Summary
recognizing that a state university is an instrumentality of the state
Summary of this case from Deschenes v. Ohio State Univ. Long Term Disability PlanOpinion
No. 73-580
Decided March 6, 1974.
Actions — High school operated by state university — Program terminated — Action to prevent termination — To specifically enforce alleged contract — Discretion of court — Relief not available, when — Granting relief costly and injurious to public.
APPEAL from the Court of Appeals for Portage County.
Some fifty-four years ago, Kent State University instituted a four-year high school program to provide experimental classroom training to students in the university's College of Education. Pupils from the Kent and Akron vicinities were enrolled in the training facility, and upon successful completion of the program were awarded high school graduation certificates.
In the early months of 1972, the Board of Trustees of Kent State University announced that the high school program would be terminated in June 1972, and that the high school would not reopen in the fall of 1972.
Leslie Sternberg, appellant herein, was a pupil in the university high school. She brought suit on April 10, 1972, in the Court of Common Pleas, by her father and next friend, Richard Sternberg, for herself and others similarly situated, against the Board of Trustees and the President of Kent State University, appellees herein. The court was asked to enjoin termination of the high school program and to specifically enforce an alleged contractual obligation of the university to continue the program until such time as the members of the class completed their studies and received high school certificates.
Appellees moved the court to dismiss the action, alleging that the complaint fails to state a claim upon which relief can be granted.
The Court of Common Pleas sustained the motion to dismiss, holding that "any such contract as alleged by plaintiff would be ultra vires."
The Court of Appeals affirmed the judgment of dismissal, holding that:
"* * * Any contract entered into by the Trustees of Kent State University promising a certificate or diploma to any student who would enroll at said teacher training school would be, if indeed such a contract exists, an ultra vires contract and not actionable."
At no time during the proceedings below did appellant apply for a temporary restraining order or preliminary injunctive relief. Accordingly, appellees implemented their plan to terminate the high school program and proceeded to dismantle and redistribute the existing facilities.
By affidavit, filed in the Court of Appeals on October 14, 1972, Dr. Richard R. Palermo, Director of the Kent State University School, advised the court that "the Kent State University High School is no longer in existence and it would be physically impossible to reopen the institution."
Dr. Palermo described the fait accompli, as follows:
"* * * The student body that was heretofore the Kent State University High School has either graduated or been assimilated to other high school programs in the area.
"The physical facility, including the classrooms, office space, laboratories and gymnasium that was the university high school has been completely reutilized by new programs and work shops. Six of the classrooms are presently being utilized by the Kent city school system as part of their special education program. Two of the rooms are being utilized by the Department of Early Childhood Education as a day care center for the children of the faculty, students and nonacademic personnel of Kent State University. An additional four rooms and offices house the mathematics methods classes for Kent State University students taking elementary mathematics methods courses. Two rooms are being utilized for a new program concertrating on esthetic education on the elementary level.
"In addition, the gymnasium is being utilized by the physical education department of Kent State University and after 5 p.m. by the Kent State University intramural program.
"Of the 23 faculty members who had been teaching at the Kent State University High School, approximately 3 or 4 have been absorbed into the faculty or administration of the Kent State University and the 18 or 19 remaining have found new positions with various secondary educational programs throughout the state of Ohio."
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. Richard Sternberg, for appellant.
Mr. William J. Brown, attorney general, Mr. James E. Michael and Mr. Oliver J. Schneider, for appellees.
The question presented in this case is whether the complaint states a claim upon which relief can be granted. The relief sought by appellant is twofold: An injunction to prevent appellees from terminating the now defunct university high school; and specific performance of an alleged contract which would enable appellant's class to complete its studies and receive a diploma from the university high school.
The Court of Common Pleas and the Court of Appeals determined that appellees lacked authority to assume the obligations of the alleged contract. We recognize that a state university, as an instrumentality of the state, has the power to bind itself by contract. Whether appellees had authority to enter into the particular contract alleged herein is a question we need not consider. Rather, our inquiry is limited to the availability to appellant of the relief sought.
"* * * To say authoritatively that a state has not power to contract, is to doom her to the incapacities of perpetual minority, indissoluble coverture, or endless lunacy." Matheny v. Golden (1856), 5 Ohio St. 361, 365.
Specific performance of a contract is a distinctively equitable remedy. Commrs. of Muskingum County v. State (1908), 78 Ohio St. 287, 305. In Huntington v. Rogers (1859), 9 Ohio St. 511, 516, the court said: "* * * specific performance * * * rests in the sound legal discretion of the court, in view of all the circumstances of the case. It is not a matter of right, but of grace; and the defendant will succeed in procuring the dismissal of the * * * [action] if he can convince the court that the exercise of their jurisdiction will be inequitable under the circumstances." The same is true for the extraordinary remedy of injunction. Perkins v. Quaker City (1956), 165 Ohio St. 120, 125.
The facts of this case are clear. Appellant made no attempt to preserve the status quo by application for temporary or preliminary injunctive relief. The high school program has been terminated and the facilities redistributed. To grant the relief sought would require a costly reversal of the process. Not only would this create a hardship upon appellees, but the public would be injuriously affected by the diversion of resources to a program which would be short lived and not necessary to the maintenance of the university. 43 Corpus Juris Secundum 557, Injunctions, Section 80(c)(7).
In view of the foregoing considerations, appellant is not entitled to the relief requested. Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.
HERBERT, J., concurs in the judgment.