in the circuit court of Edgar county by appellee, Ernest W. Eveland, individually, and by appellees Charles P. Brown and Alan Jay Parrish, as taxpayers, on behalf of themselves and all others similarly situated, against defendants appellants, the Board of Education of the Paris Union School District, the members and officers thereof, and the superintendent of schools.
Count 1 thereof was by Eveland, and Count 2 was by the two taxpayers.
On July 9 such court, without notice to appellants and without requiring bond, ordered the temporary injunction hereafter referred to.
On August 4 such court entered an order denying a motion of appellants to vacate such injunction. Appellants thereupon brought this appeal from the order of July 9.
Count 1 of the complaint alleged that for about 14 years immediately prior to filing the complaint Eveland had been continuously employed by the Board as a teacher of physical education and interscholastic basketball director in and for such high school, that on April 15, 1949, a contract was entered into whereby Eveland was hired by the Board for the year ending "1950," which provided, among other things, that Eveland was "to teach, govern and conduct to the best of his ability the class or classes of the schools of such district to which he shall be assigned," for a stipulated salary, and provided, that in case he "should be dismissed . . . by the board . . . for incompetency, cruelty, negligence, . . . he should not be entitled to compensation after such dismissal . . .," and that on June 7 the Board, and a majority of the members thereof, sent to Eveland by registered mail a letter dated June 7, signed by the Board by the president and secretary and superintendent thereof, which, so far as is material, stated:
"We are directed by the Board . . . to notify you that you are hereby dismissed as a teacher in the high school . . ., such dismissal to be effective November 2, 1949. The Board has taken this action for the following reasons:"
"1. You have failed to organize and conduct a program of physical education covering twelve activities for a minimum of twelve clock hours each, as required by the University of Illinois for acceptance of credits in courses of physical education for admission to the University of Illinois."
"2. You have failed to comply with the requirements of this Board of Education that you organize and conduct a diversified program of physical education and, in particular, you have failed to comply with the instructions so given to you by The Board of Education of Paris Union School District #95 on May 11, 1948."
"6. You have frequently used loud and profane language in public while in charge of teams representing this school district in interscholastic athletic competitions."
"7. You have caused the high school of this district to be put on probation by the E.I. League."
"8. You have caused the high school of this district to be put on probation by the North Central Association of Colleges and Secondary Schools."
"9. You have caused the high school of this district to be censured by the Illinois High School Association."
"10. Your conduct on the athletic field in interscholastic competition toward officials, your indulgence in profanity, and your toleration of profanity on the part of the students, have brought the high school of this district into bad repute among the schools with which it competes and have caused schools to discontinue athletic relations with this high school, and others to threaten to do so."
"11. You have frequently used profane and vulgar language in the presence of students of the high school of this district."
"12. On April 21, 1949, you struck James Stephens, a student of the high school in this district, and used vulgar and profane language toward him."
"13. In a second hour physical education class in the fall of 1948 you used vulgar and profane language toward William Welch, a student of this high school, and threatened him with physical violence."
"14. When questioned by the Board of Education concerning the incidents of vulgar and profane language herein before specified, you falsely denied the use of such language."
The letter concluded with this statement:
"All these matters have been repeatedly called to your attention without effect. Your refusal to comply with school policies amounts to insubordination. The Board does not believe that you are competent to conduct the type of physical education program which we wish to offer to the students in this community. It is the opinion of the Board . . . that the interest of the high school require that you be removed as a teacher for the reasons given. Your dismissal has been approved at a special meeting of the Board . . . by a majority vote of all of the members of the Board."
Count 1 then alleged that within ten days after June 7, Eveland wrote a letter to the Board, acknowledging receipt of such letter of June 7, in which he stated that:
"Without waiving any of my rights as to the legality of your present action . . . and without waiving any of my rights under the notice of employment for the coming school year, . . . I do hereby respectfully request a hearing on the charges mentioned in your letter of June 7, 1949, and I do hereby request that such hearing be public."
Such letter requested that all of the 14 charges, except No. 12, be made more specific. As to No. 12 the letter stated:
"This is a specific charge and I shall at the proper time and place be prepared to meet the same."
Count 1 then alleged that all of the charges or reasons contained in the letter of June 7 were unfounded and untrue, that the alleged illegal and wrongful acts and threatened acts of the Board "subjects or threatens to subject this plaintiff to the loss of rights and benefits to which he would be or become entitled to" under the provisions of the Teachers' Retirement System, "and will result in great and irreparable damage and injury to plaintiff and for which plaintiff has no relief, except in a court of equity," that defendants are "threatening to hire or employ another interscholastic basketball director and physical education teacher in the place and stead of this plaintiff at great and substantial expense and in duplication of the services and duties which plaintiff is now under contract with said Board to do and perform," that at the date of a meeting of the Board on April 1, 1949, there was known to the Board and all members thereof all of the supposed reasons or grounds stated in the letter of June 7, with the exception of reason No. 12, and that with full knowledge of the supposed existence of said purported grounds or causes for removal or discharge of plaintiff, the Board took "the necessary action as above set forth to retain" Eveland in his employment.
Count 2 adopted the allegations of count 1, and then alleged that such two taxpayers were informed and believed and stated that the Board had refused Eveland admission to the school gymnasium and locker room, that the Board threatened and intended to employ a full time teacher and interscholastic basketball director to replace Eveland, and was interviewing applicants for such position, that the Board on July 7, without right of authority, set for hearing on July 20, 1949, the alleged charges against Eveland, and had employed or threatened to employ counsel to represent the Board at such hearing, "all of which will result in illegal diversion of the funds and moneys" of the district, and in an increase of taxation. Count 2 then asked the same relief as prayed in Count 1.
Each count asked for the issuance of an injunction.
The order granting the temporary injunction enjoined the appellants from conducting any hearing under the notice of dismissal of June 7, from denying Eveland the salary and performance on his part of his said contract of employment, from spending public school funds for the hiring of any other person to perform the services "which it is alleged in said sworn complaint of the plaintiff . . . that Eveland is under contract to perform," . . . and from "doing any act which will interfere with the status of the contractual rights of" Eveland with said Board, until the further order of the court.
Under section 6-36 of the School Code (ch. 122, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 123.610 et seq.]) the board of school directors has the power "to dismiss a teacher for incompetency, cruelty, negligence, immorality or other sufficient cause."
Section 7-6 provides that the board of education "has all the duties and powers of school directors" as ...