On Application for Rehearing. In the relatrix' petition for a rehearing, complaint is made as to the application of the law by the Court and its finding of facts in this case. It is said that the majority *Page 358 opinion casts aside and disregards that portion of the Teachers' Tenure Law, Act 58 of 1936, amending and re-enacting Section 48 of Act 100 of 1922, wherein it is stated "* * * it is not the intent of this act to impair the right of appeal to the court of appropriate jurisdiction." If the Legislature had attempted to make the ruling of the School Board final by placing a provision in the statute to that effect that part of the Act would be unconstitutional because the Constitution guarantees to every person claiming to have been illegally injured, the right to seek redress in the courts.
Section 6 of Article I of the Constitution (Bill of Rights) provides: "All courts shall be open, and every person for injury done him in his rights, lands, goods, person or reputation shall have adequate remedy by due process of law and justice administered without denial, partiality or unreasonable delay."
In Meyer v. Board of Trustees, etc., 199 La. 633, 6 So.2d 713, 717, the court said:
"The jurisprudence is clear that where a Board has original power to determine matters submitted to it under a statute that, after it has acted, the legal correctness of its action may be attacked in court by a party claiming an adverse legal right. State ex rel. Reynolds Henry Construction Co. v. O'Kelly, 48 La.Ann. 28, 33, 18 So. 757; State v. Elfer, 115 La. 964, 40 So. 370."
It is, therefore, obvious that even if the above quoted provisions were not in *Page 359 the statute, the party claiming an adverse legal right may resort to court for redress. For instance, in the case of Cook et al. v. Caddo Parish School Board et al., (No. 37,394 of the docket of this Court, wherein writs of certiorari, prohibition and mandamus were refused by us on the ground that the judgment was correct), there was no specific provision in the School Board Law (Act 100 of 1922, as amended) granting to the plaintiffs the right to appeal to a court of appropriate jurisdiction, yet the complainants, exercising their constitutional rights, did appeal or resort to the courts and had their case considered. There the School Board, after an informal public hearing, by vote of ten of its seventeen members, passed a resolution making students in the High School ineligible to participate in activities for extra-curricular honors and recognition if they were members of Greek letter fraternities and sororities, which had no connection whatsoever with the public schools. The reasons assigned by the Board for its action were that membership in these fraternities had a tendency to make the students undemocratic, snobbish and clannish and interfered with the proper maintenance of school interest and scholastic attainments. The members of these fraternities and their parents vigorously protested against the Board's resolution and sought relief in the courts on the ground that the School Board's action went beyond the power and authority granted to it by the statute and was an illegal and unconstitutional deprivation of the rights of these students and parents in *Page 360 matters outside of public school functions. The trial judge granted a rule to show cause why a preliminary injunction should not be issued against the School Board. After a hearing he refused to issue an injunction for the reasons that the School Board had acted in good faith after a hearing upon substantial evidence and that the court would not substitute its judgment for that of the administrative and executive board performing statutory duties. The judge said:
"There is nothing more firmly established in law than the principle that, within the limits of their authority, the power and discretion of legally created governing boards is supreme. Their wisdom or good judgment cannot be questioned by the courts. Members of these boards are appointed or elected because of their peculiar fitness for the post. Judges are elected because of their legal knowledge and ability. They are not experienced in the business affairs of Parishes and municipalities, * * * or the conduct of a public school system. A presumption of legality and regularity attaches to the action of all government boards. It is only when it is clearly shown that the action of such a board is beyond its authority or is arbitrary, unreasonable, or fraudulent that a court is justified in interfering."
In short, the court concluded that there was no invasion or deprivation of any legal right of the complainants and that the Board had acted within the scope of its power. *Page 361
In the case of State ex rel. Bourgeois v. Board of Supervisors of Louisiana State University Agricultural Mechanical College et al., 205 La. 177, 17 So.2d 25, 29, the Board created and entrusted with certain powers and duties by the statute discharged a professor (a married man and the father of nine children) who took a coed in his car for a ride in the afternoon and parked it along the public highway, in plain view, where the young lady, a friend of the professor's wife, rested her head in his lap. He instituted mandamus proceedings to be reinstated. It was also contended, in the alternative, that removal was too severe and harsh and that suspension would have been adequate. The trial judge refused to interfere as the Board had acted upon substantial evidence, although no wrongdoing was shown. He refused to substitute his judgment for the Board's and dismissed the suit because the statutory created Board entrusted with certain administrative and executive functions had acted in good faith for what it considered was the best interest of the university. The relator appealed to this Court. In upholding the correctness of the judgment of the district court, we said:
"The trial court arrived at the conclusion that the acts of the relator were of sufficient gravity to warrant his discharge as shown by its written reasons. It is unnecessary for the purpose of this decision for us to go into a detailed analysis of the facts. The relator was given the hearing provided for in the tenure regulations and discharged. *Page 362
"The faculty committee, after a hearing, arrived at the conclusion that the acts of the relator were of sufficient gravity that he should be discharged. The president, acting upon the recommendations of this committee, discharged the relator, and his action was ratified by the board of supervisors.
"We have no right to substitute our judgment for that of the authorities of the University, especially since there is no contention that the authorities of the University discriminated arbitrarily against the relator or acted in a capricious manner. Whether the University's judgment was exercised wisely or unwisely is not for us to decide. State ex rel. Cotonio v. Louisiana Bar Association, 111 La. 967, 36 So. 50; State ex rel. Thoman v. State Board of Certified Public Accountants,172 La. 261, 262, 134 So. 85; Walsh v. New Orleans Cotton Exchange,188 La. 338, 177 So. 68; also see, Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95."
It will be noted that the first cited case deals expressly with the public school system of education and Act 100 of 1922, as amended, under which the State Board of Education and the Parish School Boards function. It will be further observed that the second case also involved the operation of a State College, which is a part of the public school system of education of Louisiana. It is indisputable that the jurisprudence of this State is settled beyond doubt that where a statute creates a Board and grants to it certain administrative and executive functions and *Page 363 responsibilities, the courts will not interfere with the bona fide judgment of the Board based upon substantial evidence. It is only where the complainant shows there has been an invasion of his rights by the Board exceeding its powers or doing him an injustice that the courts have set aside the actions of the Board. This judicial pronouncement is either sound or unsound. No one in this case has challenged the correctness of the decisions to that effect. The complaint is that they are inapplicable here. This statement is inconsistent with the rulings of this Court in the two above cited cases where the doctrine was applied. It is immaterial whether the case comes to this Court by appeal or writs under its supervisory jurisdiction because the litigant is entitled under the Constitution to have his asserted rights determined. The correctness of this statement is borne out by the fact that the Cook case, supra, was brought here and considered by us under our supervisory power and the Bourgeois case, supra, and the present one came here on appeal and in each instance the rights of the parties presented were determined by the same rule of law.
It cannot be seriously stated that this Court has cast aside and disregarded the portion of the Teachers' Tenure law which gives the complaining teacher the right to appeal to the court from the action of the Board. In the instant case, the relatrix did appeal to the court from the adverse ruling of the Board and while the district judge was of the opinion there was not "a scintilla of evidence" to uphold the *Page 364 Board's resolution, the majority members of this Court found otherwise.
The relatrix admits that Miss Tracey, the Third Grade teacher, assisted her in making up the principal's monthly reports and the principal's session report required by the statute and the regulations of the State Board of Education to be filed with the School Board. Miss Tracey testified that she was instructed by the relatrix to cut down the absences and that although she informed the relatrix that the reports were erroneous and called her attention to discrepancies, the relatrix persisted in having the reports made out as she directed. Miss Walker, the Kindergarten teacher, testified that she was also instructed by the principal to cut down on the absences.
The six teachers who testified against the principal and the one who testified in her behalf all stated that they properly kept the daily school register of absences and attendances of the children in their respective classes and at the end of the month accurately reported the total days of attendances and absences of all of the children in their classes. None of these teachers had any interest in misrepresenting their respective reports to the principal. The daily school register of each teacher including the relatrix, who taught the Sixth Grade, and the principal's nine monthly reports and the principal's session report, all made at a time unsuspicious, corroborated Misses Tracey's and Walker's testimony that they were instructed by the principal to cut down absences. The principal's monthly reports and the principal's session report on absences is identical. A tabulation *Page 365 and comparison of the principal's nine monthly reports and the session report (September 9, 1940, through June 4, 1941), with the teachers' daily register of absences, is as follows:
Principal's 9 monthly reports and session Grade: Report: Teachers' Register: Difference: Kindergarten 342 342 (These figures accepted — as accurate although daily register was not kept by Kindergarten teacher, on principal's instructions.) First 298 620 322 Second 70 78 8 Third 170 376 206 Fourth 439 568 129 Fifth 214 286 1/2 72 1/2 Sixth 115 307 192 Seventh 308 357 49
Totals 1956 2934 1/2 978 1/2
The principal's nine monthly reports show:
Dates of Total absences reports: for month: Oct. 1940 53 Nov. 1940 75 Dec. 1940 151 Jan. 1941 408 Feb. 1941 328 Mar. 1941 321 Apr. 1941 227 May 1941 203 June 1941 190
Total absences for session September 9, 1940 through June 4, 1941. . . . 1956
The relatrix in her testimony sought to explain these errors on the ground that *Page 366 Miss Tracey became hostile to and angry with her and, therefore, made misstatements in the reports. She admits that during the first two months of the school session there was understanding between the teachers and herself and they co-operated with her and it was only thereafter that all of the teachers except one became unfriendly towards her. The record clearly shows that the principal's nine monthly reports and the principal's session report were each erroneous in reporting the absences. As the relatrix admits that she was on friendly terms with Misses Tracey and Walker during the first two months of the school session there certainly could not be any reason why those two principal's monthly reports were incorrect except the explanation of those two witnesses that they were instructed to cut down absences.
The only countervailing proof offered by the relatrix was her own testimony denying *Page 367 that she had given any instructions to these two teachers to cut down the absences. Clearly, the testimony of Misses Tracey and Walker that they were instructed by the principal to cut down absences is conclusively supported by the daily school register of each of the teachers including the relatrix and her nine principal's monthly reports and her principal's session report. The charge of wilful neglect of duty to keep the proper records required by the State Board of Education's regulations and the provisions of Act 100 of 1922 were not only proven by an overwhelming preponderance of the evidence but were established beyond doubt.
We recognize that "Fits of inadvertence seize the most vigilant" and "To err is human" and that allowances should be made for fallibilities. However, where there is a systematic reduction of the absences shown on the daily school register by reporting a great many less — that is, 978 1/2 — on the nine consecutive monthly reports and the session report, it must be concluded that this is not an oversight and inadvertence but the result of wilful neglect to keep proper and accurate records.
There are other errors in the principal's session report and the principal's monthly report. For instance, although Miss Walker, the Kindergarten teacher, was instructed by the principal not to keep records of the daily attendances and absences of the children in her class, nevertheless, the principal's session report shows "aggregate days of attendance" 3357 and the principal's *Page 368 nine monthly reports show "aggregate days of attendance" 3030, or a difference of 327.
The principal in her daily register of the Sixth Grade class shows 16 promoted, 6 conditioned, and 2 failed. In her principal's session report to the Board, she shows 16 promoted, 9 conditioned, and 4 failed. In her daily register, she shows Florence Haydel as having been dropped on account of illness but promoted on condition, yet this girl is reported to be absent only one day out of 180 school days of the full school term and never tardy.
We could cite additional similar errors — all tending to show either wilful neglect of duty or incompetency to keep proper and accurate records.
It must be remembered that at the time the daily school register of the Sixth Grade was made by the relatrix in her own handwriting and her nine monthly principal's reports and the principal's session report were made, she was in complete charge and custody of all of these records, and she admits that she was instructed that it was her duty as principal to make the reports.
The charges of incompetency as principal to secure and maintain harmonious and efficient co-ordinated efforts of parents and teachers were also established by the great preponderance of the evidence. Even the parent and teacher who testified in behalf of the relatrix and she herself admitted that there was contention, dissension, and strife between the parents and teachers and the principal. *Page 369
Act 58 of 1936, which amends Section 48 of Act 100 of 1922, does not in any way indicate that it was the intention of the Legislature to subordinate the School Board to the teachers. It expressly grants the Board the right to remove or discharge a teacher for statutory cause and places the members of the School Board in a quasi judicial position to hear and determine the correctness or incorrectness of the charges made against teachers. When the Board was confronted with the general chaotic condition in the school due solely and only to differences between the principal and the parents and teachers and it was shown that the principal's reports were uniformly incorrect in reporting absences, the Board was compelled to act in discharging its statutory duty and responsibility to the pupils of the school and the public school system of the Parish.
It is easy to visualize what would happen if the principal were retained under the facts and circumstances of the case. No one could reasonably expect this school to be properly operated. The evidence shows that the school subsequently functioned efficiently with a new principal and there was not any dissension. The School Board, in good faith, upon serious, substantial and convincing evidence, which overwhelmingly preponderates in proof of the charges, legally exercised its judgment for what it considered the best interest of the school system in demoting the relatrix from the position of principal to that of a teacher in the High School with retention of her tenure rights. If the Board erred and acted illegally or unreasonably *Page 370 or without sufficient evidence, it was the duty of the trial judge to correct the error. But, where, as here, the evidence leaves no doubt as to wilful neglect of duty and incompetency of the relatrix to serve as principal, the learned district judge had no right to set aside the resolution of the Board.
It is said that the Board should have discharged the relatrix and not merely demoted her as the principal, if the evidence is sufficient to sustain the charges. The whole attitude of the School Board, as reflected by the record shows indulgence of the relatrix, first, in promoting her to the principalship of the Eighth Ward Grammar School, second, in transferring her to a new school as principal after she had gotten into difficulties as principal in the Eighth Ward Grammar School, and third, in only demoting her as principal but with retention of Tenure rights as a teacher in the High School. The mere fact that the Board showed sympathy and indulgence to the relatrix because of her long tenure of service is no good reason for saying that the action of the Board should be rescinded because it was less severe than it might have been.
The relatrix' attitude towards the Parent-Teachers' organization is expressed by her counsel:
"Q. Yet, on the other hand, you say that Miss Rathe did co-operate with you? A. In her moments of weakness.
"Q. I think that is a slam against Miss Rathe, which I don't think belongs in the record. A. I can't see where its a `slam'. *Page 371
"Q. Well, `cooperation in moments of weakness' certainly sounds like a slam to me. Maybe that's where she made a mistake — in co-operating with the Parent-Teachers. My experience as a teacher and as a principal has taught me that the more you have to do with Parent-Teachers organizations the less you get done; and the less you have to do with them, the better off you are."
The relatrix' feeling towards the parents and teachers of her school was revealed when she stated that the teachers were against her because they wanted to stand around enjoying themselves rather than carry out their duties; that the parents were opposed to her because she would not let them spend the funds of the Parent-Teachers' organization for their own pleasure; and that the new principal of the school, who succeeded her, had broken open the principal's desk and taken the relatrix' papers.
The record indisputably shows that the trouble was exclusively between the parents and teachers of the students of the school and the principal, and neither the members of the School Board nor the Superintendent of Education had any personal knowledge of the difficulties or were in any way involved therein.
The evidence reveals the utter futility of the Board attempting to operate this school under the facts and circumstances proved in this case with the relatrix as the principal thereof. We have carefully reconsidered the case and it is our opinion that the judgment of the trial court holding that there was not "a scintilla of evidence *Page 372 to prove the charges" against the relatrix as principal is manifestly erroneous.
For the reasons hereinabove given and for those stated in our opinion on rehearing dated May 22, 1944, the relatrix' application for a rehearing is denied at her costs.
O'NIELL, C. J., and ROGERS and HAMITER, JJ., adhere to their original opinion.
On Motion to Vacate Judgment and to Recuse. ODOM, Justice.
The appeal in this case was lodged in this court on September 25, 1942. On December 13, 1943, we handed down an opinion affirming the judgment of the lower court. Subsequently a rehearing was granted, and on May 22, 1944, we handed down an opinion on rehearing setting aside our original opinion and reversing the judgment of the district court. We ordered relatrix's suit dismissed at her costs, but granted her the right to apply for a rehearing.
On June 5, 1944, relatrix filed in this court a motion "to vacate and recall the opinion and decree rendered in this cause on Monday, May 22, 1944, for the reason that the same was improvidently rendered and handed down, because said judgment was rendered and concurred in by only four members of the court, one of whom, Mr. Justice HIGGINS, was disqualified from taking part herein because of (1) His being interested in the Cause, (2) *Page 373 His being related to one of the parties within the fourth degree."
It is further alleged in the motion that, Justice HIGGINS being without right to participate in the decision, "it remains that three justices of this court qualified to sit concurred in the decree but that three justices of this court dissented and therefore no decree could constitutionally and legally have been entered."
Relatrix prayed "that the said opinion and decree be vacated and recalled and that mover be granted a rehearing and that the case be further argued before a court legally constituted by the calling in of a Judge from another court as provided for by the Constitution of Louisiana."
As shown on its face, the motion was made for the dual purpose (1) of having the decree rendered on rehearing vacated and recalled on the ground that only four justices concurred in the opinion, one of whom, Justice HIGGINS, was not qualified to take part in the case, and that therefore the opinion was rendered by only three qualified judges, which is not a majority of the court, and (2) of having Justice HIGGINS recused and a judge from another court called in to act in his stead.
It is alleged that Justice HIGGINS should be recused for two reasons: (1) That he is interested in the cause, and (2) that he is related to one of the parties within the fourth degree.
Even if it be conceded that there is merit in the motion to recuse Justice HIGGINS, the motion to recuse comes too late and cannot be considered. The *Page 374 case was originally argued and submitted on November 9, 1943. Justice HIGGINS was then on the bench and took part, to the knowledge of counsel for relatrix. A rehearing was granted on February 10, 1944, and the case was argued and submitted on rehearing on April 24, 1944, and Justice HIGGINS wrote the opinion on rehearing. The motion to recuse was filed in this court on June 5, 1944, 14 days after the opinion on rehearing was handed down.
Relatrix and her counsel reside in the Parish of Jefferson, where this suit originated. They knew, of course, when the case was first submitted to this court, that Justice HIGGINS resided in that parish also, and they knew, of course, that Justice HIGGINS is a brother of Lemuel Higgins, superintendent of schools of that parish. They have known all this from the time the appeal in the case was lodged in this court. And yet, without making the slightest objection to Justice HIGGINS' taking part in the case, counsel argued and submitted the case to the court on two separate occasions. If he had thought that Justice HIGGINS was not qualified to take part in the case because of his alleged interest therein and because he is related within the fourth degree to Lemuel Higgins, the parish superintendent of schools, it was his duty to speak before the case was first called for hearing in this court. It is perfectly apparent that he was willing for Justice HIGGINS to take part in the case; otherwise he would have moved to recuse him before the case was heard. *Page 375
According to Article 337 of the Code of Practice,
"Recusation is the refusal, on the part of the defendant, to have his cause tried by the judge before whom he has been sued, on account of the ties of relationship existing between such judge and the plaintiff, or for other just causes hereinafter expressed."
Relatrix did not refuse to have her cause tried before Justice HIGGINS. She permitted it to be tried before the court with Justice HIGGINS as one of its members. She now complains that the judgment is invalid because Justice HIGGINS was one of the four who took part in the opinion on rehearing. She cannot be heard to complain now.
In the case of State v. Bordelon, 141 La. 611, 75 So. 429, 430, this court held that a judge may be recused before trial or, just as soon as the defendant becomes aware of the cause for recusation, during the course of the trial, but that he cannot be recused after trial and judgment.
After quoting Article 337 of the Code of Practice, we said in the course of our opinion:
"Thus it seems, from the article quoted, that a defendant may recuse the judge during the trial of a cause; and that is so of other statutes relating to recusation. There is no provision found for the recusation of a judge after the trial of the case,or on appeal." (Italics are the writer's.)
It was definitely held in that case that, where a defendant is acquainted with all the facts and permits the case to go to trial *Page 376 and judgment is rendered, he cannot thereafter have the judge recused, and that it was the defendant's duty to file a motion to recuse immediately after the facts were known to him, and his failure to file the motion in time was a waiver of his rights under the statute.
In the Bordelon case the court quoted extensively from the case of Ricks v. Gantt, 35 La.Ann. 920, which was a civil case. In the Ricks case the court said:
"It thus appears that, at the inception of the suit, the defendant was fully aware of the relations of the JUDGE to the cause, upon which his present charge of incompentency is based. Nevertheless, without objection, he joined issue and, in fact, expressly asked the Judge to pass upon the very question as to whether the payment made to him `was properly or improperly made, and whether the defendant should or should not be allowed a credit for it,' which question is the sole ground of personal interest in his subsequent pleadings as cause for recusation."
It was held in the Ricks case that, under the circumstances, the motion to recuse came too late.
Furthermore, we find no merit whatever in the suggestion that Justice HIGGINS should be recused. Counsel for relatrix suggest no reason whatever why Justice HIGGINS should have any personal interest in the outcome of this litigation. He is a resident of the Parish of Jefferson and a taxpayer there. But that affords no reason for recusing him. He is a brother of Lemuel Higgins, superintendent *Page 377 of schools of Jefferson Parish, but Lemuel Higgins is not a party to this suit. Relatrix brought her suit against the Jefferson Parish School Board. Lemuel Higgins is not a member of the board. It is true that he is secretary of that body, but he did not originate the charges made against relatrix. The charges were made by "parents of pupils attending the Metairie Grammar School." They petitioned the Jefferson Parish School Board "that a new principal be appointed for the School for the coming year, because of a decided lack of efficiency in the conduct of the school." Miss Rathe, the relatrix, was principal of the Metairie Grammar School at the time. This petition seems to have been presented to Superintendent Higgins, and, according to the minutes of the school board, he presented the petition to the board, which it was his duty to do under the law. There is nothing in the record to indicate, much less to show, that Superintendent Higgins caused this petition to be drawn up and presented to the board. The school board subsequently ordered Superintendent Higgins to make an investigation of the charges brought against relatrix, and, so far as the record discloses, the investigation which he made was fair and impartial. The action of the school board was not based on his report but on the testimony of witnesses who appeared before the board at an open hearing, at which relatrix was invited to appear.
Superintendent Higgins testified as a witness in the case and said that he had no personal knowledge of the merits of the charges made against relatrix other than what the witnesses said. *Page 378
According to Article 338 of the Code of Practice, one of the causes for the recusation of a judge is "His being related to one of the parties within the fourth degree." Justice HIGGINS is related within the fourth degree to Lemuel Higgins, superintendent of schools of Jefferson Parish, but Lemuel Higgins is not "one of the parties" to this litigation.
The motion to vacate and to recuse is denied.
HIGGINS, J., takes no part.