The opinion
O’Connor, J., dissenting:
I cannot agree with the conclusion reached by the court for the following reasons:
This appeal presents a narrow question. The only question presented by the appeal is whether or not there are sufficient facts stated in the complaint to support the order for injunction, and we cannot express any opinion as to whether or not the alleged conduct of the plaintiff is sufficient cause for his removal in any proceedings that might follow hereafter.
Ill. Rev. Stat. 1949, ch. 122, sec. 24-3 [Jones Ill. Stats. Ann. 123.1126], provides as follows:
“Notwithstanding the entry upon contractual continued service, any teacher may be removed or dismissed for the reasons or causes provided in Sections 6-36 and 7-13, in the manner hereinafter provided. If the removal or dismissal results from the decision of the Board to decrease the number of teachers employed by the Board or to discontinue some particular type of teaching service, written notice shall be given the teacher by registered mail at least sixty days before the end of the school term, together with a statement of honorable dismissal and the reason therefor, but if the position so discontinued is reinstated within a period of one calendar year it must be tendered to the teacher dismissed because of such discontinuance. If the dismissal or removal is for any other reason or cause it shall not become effective until approved by a majority vote of all members of the Board upon specific charges and after a hearing, if a hearing is requested in writing by the teacher within ten days after the service of notice as herein provided. Written notice of such charges shall be served upon the teacher at least sixty days before the effective date of the dismissal or removal, which date shall be between November First and the date of the close of the school term. ...” (Italics supplied.)
The complaint alleges facts to show that the plaintiff • had entered upon contractual continued service. The complaint reveals that notwithstanding the clear and express provisions of the Statute, no written notice of charges was served upon the plaintiff. The first document that was served upon the plaintiff read as follows,
“You are hereby dismissed . . . .”
The statute provided that the dismissal shall not become effective until after a hearing, if a hearing is requested in writing by the teacher. A hearing was requested by the plaintiff. The document served upon the plaintiff did not purport to be a written notice of charges, but advised him that he was thereby dismissed and advised him that his dismissal had been approved by a majority of the members of the board. He was discharged without being given any notice of the charges against him, and without any opportunity to be heard in his own behalf, contrary to the plain provisions of the statute.
Defendants contend that a court of equity has no jurisdiction to enjoin a board of education from dismissing a teacher. They rely largely on the cases which establish the principle that courts of equity are concerned with property rights and will not interfere in political matters. That is the general rule, but the cases relied upon by defendants can be distinguished from the case at bar.
The complaint alleges that on April 15, 1949, the plaintiff was hired to teach school for the calendar year 1950 for a stipulated sum. This contractual right is as much a property right as a fee simple interest in Black-acre.
In the case of Sheridan v. Colvin, 78 Ill. 237 , suit was brought to enjoin the mayor and others from appointing a new city marshal. The city marshal did not have a contract with the city. The Supreme Court said at page 247,
“The bill does not go upon the theory of any property right, ’ ’ and the matters of that political character do not come within the jurisdiction of a court of equity.
In Heffran v. Hutchins, 160 Ill. 550 , the question involved was the right of a fire chief to his position, and the court in its opinion distinguished property rights from political rights.
In People v. Bose, 211 Ill. 252 , the question involved was as to the right of the chairman and secretary of a county central committee to call a convention of delegates.
In Michels v. McCarty, 196 Ill. App. 493 , the issue was the removal of a police chief.
In all of the above cases purely political questions were involved, and there was no question of property rights, and it was properly held that equity would not take jurisdiction.
Defendants also rely on the case of Chatham v. Davis, 183 Ill. App. 506 . In this case Chatham, the plaintiff, had a contract to teach schools in Effingham for the years 1912-1913. In 1911, he engaged in a street quarrel and a threatened fight with the Mayor of Effingham, disturbing religious services being conducted nearby. On May 11, 1912, he again engaged in a fight with the Mayor of Effingham, took out his pocket knife, and cut the Mayor in several places about the face and body, causing considerable commotion and disturbance in the neighborhood. On June 25,1912, he was advised by the defendant, the superintendent of schools, that his actions had been such that he had lost his usefulness in the Effingham schools, and he was given 20 days to surrender his teacher’s certificate or appear and show cause why the certificate should not be revoked. He, thereupon, filed an action in equity to enjoin the superintendent from revoking his certificate. The defendant filed an answer in which he set up that the plaintiff had been bound over to the grand jury upon a charge of assault to murder, growing out of the fight heretofore referred to. He denied that he was seeking or intended to revoke the certificate without giving the appellee a fair and impartial trial, that he had no bias or prejudice in the matter in any way, that he gave the notice for the purpose of giving plaintiff an opportunity to show why the certificate should not be revoked, that upon a hearing he would decline to revoke it unless the facts and circumstances warranted him so doing. The chancellor issued the injunction, but his decision was reversed by the Appellate Court of the Fourth District.
This case is distinguishable from the case at bar. The Chatham case arose upon a bill and answer. There was no question about following the procedure set down by the legislature as there is here. It must be kept in mind that there has been no issue formed in this case as yet, and that for the present purposes it must be assumed that all facts which are well pleaded in the complaint are true. Assuming this, it appears that defendants here are proceeding in violation of the statute. It also seems clear that plaintiff has a property right and equity will enjoin a threatened act to illegally interfere with his property right. In the Chatham case, the court said at page 511:
“Where the act to be performed by an officer is of a judicial character which necessarily calls for the exercise of judgment and discretion on the part of the officer, the courts will not interfere with such officer in the performance of this duty. ’ ’
No attempt to interfere with the judgment or discretion of the board of education on the question of when an employee should be discharged for the good of the school system should be made by this court, but proceedings to discharge a teacher must be conducted in accordance with the provisions of the statute. There has been no hearing on the merits. There is not here involved a question of opinion as to the weight of the evidence. The question as to the court’s position after the matter has properly reached an issue is not before this court in the present proceeding.
Apparently, in the Chatham case no question was raised as to the contract creating a property right in the plaintiff. The controverted issue seemed to be that the superintendent had no right to revoke the certificate, because the teacher “had lost his usefulness in the Effingham schools,” and the court held that this was not the basis of the actions of the superintendent. The court said on page 514 that
“the determination of whether or not this certificate should be revoked was, under the statute and decisions of our courts, of a judicial character to be determined solely by the County Superintendent of Schools . . . . ”
In this case the court should not interfere with the administration of the school system, nor with the exercise of discretion by the board of education in its dismissal of the plaintiff. If a proper proceedings is instituted by the defendants, and if the statute is followed, and if a hearing is held, and if the board of education, after hearing, determines that there is legal cause for the removal of the plaintiff, we would then be faced with a situation similar to the Chatham case. Needless to state, such is not the situation before us at the present time. In the Chatham case the court stated on page 513,
“The position of counsel that appellant was inspired by improper motives in this matter we do not believe to be well taken, as it clearly appears from his evidence that his desire was to give the appellee a fair and impartial trial and that he would do so if tried before him, . . . .”
In the complaint here it is alleged that the defendants are engaged in a scheme to deprive plaintiff of his legal rights.
Defendants further contend that equity has no jurisdiction because the plaintiff has an adequate remedy at law. The section of the School Code provides for an appeal from the decision of the board and sets up an appeal committee, one of whom shall be a public school teacher, one a school board member, and the third, who shall act as chairman, shall be neither a teacher nor a board member. (Ill. Rev. Stat. ch. 122, sec. 24-4 [Jones Ill. Stats. Ann. 123.1127].) This section further provides as follows :
“If the appeal committee finds from the record and transcript or the record, that the notice of charges by the board to the teacher did not set forth any lawful reason or cause for discharge or that there was no substantial evidence to support any lawful reason or cause for discharge, the appeal committee shall reverse the decision of the board and thereupon give written notice to the board of its decision, whereupon the teacher shall be reinstated. ’ ’
Nothing is said in this statute that the appeal committee shall consider the question before us, and that is whether the board in its proceedings followed the rules laid down by the legislature as to how it should proceed. The appeal committee seems to be restricted to consider whether there was any lawful reason for discharge and whether there was any evidence to support the charge. It is doubtful if the appeals committee could render a decision on the question before us, and it probably never was intended by the legislature that a group of laymen pass on this legal problem.
Defendants cite City of Chicago v. O’Connell, 278 Ill. 591 in support of their position that plaintiff must pursue his statutory remedy before resorting to a court. In that case it was held that the statutory method of reviewing the reasonableness of orders of the Commerce Commission is exclusive. As pointed out before, this is not an action to review the reasonableness of the decision of the board. This is a proceeding to protect the property right of the plaintiff being-taken from him, in violation of a statute wherein the legislature prescribes the procedure to be followed.
Defendants also contend that plaintiff has an adequate remedy-at-hvw, in that he may bring an action of certiorari, to review the proceedings before the board, or mandamus to compel his reinstatement as a teacher. The allegation before us is that the defendants are engaged in a scheme and device to discharge the plaintiff, in violation of his legal rights, and the instrument served upon him before he even had an opportunity to be heard or to appear and present his side of the case stated, “You are hereby dismissed . . . .”
The remedy of certiorari is not adequate. In Kalman v, Walsh, 355 Ill. 341 , it was held that the plaintiff a dentist, had the right to bring an injunction to enjoin the director of the department of education and registration and the committee appointed by him from further proceedings in a certain hearing then pending-before the dental committee to revoke plaintiff’s license. It was held that a court of equity had jurisdiction in a case of this nature. The court stated at page 346:
“Revocation of the license of a professional man to practice his chosen profession carries with it not only disgrace and humiliation but deprives him of his means of earning- a livelihood. It is the death of his professional life, and there is usually no resurrection after such a death. In a proceeding of this nature due process of law requires a definite charge, adequate notice, and a full, fair and impartial hearing. ”
This same reasoning is applicable to this case. The dismissal of the plaintiff in this case would cause bim professional disgrace, and he would lose much more than the salary to which he might be entitled. If he is going to be subjected to such a proceeding, it must be done in accordance with the method prescribed by the legislature.
In Doe v. Jones, 327 Ill. 387 , it was held that equity had jurisdiction in a proceeding to enjoin the board of examiners of land surveyors of Cook county from proceeding with a hearing to revoke the license of the plaintiff. The court said at page 392:
“It is also contended by appellees that equity has no jurisdiction as appellant has a complete remedy at law, either by mandamus or certiorari proceedings. He alleges, however, in his bill that the board of land surveyors is about to proceed with a hearing against him, which it has no authority to hold if the Surveyors Act is unconstitutional. He is therefore properly in a court of equity seeking to enjoin the board from proceeding with an illegal act to his detriment. ’ ’
In Ramsay v. Shelton, 329 Ill. 432 , it was held that equity had jurisdiction of a bill to enjoin a proceedings to revoke a license of the plaintiff, a physician. The court said at page 444:
“Appellees question the jurisdiction of a court of equity in this case. The prayer of the bill is that the so-called committee be restrained from holding further hearings as to the matters involved and the charges against appellant; that by reason of the character of the charges and the attitude of the committee appellant will suffer irreparable injury. The allegations of the bill raise issues proper to be considered by a court of equity. ’ ’
The allegations of the complaint'in this case are to the effect that the alleged illegal and wrongful threatening acts of the board will subject the plaintiff to the loss of rights and benefits to which he otherwise would become entitled under the Teachers’ Retirement System of the State of Illinois, and will result in great and irreparable damage and injury to the plaintiff.
Therefore the defendants were properly enjoined from conducting any hearings under the notice of dismissal of the plaintiff of June 7,1949, from denying the plaintiff the salary and the performance on his part of his contract of employment with said board under the terms of the memorandum of terms of employment heretofore furnished him by said board in the month of April 1949, and from doing any act which will interfere with the status of the contractual rights of the plaintiff, Ernest W. Eveland, with said board, before any purported dismissal of the plaintiff, until further notice.
The plaintiff’s contract provides that he is to “teach, govern and conduct to the best of his ability the class or classes of the schools of said district to which he shall be assigned. ’ ’ He has no right to teach any other subject than that assigned to him by the Board of Education.
Defendants have no right to go ahead with the present proceeding because the statute has not been followed.
However, the injunction as originally issued was too broad, and the following part thereof should be stricken, “and from spending public school funds at their disposal for the hiring of any other person to perform the services which it is alleged in said sworn complaint of the plaintiff in this case that said plaintiff, Ernest W. Eveland, is under contract to perform.” This is interfering with the operation of the school system, and this, a court of equity has no power to do.
Therefore, this cánse should be remanded with directions to modify said injunction order by striking therefrom the following: ‘ ‘ and from spending public school funds at their disposal for the hiring of any other person to perform the services which it is alleged in said sworn complaint of the plaintiff in this case that said plaintiff, Ernest W. Eveland, is under contract to perform. ’ ’
The remainder of said injunction order should be affirmed.