217 P. 469 | Okla. | 1923
The plaintiff heretofore commenced his action in the superior court of Creek county, for a writ of mandamus to compel the defendant to certify her disqualification to hear a removal proceeding against the plaintiff for removal as clerk of the school board. The cause came on for hearing on the 24th day of March, 1923, and the writ was by the trial court denied. B.L. Kiefer is clerk of school district No. 59, in Creek county. Hallie Peters is the county superintendent of public instruction within and for Creek county, Okla. It appears from the record that heretofore, and on or about March 10, 1923, the defendant commenced or was in the act of commencing removal proceedings against the plaintiff for alleged wrongful acts committed in his official capacity. The county superintendent was acting under and by virtue of section 10353, Compiled Stats. of 1921. The section in question provides that if any officer, director, clerk, or member of any school board should refuse or neglect without sufficient cause, to qualify within 20 days after his election or appointment, or if he shall after qualifying neglect or refuse to perform the duties of his office as required by the provisions of the statute relating to the conduct of public schools, he shall forfeit his right to the office and the county superintendent of public instruction shall appoint a suitable person in his stead. It is the contention of the plaintiff in this cause that the county superintendent, on account of prejudice and bias against the plaintiff, cannot fairly try and determine the removal proceedings filed before her for the removal of the plaintiff. The plaintiff, proceeding on this supposition, filed his action in the superior court of Creek county to compel the county superintendent to certify her disqualification to hear the removal proceedings. The defendant is an executive officer with her duties defined by statute. There is no provision made by the statute for disqualifying the defendant to hear the cause, nor do we think that the provision of the statute relating to the grounds and procedure for the disqualification of judges applies to executive officers in the performance of their duties as defined by statutes. An executive officer is only disqualified to perform the duties of his office in those cases enumerated by the statutes. The statute has failed to make prejudice and bias a ground for disqualification, as applied to the defendant in trying a removal procedure, and the trial court was not in error in refusing to grant the writ. However, it does not follow that the county superintendent may arbitrarily or wrongfully remove a school officer. If a county superintendent should attempt to remove a school director without sufficient cause, the law will afford ample relief in preventing the order of removal taking effect. We cannot beforehand say that the defendant will improperly or wrongfully exercise her powers in the removal proceedings against the plaintiff. However, as before stated, if the power is wrongfully exercised and the removal ordered without adequate showing, the law will afford ample relief in preventing the order from going into effect.
Therefore we recommend that the judgment be affirmed.
By the Court: It is so ordered. *32
