Munger v. Jeffries.

entry on the journal of the court is not supported by and does not agree with the stenographer's report of the oral opinion delivered by the court in sustaining the motion to remove. A court speaks by its record, and not by its oral or even written opinions, which are not required to be made a matter of record, and have no proper place in a bill of exceptions. This court must look alone to the entry on the journal, as embodying the real findings of the court below upon the motion. Can these findings be reviewed on error in this court, either on the ground that that court erred in admitting evidence upon the hearing, or on the ground that the finding is not sustained by the evidence?

In Gregory's Adm'rs, 19 Ohio, 357, an administrator who resigned filed a final account, which was referred to a special master by the court of common pleas, which then had exclusive juirsdiction in probate and testamentary matters, and the special master filed his report. On motion this report was set aside, the court being of opinion that, as a court of probate, it had not pursued the proper course in settling the account through a master. A writ of certiorari was allowed, but a motion was made to dismiss the writ, and the question was reserved for decision in the Supreme Court. The motion was sustained. The court holding, that as exclusive jurisdiction in probate and testamentary matters was vested in the court of common pleas, the order of that court in the progress of such matters could not be interfered with by the Supreme Court.

It is argued that the reason for this holding was that under writs of certiorari the lower courts could not be required to certify up the evidence on which their findings and orders were predicated; while now, by bills of exceptions, the evidence may be taken from the reviewing court. An examination of the decision, however, makes it plain that it was based upon the exclusive nature of the jurisdiction of the common pleas court, and not upon the manner in which the question came before the reviewing court.

In Gilliland v. Adm'r of Selles, 2 Ohio St., 223, it was held that an order of the probate court in a matter within its exclusive jurisdiction was not the subject of revision in the higher courts.

In Frazer v. Fulcher, 17 Ohio, 260, the Supreme Court on writ of certiorari reversed an order of the common pleas court appointing an administrator for the estate of a person on the ground that he had been imprisoned in the penitentiary under a life sentence. In the opinion, after quoting the provision in the constitution of 1802, conferring jurisdiction in probate and testamentary matters upon the common pleas court, the Supreme Court say: "By the construction which has been given to this clause of the construction, it has been uniformly held, that no appeal could be taken from the court of common pleas, in any matter merely of a probate nature, nor

Warren Common Pleas.

could any such matter be reviewed in this court by writ of error or certiorari." The court, however, held that as the law provided only for administration upon the estates of deceased persons, that case was not brought within the jurisdiction of the court under its probate or testamentary powers.

In Todhunter v. Stewart, 39 Ohio St., 181, it was held that where the probate court, without waiting a reasonable time for the next of kin to apply, appointed a stranger as administrator, the appointment was illegal and that the decision of the common pleas court affirming on error the judgment of the probate court was properly reversed by the district court. This was upon the ground that the probate court, in the exercise of its exclusive jurisdiction in the appointment of administrators, must pursue the statute regulating the manner in which that jurisdiction should be exercised; and that there was no power in the probate court to appoint a stranger as administrator without allowing a reasonable time to the next of kin to make application.

In the case at bar, the order sought to be reversed was plainly and clearly within the jurisdiction of the probate court, under secs. 524 and 6017, Rev. Stat., Munger was acting under the will and letters testamentary granted by that court. An application was made for his removal upon grounds covered by the statute. Due notice was served. There was jurisdiction both of the person and of the subject matter. That jurisdiction is, by the express term of the statute, exclusive. It is not a question of want of power, but of alleged erroneous exercise of power. If the exercise of such power can be reviewed, upon the weight of the evidence, then it is not exclusive. In this sense exclusive jurisdiction means jurisdiction confined to the probate court, and to be by that court possessed, enjoyed and exercised independently.

The statute (sec. 6017) is very broad and comprehensive in its provisions. An examination of the course of legislation on the sublect shows that the legislature has thought it wise to enlarge and extend the power and jurisdiction of the probate court in the matter of removing executors and administrators, until its jurisdiction in such matters has become practically, if not entirely, without limitation. The policy of the law is to secure a speedy settlement of estates. To this end large powers are committed to the probate court in the matter of selecting the person who shall administer such trusts. And so iong as these powers are exercised in the manner and within the limits of the juisdiction conferred, the orders of the court are not subject to review on error.

In Estate of Still, 15 Ohio St., 484, it was held that an appeal would not lie from an order of the probate court removing an administrator; and in Ebenole v. Schiller, 50 Ohio St., 701, it was held that an appeal would not lie from an order of that court refusing to remove an administrator. While these cases are not directly in point, based as

Munger v. Jeffries.

they are upon the language of the statutes regulating appeals from the probate court and the course of legislation relating thereto, yet the very fact that no provision has been made for an appeal in such matters, plainly implies a purpose to leave such questions within the sound discretion of the probate court, and not reviewable on error, except where a manifest abuse of discretion is shown. Goldsmith v. Hand, 26 Ohio St., 101, 108; Clark v. Clark, 20 Ohio St., 128, 135; Beaumont v. Herrick, 24 Ohio St., 445, 458; Legg v. Drake, 1 Ohio St., 286; Oil Company v. The Railroad Company, 4 Circ. Dec., 670. As the motion to dismiss must be sustained, tor the reasons before stated, the court has not found it necessary to look fully into the merits of the case upon the evidence.

The motion to dismiss the petition in error is sustained. In order to place the question and ruling of the court plainly upon the record, let a written motion, embodying the grounds of the oral motion be filed and a judgment sustaining it and dismissing the petition entered, to which exceptions may be noted.

Pat Gaynor, W. C. Thompson, and Ivins & Dechant, for plaintiff in error.

Burr & Brandon, and Runyan & Stanley, for defendants in error.

BOARDS OF EDUCATION-SCHOOLS-BIBLE READING. [Clinton Common Pleas, 1900.]

BOARD OF EDUCATION (NEW ANTIOCH) v. EVA PULSE.

1. MANAGEMent of Public Schools.

The management of public schools is by express statutory provisions under the exclusive control of boards of education. Each board is required to "make such rules and regulations" for the government of the schools under its control as "it may deem expedient and necessary."

2. ACTION OF Board of EDUCATION FINAL.

Where a board of education, in the exercise of this authority conferred upon it by law, has seen fit to pass a resolution prohibiting the reading of the Bible and prayer or other religous instructions in the school, its action is final and cannot be reviewed by the courts.

3. TEACHER AGREES TO FOLLOW ADOpted Rules.

agrees to

A person in accepting employment as a teacher in the public schools perform her labors and duties under the control and direction of the board of education and in conformity to such lawful rules and regulations as the board may adopt.

4. MAY BE DISCHARGED FOR FAILURE TO OBEY RULE.

Where the board has made a rule, prohibiting such religous exercises and a teacher, after due notice, refuses to obey the rule and continues such exercises, such act of insubordination on the part of the teacher is a violation of her contract for which she may be discharged.

2 Vol. 10 S. & C. P.

Clinton Common Pleas.

5. INJUNCTION SHOULD NOT be Allowed.

In such case a court of equity ought not to interfere by injunction to restrain the teacher from continuing the religous exercise in violation of the rule. Considerations of public policy and convenience require that the board should assume the whole responsibility in the matter, and either dismiss the teacher or rescind the rule.

VAN PELT, J.

Section 4017, Rev. Stat., of this state provides that: "each board of education shall have the management and control of the public schools of the district with full power to appoint-teachers," etc.

Section 3985, Rev. Stat., provides that: "The board of each district shall make such rules and regulations as it may deem expedient and necessary for the government of its appointees and pupils.'

The constitution of this state, art. 1, sec. 7, provides that: "All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. No person shall be compelled to attend, erect or support any place of worship, or maintain any form of worship against his consent; and no preference shall be given, by law, to any religious society; nor shall any interference with the rights of conscience be permitted. No religious tests shall be required, as a qualification for office, nor shall any person be incompetent to be a witness on account of his religious beleif; but nothing herein shall be construed to dispense with oaths and affirmations. Religion, morality and knowledge, however, being essential to good government, it shall be the duty of the general assembly to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and means of instruction."

The board of education of Cincinnati, some years ago, passed a resolution probibiting the reading of religious books, including the Bible, in the common schools of that city. The question of the power of the board to pass the resolution came before the Supreme Court of this state in the celebrated case of the Board of Education v. Minor, 23 Ohio St., 211. The Supreme Court in that case sustained the board of education, held the resolution to be valid, and in construing the above constitutional and statutory provisions declared the law as follows:

"First: The constitution of the state does not enjoin or require religious instruction, or the reading of religious books in the public schools.

"Second: The legislature, having placed the management of the public schools under the exclusive control of directors, trustees and boards of education, the courts have no rightful authority to interfere by directing what instruction shall be given, or what books shall be read therein."

The petition in the case now before the court avers that the defendant, Eva Pulse, in August, 1899, entered into a contract with the board

Board of Education v. Pulse.

of education of New Antioch S. S. Dist., whereby she engaged and contracted to teach as a principal teacher in said district, for the term of eight months, and entered upon the performance of her duties under said contract. It is further alleged that on January 2, 1900, said board of education passed a resolution prohibiting religious instruction and the reading of religius books, including the Holy Bible, in the schools of said district, and that on January 3, a copy of said resolution was served on said defendant.

It is also averred that the defendant, "notwithstanding the passage of said resolution, and with full knowledge of the same, refuses to comply with the requirements of said resolution, but wholly ignores the same and denies the right of said board to determine and direct as to the matters set out in said resolution, or to controi her conduct as to the reading of said book called the Holy Bible, or to control her in any form of worship she may see fit to adopt, and in full defiance and disregard of said resolution and notice of the same, opened said school each morning by reading at length portions of said book, called the Holy Bible, followed by prayer," and further that she "threatens to and will continue such reading, praying and other religious teaching, unless restrained by the order of this court," and the prayer of the petition is for an injunction restraining her therefrom.

On the filing of the petition a temporary restraining order was granted, until the matter could be regularly heard on its merits. A demurrer has been filed to the petition. This presents the question whether the board is entitled to injunction to enforce this resolution. By her employment, Miss Pulse agreed to the following:

First: That she would teach the branches of study required by the law and the course of study for her department.

Second: That she would preserve order and enforce proper discipline in her department.

Third: That she would perform her labors and duties under the control of the board of education and in conformity to such lawful rules and regulations as the board might adopt.

This part of her agreement has both an affirmative and negative aspect; that is, she agreed to do such acts and things as she was by positive rule required to do, and that she would not do that which she was required to abstain from doing-to do what she commanded, and not to do that which was inhibited.

By the rule in question, which was one which the board, as the Supreme Court have decided, might lawfully make all teachers in the schools were prohibited from reading the Bible and prayer in the school for the reasons set forth in the resolution. This inhibition she refuses to obey. It is not a case of inefficiency, neglect of duty, immorality or improper conduct. It is an act of active insubordination amounting to a breach of her contract, and gives the board a right to terminate the