#### Ludwig, Appellant, *v.*Board of Education of City School District of City of Cincinnati et al., Appellees.

(No. 6247 —

Decided May 17, 1943.)

*Messrs. Fieman, Fry, Schulze & Dreidame,*for appellant.

*Mr. John D. Ellis,*city solicitor, and *Mr. Edgar B. Traver,*for appellees.

Matthews, J.

This is an appeal from a judgment of the Court of Common Pleas, for the defendants, the Board of Education of the City School District of the city of Cincinnati and the members thereof. The action in the Common Pleas Court was an appeal under Section 7690-6, General Code (119 Ohio Laws, 454), from an order terminating the plaintiff’s contract as a teacher in the public schools of the district.

The plaintiff had been employed as a teacher for about six years and, on January 16, 1942, held a continuing teacher’s contract as was authorized by Section 7690-1, G-eneral Code (119 Ohio Laws, 452). On May 29, 1942, he was notified by the board that the superintendent of schools had recommended the termina*438tion of his continuing contract and that, pursuant to such recommendation, the following charge was made against him by the board:

“That you have persistently demonstrated an inability and incapacity correctly to interpret and safely to assume the responsibility and authority that properly belongs to a teacher, in association with an [sic] disciplinary control over school pupils. As a •specific example, witness: ‘That on January 16, 1942, you permitted two non-school adults (two enlisted men of the United States Army) to assist you, and to an appreciable degree, to take over the punishment of two pupils of Bloom Junior High School, to the definite physical injury of both, such that one (Thomas Johnson, Jr.) required the services of a physician and the other (Robert Copeland), the services of a dentist.’ ”

Thereafter, a protracted hearing was conducted at the request of the plaintiff, at which he was represented by counsel, and the board by the city solicitor. At the conclusion of the hearing, the board found the evidence established that the plaintiff aided and abetted the attack by the soldiers on the pupils; that he should, have known that it was not permitted to others than teachers to administer corporal punishment to students in the school; that serious or even mortal injury might have resulted to the students; that he knew that the principal of the school possessed the authority to exclude recalcitrant students; that such authority could have been invoked in this case; and that his conduct constituted gross lack of judgment, a temperamental unfitness to exercise jurisdiction as a teacher over children of school age, and good and just cause for terminating his contract. The board, thereupon, declared the contract terminated.

This action was then filed by the plaintiff. At the trial in the Common Pleas Court a transcript of the *439original papers and evidence certified by the board was introduced in evidence, and the plaintiff accorded the right to introduce further evidence. Thereupon, the plaintiff offered the director of elementary schools as a witness who testified to an investigation made by him of the school shortly after the incident which prompted the charge against the plaintiff. The director testified that he had placed the results of his investigation in a report to the board.

Neither the testimony of the witnesses nor the report shed any light on the charge against the plaintiff, unless it be in the fact that the report shows that, because of the absence of a well-understood, unified code of discipline enforced by the whole-hearted co-operative effort of the entire staff of teachers, the discipline was lax and the standard of deportment low, and that the plaintiff was endeavoring to correct that condition.

The end in view may have been laudable, but could not justify unlawful means. We believe, therefore, that we are justified in saying that the Common Pleas Court based its decision against the plaintiff on substantially the same evidence upon which the board had based its decision. Of course, the Common Pleas Court did not have the benefit of observing the witnesses in giving their testimony, as did the board.

On appeal to this court, the principal contention is that the plaintiff was denied a trial *de novo*in the Common Pleas Court to which, it is urged, he was entitled under Section 7690-6, General Code (119 Ohio Laws, 454), by which it was provided that:

“Any teacher affected by an order of termination of contract shall have the right of appeal to the Court of Common Pleas of the county in which the school is located within thirty days after receipt of notice of the entry of such order. Such appeal shall be. an original action in said Common Pleas Court and shall be com*440menced by the filing of a petition against sucb board of education, in which petition the facts shall be alleged upon which the teacher relies for a reversal or modification of such order of termination of contract. Upon service, or waiver of summons in said appeal, such board of education shall forthwith transmit to the clerk of said Common Pleas Court for filing a transcript of the original papers theretofore filed with said board and a certified transcript of all evidence adduced at the hearing or hearings before such board, whereupon the cause shall be at issue without further pleading and shall be advanced and heard without delay. The Common Pleas Court shall examine the transcript and record of the hearing before the board of education and shall hold such additional hearings' as it may deem advisable, at which it may consider other evidence in addition to such transcript and record.

“Upon final hearing, the Common Pleas Court shall grant or deny the relief prayed for in the petition as may be proper under the provisions of this act and in accordance with the evidence adduced in the hearing. Such an action shall be deemed to be a special proceeding within the purview of Section 12223-2 of the General Code and either the teacher or the board of education may appeal therefrom.”

The judgment finds generally for the defendants, but it is said that the opinion of the court, incorporated in the bill of exceptions, shows that the court took too narrow a view of the power and duty of the court. In that opinion, the court said:

“The court is of the opinion the Legislature did not intend that the Common Pleas Court be substituted for the board of education, but rather sought to place around the teacher’s enjoying the privilege of continuing contract, the right to have reviewed the action of the board. * * * The court is of the opinion that *441the purpose of this statute was to give to the teacher enjoying a continuing contract with the board of education protection against termination of his contract by caprice or as a result of any other emotion that sometimes actuates men, unsupported by facts.”

Viewed in the light of the issues in this case, does this language show that the court gave the plaintiff a review of the facts narrower than that provided by the law? We do not think so.

It is true that the relation between the plaintiff and the board of education was contractual, the obligation of which was protected against impairment by any state law by Section 10, Article I of the Constitution of the United States and by the due process provision of the Fourteenth Amendment thereof. *Indiana, ex rel. Anderson,*v. *Brand, Trustee,*303 U. S., 95, 82 L. Ed., 685, 58 S. Ct., 443; *Phelps*v. *Board of Education of West New York,*300 U. S., 319, 81 L. Ed., 674, 57 S. Ct., 483; 12 American Jurisprudence, 30, Section 399.

But the plaintiff’s right to continuous employment was not unconditional. The statute (Section 7690-6, General Code) which is a part of the contract provides that the board may terminate the contract “for gross inefficiency or immorality; for wilful and persistent violations of reasonable regulations of the board of education; or for other good and just cause.”

And one of the terms of the contract was that the initial determination of whether a statutory cause existed for its termination, should be made by the board after a plenary hearing of which the teacher should be given notice and full opportunity to defend. If the conclusion of the board was to have no weight, why this provision for such a hearing? If it was to have no greater effect than the *ex parte*rescission of a private contract by one of the contracting parties, it would seem that notice and opportunity to defend would be in vain. *442And if the trial in the Common Pleas Court was to have none of the attributes of a review, why the requirement that the transcript of the record and evidence be certified by the board and filed in the court?

The fact is that we are dealing here not with a private contract, but with a public contract. One of the parties wields the power of the state in the field of education, and the contract was made with the knowledge of that fact and that the contractual relation should not and could not restrict the board in the proper exercise of its governmental power and duty. The plaintiff knew that he was contracting with a governmental agency exercising power which it could not barter away. 12 American Jurisprudence, 54, Section 421. It was in recognition of this fact that the provision for termination of the contract under given conditions was incorporated into the contract. And in passing upon the existence of the conditions, the board acted in a governmental capacity, as an agency of the administrative branch of the government, and not in a judicial capacity, or as one of - the contracting parties. Its decision had the same legal effect as though it related to a matter concerning which it had not contracted, but as to which it had been given authority to render an administrative decision. Tinder the Constitution its decision could not be made final and conclusive. ■ Some judicial control of such decisions is required to exclude arbitrary action, but, beyond that minimum, the extent of judical review is dependent upon legislative action conferring power upon the courts and the constitutional capacity of the courts to receive it.

In Stanton, *Pros. Atty.,*v. *Tax*Commission, 114 Ohio St., 658, at 680, 151 N. E., 760, it was stated that:

“If the proceeding involves a ministerial, executive, or political function, no legislative fiat can make it a *443matter of judicial cognizance, unless the agencies charged with performance of the function proceed in an unlawful manner. ’ ’

It is in the light of this incapacity to receive the power that the terms of the law must be construed. And so construed it is clear that the Legislature did not intend to confer upon the court the power to exercise original administrative jurisdiction to determine whether a teacher’s conduct.had been such as to furnish “good and just cause” for terminating his eontract'in order to promote the welfare of the schools. Without elaborating further, we refer to *Linch*v. *Heuck, Aud.,*58 Ohio App., 406, 16 N. E. (2d), 613; *Provident Savings Bank & Trust Co.*v. *Tax Commission,*26 Ohio Law Abs., 175; and *Kearns*v. *Sherrill, City Mgr.,*63 Ohio App., 533, 27 N. E. (2d), 407, as eases in which the judges of this court have stated their conclusions as to the limits of the power of the constitutional courts to accept jurisdiction to review the action of administrative agencies.

Counsel cite and rely somewhat upon *Jones*v. *Board of Barber Examiners,*140 Ohio St., 343, 44 N. E. (2d), 358, as having a similarity to the case at bar. The statute there considered (Section 1081-18, G-eneral Code) provided for an original action to set aside the action of the Board of Barber Examiners on the ground that it was “unreasonable or unlawful.” The Common Pleas Court held that the action was an appeal on questions of law only and refused to hear any evidence other than that which had been before the board, and affirmed the action of the board. This was reversed by the Court of Appeals and its judgment was affirmed by the Supreme Court. The Supreme Court said:

“We, therefore, hold that Section 1081-18, General Code, authorizes the bringing of an original action wherein the trial court is required to hear and take *444into consideration any competent, material evidence proffered by the parties on such hearing.”

The court did not have' before it and did not decide the question of the extent of the power to determine or the purpose for which evidence could be introduced. Indeed, in the statute considered in that case, the extent of the power of the court was clearly stated. The court was authorized to disturb the action of the Board of Barber Examiners only upon a finding that it was “unreasonable or unlawful.”

In the case at bar the plaintiff was accorded the right which the plaintiff was denied in the *Jones case, % e.,*the right to introduce additional evidence. The statute in that case states the scope of the issue before the court substantially as stated by the trial court in this case.

We find no error in the record and the judgment is affirmed.

*Judgment affirmed.*

Ross, P. J., and Hildebrant, J., concur.