CHARLESTON.

#### Hassinger *et al. v.*Holt, Judge, *et al.*

Submitted November 2, 1899

Decided December 9, 1899.

l. PROHIBITION— *Writ*— Jurisdiction.

To warrant a court in granting’ a writ of prohibition,' it should clearly appear that the inferior tribunal is actually proceeding, or is about to proceed, in some matter over which it possesses no rightful jurisdiction, (p. 351).

, 2. Board of *Education*— Duties—Ministerial.

The duties of a board of education in the management and control of graded schools which have been established in its district are essentially ministerial, (p. 352).

3 Prohibition— *Writ*— Judicial.

A writ of prohibition only goes against a judicial tribunal 1 and judicial action, and not that which, is merely ministerial. ■ (p. 351).

Application by the board of education of Fairfax district and A. S. Hassinger and others for a writ of prohibition against John H. Holt, judge of the circuit court of Tucker County, and others.

' ’ *Writ Granted.*

Cunningham & Stallings and E. P. Durkin, for petitioners.

Wm. G. Conley and E. D. Talbott, for respondents.

McWhorter, Judge:

This is an application by the board of education of Fair- ■ fax district, Tucker County, and A. S. Hassinger, president of said board, and J. W. Duncan, claiming to be a commissioner and member of said board, for a writ of prohibition against the Honorable John Homer Holt, judge of the circuit court of Tucker County, the circuit court of said county, S. W. Grogan, and I. N. Post, assuming and claiming to be commissioners and members of said board *349of education of Fairfax district, A. E. Michael, J. L. Fort-ney, J. S. Shaver, Alice Deets, and A. M. Dennison. Petitioners allege that they are aggrieved, molested, hindered, and disturbed in their respective duties as a board of education, and president and commissioner thereof, by a vacation order entered by said Holt, judge, on the 9th day of September, 1899, purporting to be a rule in prohibition against petitioners, as well as against H. W. Freeman,' Minnie Chisholm, Pearl Carver, Carrie McKee, and C. C. Moore, which last named are teachers of the graded free school of Thomas, in said Fairfax district, without auihority of law, and without jurisdiction conferred or reposed therein by law; that, if said judge of said court has any such color of authority or jurisdiction that may be conferred by law, he has usurped and abused any such jurisdiction that he may have had or taken in the premises in entering said order of September 9, 1899. A copy of said order is filed with the petition, and a writ is sought to be issued by this Court to prohibit the further prosecution in said circuit court of a proceeding in prohibition against petitioners and the .teachers named. The petition of S. W. Grogan and I. N. Post for writ of prohibition is exhibited with the petition in this case, from which it appears that said I. N. Post caused to be instituted in said circuit court a *quo warranto*proceeding to oust the petitioner J. W. Duncan from the said office of commissioner of said board of education of said Fairfax district, who had been and was acting as such commissioner with said Hassinger, the president of said board, and the object of the prohibition was to prohibit said J. W. Duncan from acting as a member of said board of education until said *quo*warranto, proceeding against him could be heard and determined; that A. S. Hassinger be prohibited from conspiring and confederating with said Duncan to hinder the teachers appointed by petitioners Grogan and Post, as such board, from teaching the Thomas graded free school; that the teacher's named as defendants, appointed by said Hassinger and Duncan, be prohibited from interfering or in any manner molesting the teachers appointed by said Post and Grogan in teaching the said Thomas graded school; and that a rule be issued, returnable at the first day-of the next term of *350said court, against said Duncan and Hassinger and the teachers named. And on the 9th day of September, 1899, said judge entered a vacation order according to the pi-ayer of said petition, which is the rule in prohibition complained of. Petitioners file with their petition for the writ here a certificate of eléction by the board of canvassers of Tucker County, showing the election by a very large majority at the general election, November 1898, of J. W. Duncan to the office of commissioner on said board, which is certainly color of title to the office; and it is not disputed but admitted that Hassinger is the legal president of the board. The title to the office of J. W. Duncan is assailed by the proceeding in *quo warranto:*The question is has the said judge or the circuit court jurisdiction to interfere with the regular proceedings of the board by prohibition? In *Supervisors*v. Wingfield, 27 Gratt. 329, it is said: “It is a principle of universal application and one which lies at the very foundation of the law of prohibition that the jurisdiction is strictly confined to cases where no other remedy exists; and it is always a sufficient reason for withholding the writ, that the party aggrieved has another and complete remedy at law.” It seems to be well settled that “the writ of prohibition will not lie to restrain an inferior court from exercising jurisdiction in a particular case if such court has jurisdiction of cases of that kind.” *Haldeman*v. *Davis,*28 W. Va. 324, in which case Judge Snyder, says: “In order to authorize the writ, the petitioner must clearly show that the inferior tribunal is about to proceed in a matter over which it has no jurisdiction. It will not issue when the facts do not affirmatively make the jurisdiction clear and distinct.” *Moss*v. *Barkam,*94 Va. 12, (26 S. E. 388); *Grigg*v. *Dalsheimer,*88 Va. 508, (13 S. E. 993); *County Court v. Boreman,*34 W. Va. 362, (12 S. E. 490); *Buskirk*v. *Circuit Court Judge,*7 W. Va. 91, where it is held that: “Prohibition can only be interposed in a clear case of excess of jurisdiction on the part of some inferior judicial tribunal. When the matter is clearly within the jurisdiction of the inferior court a mere error in the proceedings may be ground of appeal or review, but not of prohibition.”

There can be no question about the jurisdiction of the *351board of education to establish a graded school, and take charge and control of it, employ teachers, and cause it to be conducted under the provisions of section 26, chapter 45, Code. The real contest in this matter is between the said I. N. Post, who claims to be a properly appointed, qualified member of the board of education, and J. W. Duncan, who claims to be also a member by election by the people, and acting in that capacity, with a *quo warranto*proceeding on the part of Post pending to oust him from the office, and to install the said Post in his stead. The vacation order complained of recites the pendency of the *quo warranto*proceedings, and restrains all the defendants, the said Duncan, Hassinger, and the teachers (naming them), ‘■‘from doing any and all of the things each of them are required to answer why they should not be prohibited from doing, until the further order of the court herein.” The effect of this order is to suspend, as illegal, the board as constituted by its president, Hassinger, and Commissioner Duncan, from the exercise of its functions as a body, and to remove or suspend the teachers in the Thomas graded school, and to legalize temporarily the board.as composed of the two commissoners, Post and Grogan, and the teachers employed by them; virtually deciding the questions involved in the *qua warranto*proceeding on the application for prohibition. It appears from the vacation order itself that the *quo warranto*proceedings were instituted by said Post himself against Duncan, whereby he admits that Duncan had possession of the office, exercising the functions thereof. “To warrant a court in granting this extraordinary remedy, it should clearly appear that the inferior tribunal is actually proceeding, or 'is about to proceed, in some matter over which it possesses no rightful jurisdiction.” High, Extr. Rem. § 780. In *Norfolk and W. R. Co.*v. *Pinnacle Coal Co.,*44 W. Va. 574, (30 S. E. 196), 41 L. R. A. 414, it is said in reference to the writ of prohibition: “It always goes against a judicial tribunal and judicial action, and not that which is merely ministerial A court that usurps jurisdiction only errs, but its error is of such a grievous nature as to call for prompt redress from a supervising tribunal.” The effect of the vacation order complained of is to restrain a board of education and set of *352teachers in charge of Thomas graded school, and replace them with another board of education and another set of teachers, at least for the time being; and the prohibition thus becomes auxiliary to the *quo xvarranto*proceeding. The duties of a board of education in conducting a graded school already established are purely ministerial. The writ should issue.

*Writ Granted.*