
    (Clinton Co., Court of Common Pleas.)
    August, 1898.
    THE STATE OF OHIO, ex rel. MILTON HUNT, v. THE BOARD OF EDUCATION, WILSON TOWNSHIP, CLINTON CO., O.
    (1). Under section 4017, of the Revised Statutes, as amended March 11, 1898 (93 O. L , 48), final power is conferred upon township boards of education in the matter of electing teachers in township sub-districts.
    (2.) Where a township board of education has failed or refused at its next regular meeting to confirm the election first made and certified by the local board of sub-directors, said local board ciannot again elect the same teacher arid certify such election to the township clerk.
    (3). When the township board fails or refuses to confirm the first election made by the local board, and such local board does not elect “another teacher” before the third Monday in August,it is a failure to elect by the local board, and the township board of education may then employ a teacher for such sub-district under section 4017.
    (4). In the absence of any charge of fraud, corruption or bad faith on the part of the township board of education, said board cannot be compelled by a proceeding in mandamus to show why it failed or refused to confirm the election made by the local board of sub-directors.
    (5). Whether in any event such proceeding could be instituted by a person merely as a resident “tax payer and patron of the school” quere.
   VAN PELT, J.

The questions for determination arise on demurrer to the petition, which is in substance as follows:

Relator avers that he is a resident -of sub-district No. 3 in Wilson township, Clinton county, Ohio, and is both a tax payer therein and patron of the school; that on June 15, 1898, the local board of sub-directors of said sub-district, at a meeting duly and legally held, elected one C.W. S. to be teacher of the school in said sub-district; that a certificate of such election, duly signed, was by the director of said sub-district forthwith filed with the township clerk for reference to the standing committee on teachers of the board of education; that said board at its next subsequent meeting, to-wit: June 20th, refused to take any action on said election, but postponed the same; that on the 10th day of August the local board of sub-directors held another meeting of which due and legal notice was given, and again duly elected the said C. W. S. to be the teacher of said school;, that such election was again duly certified by- the local board to the township clerk for reference to the committee on teachers; that said C. W. S. was an excellent and efficient teacher of good moral character, had never been guilty of neglect of duty or immoral or improper conduct, and' had the required certificate to teach; that these facts as to the character and qualifications of said C. W. 8., were conceded by the board of education, yet that said board at its subsequent meeting, held on August 15th,refused to confirm said election ; that said board postponed action on said certificates of election until the third Monday in August in order that it might elect and place in the school a teacher of its own selection without regard to the wishes and desires of the local board; and finally refused to confirm said election for the sole reason that it desired to elect the teacher, having “favorites of its own” among the teachers; and that on the third Monday of August it elected one S. H. P. to be the teacher of the school in said sub-district. Such are-the essential facts Stated in the petition, and the prayer is that the board of education be commanded to proceed according to law to confirm the election made by the local board.

Petition filed August 19, 1898.

Is the relator on the facts stated entitled to the relief prayed for?

The township board of education consists of the township clerk and one director elected from each sub-district. See. 8915 (93 O. L., 45). In. addition to the director for each sub-district, there are two sub-directors elected in each sub-district, and the three, the director and the two sub-directors, constitute the board of sub-directors for each sub-district. The two sub directors do not become members of the township board of education. Secs. 3916, 8917 and 3918 (93 O. L., 45, 46). The local director is the presiding officer in all meetings of the local board of sub-directors, and is required to keep a record of all i ts meetings and proceedings. The board is required to hold two regular meetings each year, on the third Saturday of April and of August, “and may meet as frequently as they deem necessary for the purpose of electing teachers,” upon due notice given to each member. Sec. 3918, supra. The board of education is required to hold six regular sessions, on the third Mondays of April, -Tune, August, October, December, and February, and they may hold adjourned sessions, and also special meetings, on call of the township clerk. Sec. 3920 (93 O. I/., 46). The board is required to appoint three standing committees, one of which is a “committee on teachers and textbooks.” It is the duty of this committee “to consider the certificates of election of teachers filed bv the board of sub-directors”, etc. Sec. 3920, supra. The board of education fixes the salaries of all teachers in the township. The boards of sub-directors are required to “elect the teachers in their respective sub-districts,” but such election shall De subject to confirmation by a majority of the board of education. “Whenever any board of sub-directors elects a teacher, the director thereof shall at once file a, certificate of such election, signed by at' least two members of such board, with the township clerk, who shall refer such certificate of election to the standing committee on teachers, and such committee shall make a report of the same to .the board of education, and the board of education shall confirm or refuse to confirm such election at its next regular meeting after the filing of such certificate of election with the township clerk. If the board of education fail to confirm the teacher elected by any board of sub-directors, such board of sub-directors shall elect another teacher before the next regular meeting of the board of education: if the board of sub-directors fail to elect a teacher for their school, or if the board of education shall fail to confirm such election on or before the third Monday in August of any year, the board of education shall then employ a teacher for such sub-district.” The board may “dismiss any appointee or any teacher for inefficiency, neglect of duty, immorality or improper conduct.”

Such are the essential provisions of the statutes relating to the employment of teachers in township sub-districts. Prior to the act commonly known as the “Workman Act” which took effect April 1, 1893 (89 O. L., 92-97), teachers in sub-districts were elected by- the boards of sub-directors, subject to the provision that if any board of directors should fail to employ a teacher for their school, the township board of education should employ such teacher. Sec. 4018 as amended, March 6, 1890 (87 O. L., 46), and the same section in the revision of 1880, and the previous acts relating to the same subject. This method of employing teachers had been in use for many years. It was not found to be entirely satisfactory. Men were often chosen local directors who had but little education or experience in school matters, and they were frequently controlled in the election of teachers more by local,political,religious, social, or family considerations than by a careful inquiry into the relative merits of the different applicants. The contests of rival teachers for employment were often carried into the election of directors, and men were often elected not because of their fitness to discharge with intelligence and fairness the duties of directors,but because of previous promises to support certain applicants. The best interests of the schools were often lost, sight of in the excitement attending such contests,and local antagonisms were aroused which often- -proved fatal to the success of the teachers selected under such circumstances. These and perhaps other objections influenced the legislature to make a change in the law regulating the method of employing teachers; and under the Workman Law, of 1892, boards of local directors were abolished, and the duty of electing teachers was committed to the township boards of education, composed of the township clerk and one director from each sub-district. Sec. 3915 and 4017 (89 O. L., 93, 96). Objections soon developed to this method. While the former method was found to give too much scope of the operation of influences purely local and partisan, under the latter method the wishes and desires of the patrons of the school who were immediately concerned, often received but slight consideration, or were entirely ignored. The former plan was in too great a degree dependent upon, while the latter was too far removed from, local infltjepe.e and interests. The legislature sought by the act of March 11, 1898 (93 O. L., 45), to obviate these objections by providing a new method of electing teachers which should embrace the best features of both the former methods. By this act local boards are restored under the name, of “boards of sub-directors,” consisting of one director and two sub-directors. The director becomes a member of the township board of education. This board appoints a standing committee on teachers. The election of the teacher for a sub-district comes first before the board of sub-directors, at a regular or called meeting. ( If a teacher is olected the director from that sub-district, certifies such election to the township clerir. The certificate must be signed by at least two members of the local board. The clerk refers the certificate to the standing committee on teachers, of the board of education. This committee is required-to “consider” and act upon the matter, and to make a “report” to the board at its next regular meeting. The language of the sections 3920 and 4017 plainly confers upon this committee the power to exercise its judgment and to report in favor of or against electing the teacher named in the certificate. Its duties are not confined merely to reporting to the board the certificates which have been filed, but such certificates come before it for its consideration. This is evidently intended as a safe guard against hasty, or ill-advised action by the local board of subdirectors. This report of the committee comes before the board of education at its next regular meeting. Before the matter reaches the ooard it has been considered and acted upon by the two bodies. If the committee reports in favor of or against the teacher named in the certificate, the board of education must consider the matter and may confirm or refuse to confirm the election. This power implies the right to use its own independent judgment. The matter comes before this hoard not merely for the purpose or ratifying the action of the board of sub-directors or of the committee, but for its own consideration and independent action. It may confirm the election made by the board, even if the committee has reported adversely. It may fail or refuse to confirm, even if both the local board and committee have reported favorably. By this independent action of the three bodies the legislature has sought to guard on the one hand against disturbing and antagonistic local influences or passions, and on the other hand, against the indifference or inattention of a board too far removed from those most vitally interested, 'the patrons of the school. If the election of a teacher has been considered by the local hoard, the committee and the township hoard, and all concur, the liability to mistake in the selection is reduced to the minimum, and the interests of the school are not likely to suffer in the hands of a teacher so elected. If the committee report against the teacher elected by the local board, the matter then comes before the board of education, under circumstances which may well induce the board to give the matter their most careful consideration. If this board finally confirms the action of the local board, it is safe to assume that all objections have received due consideration, and that no substantial reasons against the employment of such teacher have been found. If the township board fails or refuses to confirm, local interests and desires are not overlooked, hut the matter goes again before the . board of sub-directors. They are given another opportunity. They may have a second choice. There may be other teachers applying. They are by the statute given the right to elect and certify “another teacher”. - They may not stubbornly adhere to their first choice, and re-elect and again certify the same teacher; but they may again consider and elect “another” who, according to their nest judgment will render efficient services as a teacher. In this day of advanced education and thorough training of teachers, it cannot be possible that in any case only one person can be found competent to teach the school in a particular sub-district. The difficulty in electing teachers now lies not in a lack of efficient teachers to select from, but in making the best selection from the large number of available applicants. It is urged, however, that when a board of education refuses to confirm a teacher elected by the local board, such board of education must be able to give and,may be required to give some legally sufficient reason therefore — that the discretion vested in the board of education is not an arbitrary discretion, but is so far subject to judicial control, that the ■board may be called upon by a proceeding m mandamus to show some good and substantial reason for refusing- to confirm the election made by the local board. It is said that it is not enough that the board of education may find some other teacher whom its members believe to he more efficient, or for any reason better qualified to teach that particular school; but that such board can justify a refusal to confirm only by showing some objection touching the character, qualifications or fitness of the teacher elected by the local board. At least it is argued that it cannot refuse to confirm merely because it may have some special favorite among the teachers to whom it may prefer to give the place. It is said that to permit township boards to refuse to confirm without requiring them to show a good and substantial reason therefor is in effect to nullify the provisions of the law conferring upon local boards the right to elect teachers, T-do not think so. Members of boards of education are human beings, and may, and doubtless will in some cases act arbitrarily, influenced by passion, prejudice, or personal considerations. The possibility of such action is present in every case where partizan bias, or personal favor may influence conduct. It may affect a local board of sub-directors, as well as a township board of education, and perhaps in the matter of electing teachers is more ' apt to do so. If the township board may be influenced by such motives in refusing to confirm, so may the local board in electing. Final power must be vested somewhere, and the law places it in the board of education. The courts cannot inquire into the motives that may actuate either board, unless fraud, corruption, or bad faith is charged. The evils that would result from interference on less serious grounds would be far greater than those which may flow from the larger liberty of action, though such liberty may occasionally result in an election prompted by passion, prejudice, or personal favor. The instances will, I believe, be very rare, where the commit fee on teachers, or the township board will refuse to confirm the election made by the local board without substantial reasons therefor. If in any case the board should refuse' to confirm 'the first election, the local board haB it in its power to again elect another teacher, and a second refusal tc confirm can scarcely be expected in any case, consistently with good faith on the part of the board of education. Every provision of the statute may be given effect without denying to the township board the power to finally decide,, which seems plainly conferred by the language of sec. 4017. In this case the local board refused to make a second choice. Whether such refusal was prompted by passion, local causes, or personal bias, I cannot know. It is charged that the refusal of the township board to confirm this election, was solely because it desired to elect the teacher and had “favorites of its own” among the teachers. A charge of favoring one teacher above another, even admitting' ¡hat the one discriminated against is in every way worthy and efficient, is not a charge of either fraud or bad faith. The school may prosper as well under the management of the one as of the other, and no public interest may suffer thereby. By failing (o elect “another” teacher, after the township board failed to confirm the first election, the local board placed-it m the power of the board of education to elect the teacher after the third Monday of August. That board has done so ; and its action is final A question has been raised as to the right of the relator, merely as a tax payer and patron of the school, to maintaion this action. But as the demurrer must be sustained on the main question of the construction of the statute, I have not found it necessary to determine the question last suggested.

Mills, Clevenger & Huls, for relator. W. H. Hartman, and West & Walker, for defendant.

Demurrer sustainrd.  