
    The State of Ohio on relation of Clinton Riley v. John Blain, Clerk of Jackson Township, Pike County, Ohio.
    1. The wrongful exclusion of a pupil from the benefits of a common sub-district school by a teacher, under the direction of the local directors, does not defeat the right of such teacher to his wages, duly certified by the local directors.
    2. A township clerk to whom application is duly made by a teacher of a sub-district school for an order on the township treasury for the amount of his wages, duly certified by the local directors, cannot refuse to draw such order on the ground that the contract of employment, between the teacher and the local directors, wrongfully stipulated for the exclusion from the school of certain of the youths of school age residing within the sub-district.
    3. Nor can such refusal be justified on the ground that it was made in pursuance of an order of the township board of education.
    Mandamus. Error to the District Court of Pike County.
    On July 1,1876, the relator was employed by the local directors of sub-district No. 1, Jackson township, Pike county, to teach school in said sub-district for the term of six months, in consideration of $40 per month. In pursuance of such employment, the relator taught such school for six months, commencing September, 1876, and ending March 2, 1877. At the close of the term the local directors certified the amount due relator to the defendant as township clerk, whereupon the relator, having furnished said clerk with all the certificates and reports necessary to entitle him to payment, demanded of the defendant an order on the township treasury for the amount due to him under said employment, to wit, $240. The defendant, having refused to draw such order, the original proceeding in mandamus was commenced in the district court, where an alternative writ of mandamus was issued commanding the defendant to draw such order in favor of relator, or show cause for refusing to do so. To this writ defendant answered, and for cause alleged, in substance, that the contract between the relator and the local directors, under which the relator’s services were rendered, was illegal and void.
    On the trial, judgment was rendered against the relator, who, having duly executed, filed his bill of exceptions, in which all the facts admitted and proved were set forth.
    Prom the bill of exceptions it appears that, by the terms of the contract,.the children of one B. P. Smith, residing in the sub-district, were to be excluded from the school. That these children, five in number, of proper school age, were of African descent, and there were no other children of school age, of African descent, residing in said sub-district, “ or living contiguous thereto near enough for the purposes of school benefits. That the board of education of the township had made no •other provision for the education of said Smith children, but had ordered said children instructed by the teachers of said sub-district, and had ordered that if said Riley refuse to teach «aid Smith children (contrary to the order of said board), that the township clerk refuse to giv.e said Riley an order for his services as such teacher in said sub-district.” That relator had notice of the order of the board of education. That after •the order of the board of education -was served on relator, the •children of Smith presented themselves at said school for instruction and were received and taught by said relator. But within a week after said children were admitted to the privileges of the school by relator, the local directors of the sub-district “ notified said Riley that unless he taught said school in accordance with his said contract and excluded said colored children, he should be dismissed from further service.” That then and thereafter, during the balance of said term, said colored children, under the direction of the local directors, were wholly excluded from the privileges of said school.
    This proceeding in error is now prosecuted to reverse the judgment of the district court.
    
      A. B. Gole, for plaintiff in error.
    
      JR. Dougherty and II. James, for defendant in error.
   McIlvaine, J.

The arguments of counsel have been •directed, chiefly, to the question, whether or not, under the ■“ act for the re-organization and maintenance of common schools,” passed May 1, 1878, which provides for the separate ■education of white and colored children, colored children, in a •district where no provision has been made for the separate education of such children, can be rightfully excluded from the benefits of schools in which white children are instructed ? A majority of the court, however, are of opinion, that the solution of that question would not determine the rights of the parties to ■this action. Let it be conceded, for the purposes of this case, that Smith’s children were wrongfully excluded by the teacher, under the direction of the local board of directors. The rights of the parties would have been exactly similar, if white children had been wrongfully excluded. In either case, the wrong Avould result from the fact of exclusion, and not from the motive. The stipulation for exclusion in the contract of employment, as well as the fact of exclusion from the school, must be attributed to the mistake or error in judgment of the local board of directors; and the simple question is, should the relator be deprived of his compensation for services faithfully performed under the direction of his employers, solely onthe ground that such direction was in violation of the rights of certain pupils ?

By section 53 of the act, it is provided, that in each township district, the local directors shall employ, or dismiss for sufficient cause, the teacher or teachers of the school or schools-in the sub-district in which they reside,” and it is only “in case the local directors of any sub-district shall fail to employ a teacher or teachers as aforesaid,” that, “ the board of education shall employ a teacher or teachers for such sub-district.” In the case before us, the local directors employed the relator, and continued him in service during the whole period of his employment, and at the end of the term certified the amount due to him for services to the township clerk, whose duty it was, upon the filing of such certificate by the teacher, together with such' reports as were required by the rules of the board, and his certificate of qualifications from the board of county examiners (all of which were done), to draw an order for the amount upon the township treasurer. This duty was required of the defendant as township clerk, and not as clerk of the township-board of education. In order to ascertain his duty in the premises, the statute prescribing the duties of township clerk was his guide, and not the resolutions or orders of the board of education.

Assuming that the stipulation, in the contract of employment, for the exclusion of Smith’s children from the school, was void, for want of poAver to make it, and supposing further, that the act of excluding these pupils was in violation of their fights, it is nevertheless true, that the relator was employed to> teach in said sub-district, and did so teach during the whole term of his employment. And it is also true, upon this assumption, that the excluded pupils might have compelled their admission to the benefits of the school by writ of man-damns, or, by civil action, have recovered damages for their wrongful exclusion. Ample remedy was and is provided by the law for the redress of such a wrong. Bat the idea of such a wrong, and *uch remedy, is based on the assumption that these children were excluded from a public school to the benefits of which they were entitled; and in order to constitute the school from which they were excluded, a public school to which they were entitled to admission, it must be admitted that the relator was, in fact and in law, employed as a teacher by the local directors — for the reason, that if his employment as. a teacher of a public school was wholly illegal and void, it must follow that these children suffered no wrong in being excluded from the school by him, inasmuch.as, in such case, the school taught by him was a private school, to which they were not entitled to admission. But such view of the case cannot be maintained ; for surely, if the excluded pupils bad instituted proceedings to compel their admission to the school, as taught by the relator, neither the teacher nor local directors could have defended upon the ground that the school was not a public school organized and maintained under the provisions of said statute. Such defense would have been denied, not upon any ground of estoppel, but upon the ground that, in fact and in law, it was a public school within the purview of said act.

Judgment of the district court reversed, and peremptory writ of mandamus amarded.

Boynton, C. J.

Iconcurinthe reversal of the judgment of the district court, solely on the ground that when the teacher presents to the township clerk the certificates and reports named in the last clause of section 53 of the act of May 1, 1873, for the reorganization and maintenance of common schools, it is the duty of the clerk to draw an order on the township treasury for the amount due the teacher for his services. He cannot go back of the certificate of the local directors, and inquire into the validity of the contract under which the services were performed. That a contract between a teacher and local directors, by which the former agrees, as a part consideration of his employment, to exclude from the school pupils that have the right to attend the 'school, is illegal, and consequently void, I entertain no doubt. But where the same has been so far executed, as to leave nothing to be done save the mere ministerial act of drawing an order for the amount certified to be due the teacher, it seems to me to be entirely beyond the power of the township clerk to prevent payment of the services, by withholding the order.

Johnson, J.,

dissenting. The statement of facts shows that the relator, in making his contract with the local directors to teach the school, expressly stipulated for the exclusion of certain •colored youth from the school, and that he faithfully executed •.this contract by actually refusing to admit or teach them ; that it was not practicable for the board of education of the township to provide for them a separate school, and that said board had -ordered them instructed in this school.

This contract being made and performed by the relator in violation of the school law, and of the rights of these children, .and against public policy, as is conceded by the opinion of a majority, I think it follows, that no court of justice should .lend its aid to its enforcement, especially where it appropriates money out of the school funds provided for the equal benefit ■of all. Spurgeon v. McElwain, 6 Ohio, 442; State v. Findley, 10 Ohio, 51; Rossman v. McFarland, 9 Ohio St. 369; Huber v. German Cong., 16 Ohio St. 371; Delaware v. Andrews, 18 Ohio St. 49.  