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Clinton Common Pleas.

contract by discharging her. The question is: Are they bound to pursue that course? Are they bound to terminate the contract? Or may they apply to a court of equity to restrain her act of insubordination, leaving her to perform her duties as a teacher in accordance with her agreement?

The members of a board of education are public officers, charged with the performance of important public duties. They are bound under the solemn obligations of an oath ''to perform faithfully the duties of the office.” In selecting such officers, the electors of each district are presumed to exercise judgment and discretion, and the members chosen are presumed to understand the local conditions and the interests of the schools committed to their control and to act with intelligence and fairness in the performance of their duties. If such men are not chosen, the fault lies with the electors and the remedy is the ballot.

When a board has passed such a resolution as that involved in this controversy the members are presumed to have acted fairly and to have exercised their best judgment. If their action does not meet public approval, the public has its remedy. While such rules continue in force they must be obeyed. If a teacher may openly defy the lawful rule of the board in such a matter, the legal power to make such rules becomes of no avail and there is an end of official control. Whether the rule adopted in this case was wise or unwise, reasonable or unreasonable, is not a question for the court to determine, and was not a question for the teacher to consider. The power to determine such matters has been by the law committed to the board. To it belongs the power and with it lies the responsibility and not with the teacher. If the rule is pernicious in its effect and obnoxious to the public sentiment of the patrons of this particular school the remedy is obvious and is at hand. It is to be found where are to be found all remedies for bad government-with the people themselves. The remedy is not in counseling, advising or committing an act of insubordination, which is both a defiance of lawful authority, and on the part of the teacher a plain breach of her contract. How far conscience can be appealed to by a teacher to justify a violation of her contract would seem to be a matter about which there could not be two opinions. Miss Pulse was not employed to read the Bible nor

No religious test is required of teachers in the public schools, nor are any religious duties enjoined upon them. An applicant for a teacher's certificate may be a Jew or a Christian, a Protestant or a Catholic, a believer or unbeliever, and if otherwise qualified, and of good moral character, the board of examiners is required by law to issue a certificate. Both Bible reading and prayer are all right and proper, if required or allowed by the custom and rules of the particular school, which a teacher is employed to conduct. But if such practices are not permitted by those who have the lawful right to decide the matter, then upon every principle of moral duty and contract obligation, it is incum

Board of Education v. Pulse.

bent upon those who teach in such schools to observe the lawful rules by which they have agreed to be guided in the performanoe of their duties. Such rules invade no civil or religious right of the teacher. She may still read the Bible, pray, attend church, teach in the Sabath school and put forth every effort in her power to induce others, both young and old, to be religious, and to obtain the joys and rewards of a righteous life. Such a rule closes to her no legitimate avenue of religious effort for the duties of a school teacher are purely secular and her employment for other than religious labors. She may regard the young minds under her control as a suitable soil in which to sow the good seed of religious influence and may believe that the highest and best interests of her pupils are subserved by some religiuus instruction in connection with their daily exercises. But if those in authority think otherwise, it is her plain duty to respect the powers that be and to exercise her influence in this regard on other occasions and along other lines of effort. ' It cannot be conscience, but mistaken zeal or stubborn self-will that dictates any other course. This rule then, while it exists, must be enforced. Any other course on the part of the board would be to abdicate its powers and surrender its authority. If the board should become convinced that the resolution under the circumstances was injudicious and ill advised, it should repeal it. But while the rule continues in force, it is the duty of the board to exact obedience. This proceeding is an effort to that end; and the question is: May it adopt this remedy, or must it pursue the other course open to it and discharge the teacher? Or rather the question is: Is it incumbent on the court to lend its aid by the extraordinary remedy of injunction to enforce obedience to the rule?

There are classes of cases in which, according to well settled rules of equitable jurisprudence, a plaintifi, on the averment of a proper state of facts, is clearly entitled to the remedy of injunction. In such cases the court has no discretion in the matter. The plaintiff can demand the allowance of an injunction as a matter of right.

There are other cases in which, according 10 the same well established rules, a plaintiff is not entitled to the remedy. When such a case is presented, the court has no discretion, but must refuse the writ, and leave the party to pursue such other remedies, legal or equitable, as may be open to him.

But cases often arise which are of a special, novel or peculiar nature, and which do not fall within either of the plainly marked classes of cases just mentioned. They lie upon the border line. They possess peculiar features. They are not easily classified. In such cases the court may or may not grant the remedy by injunction as in the exercise of a sound discretion seems best under all the circumstances. In determining the matter the court must be guided by considerations of public policy and convenience. If upon the whole it appears in such cases the interposition of the court will best subserve the public interest Clinton Common Pleas.

and convenience, the court should grant the writ. If on the other hand, it appears that there is another tribunal, or some official board clothed with power to act in the premises, and whose action may, under the power given, fairly meet the requirements of the case, the court should not interfere.

To which class of cases does the one before the court belong?

It is argued that it falls within the class where the court must refuse the writ. Three reasons are assigned for this position:

First: It is said no irreparable injury can result from the act of the defendant in continuing to disobey the rule.

Second: It is said that this contract could not be specifically enforced by the court, being one for personal services, of no unique or extraordinary character, and that where specific performance cannot be decreed, injunction will not lie.

Third: That the present plaintiff, the board of education, has an adequate remedy at law, and cannot, therefore, ask equitable relief. Let us consider these arguments in their order.

The law confers upon the board of education full and unrestricted power to declare by resolution or rule whether any religious exercises of any character shall or shall not be permitted in the schools under their control. Its action in the matter is not subject to review by the court. It is left to the members of the board to decide whether the necessities of the case require the adoption of a rule, and what that rule shall be. It is for them to determine whether the interests of the school will suffer by the reading of the Bible or other religious exercises, and if they so decided, the court cannot sit in judgment upon their action. Full power to act implies full power to determine when such action is necessary. When the board has acted, and the teacher has defied its lawful authority, the court cannot inquire into the nature or extent of the injury which will result from tolerating such ins'ibordination on the part of the teacher. To do so would be to review the action of the board upon the question of the necessity for the rule. The question of irreparable injury does not enter into the case.

Again: Contracts of this character; that is contracts for personal services, never can be specifically enforced by an affirmative decree. And where the labor to be performed is to be done under the supervision of some person or board, obedience to such supervisory power cannot be enforced by a positive decree. The rule, therefore, that injunction will not be allowed to restrain the breach of a contract, when specific performance will not be decreed, can have no application to contracts for services, because such contracts never can be enforced by a positive decree, and the negative form of injunction may be the only method of enforcing them. But this means of enforcing the contract will not be adopted, except where the services are of unique or extraordinary character and another one than the one employed cannot be procured to

Board of Education v. Pulse.

render the same service. And there is no such unique or extraordinary services involved in this case.

This brings us to the argument that an injunction cannot be allowed in this case for the reason that the plaintiff has an adequate legal remedy, and, therefore, need not invoke the equitable remedy by injunction. Is this true? The word “remedy," as used in this connection, has been properly defined as the judicial means of enforcing a right or redressing a wrong." It is the relief which may be afforded by an action at law. It is the remedy to be found in a court of law. In this sense the board of education in this case has no legal remedy for the insubordinate act of the defendant. It cannot sue her and recover damages, nor is there any other form of legal relief open to them. The right which it has to discharge her for a violation of her agreement to teach under the rules of the board is not a legal remedy, but a right which may be exercised without invoking the aid of any court, either of law or equity.

This case, therefore, does not fall within that class of cases, in which the court is by the settled rules of equity, precluded from granting an injunction, nor does it, on the other hand, come plainly within that class of cases, where an injunction will be decreed. While the right to discharge the defendant for a breach of her contract is not a legal remedy, but a private right, and, therefore, the existence of such right will not preclude the granting of an injunction, yet, the question remains, ought not the board to be required to exercise that right, rather than to appeal to the court for its interposition. This case, theretore, falls within that class of cases, where the granting or refusing of an injunction must rest in the sound discretion of the court to be determined by considerations of public policy and convenience.

The policy of the law is to vest in boards of education large powers in adopting rules and regulations for the government of the schools under their control. There powers in such matters as that now in controversy are unlimited. Their motives are not open to question or investigation by the courts. They are responsible only to their consciences and their constitutents. With such large powers go equally large responsibilities. If the powers are to be exercised with a care and consideration commensurate with their importance, it is best that the members of such boards understand that they must take the full responsibility for the acts they do. It is evident that such duties will be performed with far more deliberation and care if the members understand that they must take the entire responsibility, and that they cannot appeal to the courts to determine whether they have acted wisely or unwisely, or to assume the duty of enforcing any rules they may choose to make.

Again: If teachers understand that they may defy the rule of the board, and submit the matter to the final judgment of a court, it will encourage insubordination and result in just such unseemly contro

Clinton Common Pleas.

versies as that now before the court, from which it is clear no possible good can result, either to the cause of education or religion.

While it may be a serious injury to the school to discharge the defendant now, when she has the school well in hand, and when it may be difficult to supply her place with an efficient teacher, yet if she remains obdurate and prefers to violate her agreement rather than submit to the rule of the board, it is better that the board if the rule remains to exercise its authority and discharge her, rather than that the court should step in and relieve the board from its responsibility on the one hand, or the defendant from the consequences of her ill advised conduct on the other. The court will leave the parties where it finds them, commending wisdom, moderation and common sense to all parties interested. The demurrer is sustained, the injunction dissolved and the petition dismissed.

WILLS-STATUTES-AFTER-BORN CHILDren.

[Hamilton Common Pleas, January Term, 1900.]

GERMAN MUTUAL Ins. Co. v. HARRY W. Lushey, et al.

1. SECTION 5959, REV. STAT., DOES NOT REPEAL SEC. 5961, REV. STAT.

Section 5959, Rev. Stat., providing that if a testator has no children at the time of the execution of his will but shall afterward have a child living or born alive after his death, the will shall be deemed revoked unless provision is made for such child, or such child is in such a way mentioned as to show an intention not to make such provision, does not expressly, or by implication, repeal sec. 5691, Rev. Stat., providing that an absent child, reported dead, or a child born after the execution of and not provided for in the will, shall take the same share of testator's estate that he would have taken had testator died intestate, although the section first referred to was enacted some sixteen years after the section last mentioned. The two sections should be construed separately, as each was enacted to cover a particular case and neither is in conflict with the other.

2. RULE AS TO WILL IN CONFLICT WITH STATUTE.

A will bequeathing testator's estate to her husband and providing that "should any child or children (we have now only one, George Gabriel) be born to me hereafter, it shall in no wise change, alter or revoke this will and testament" is contrary to sec. 5961, Rev. Stat., and while sec. 5959, Rev. Stat., controls as to the child mentioned in the will and he takes nothing, a child born after the execution of the will takes the same share he would have taken had his mother died intestate. The provision of sec. 5959, Rev. Stat., relating to where a party has no children and executes his will and makes plain his intention to disinherit after-born children, cannot be read into sec. 5961, Rev. Stat., or allowed to defeat the claim of such after-born child.

DAVIS, J,

The plaintiff filed its petition setting out that, on September 30, 1892, George Lushey, one of the defendans herein, made and delivered to it a promissory note for $10,000 due one year after date, with six per cent. interest payable semi-annually.

The plaintiff further says that, to secure the payment of said note, George Lushey, one of the defendants, executed and delivered to it a mortgage covering the real estate described in the petition.

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