
    Board of Education v. Best.
    
      Election of teachers — Calling of roll and recording the ayes and noes — Mandatory provision — Section 398t, Revised Statutes, considered. „
    1. The clause in section 3982, of the Revised Statutes, to wit: “Upon a motion * 9 9 to employ a 9 9 9 teacher, 9 9 the clerk of the board shall call, publicly, the roll of all the members composing the board, and enter on the record required to be kept, the names of those voting aye, and the names of those voting no,” is a mandatory provision and must be strictly pursued.
    2. Where the minute book, containing a record of the proceedings of a board of education, shows that all the members of the board were present; that a motion to proceed to the election of teachers was carried by a unanimous vote; and that an applicant for the position of teacher was declared elected by a unanimous vote, but that the clerk did not call the roll of the members, and the names of those voting aye were not entered on the record, the requirement of the statute was not sufficiently complied with, and the election was invalid.
    (Decided December 11, 1894.)
    Error to the Circuit Court of Muskingum county.
    The defendant in error, Jennie Best, filed her amended petition in the court of common pleas of said county, against The Board of Education of New Concord Village School District, the plaintiff in error alleging as follows :
    ‘ ‘ Plaintiff says that some time prior to May 17, 1887, she made a proposal by written application to the said board of education to teach the intermediate or primary department of the school of said district, for the customary time of nine months and at the customary salary of thirty dollars a month, said term to begin on or about the 5th day of September, 1887; that said board of education of the said 17th day of May, 1887, accepted plaintiff’s proposal and entered into a contract with her by electing her as teacher of said intermediate department of said school, and giving her a written notice of said election ; that plaintiff, relying on said contract, held herself in readiness from the receipt of said notice until the school opened September 5, 1887, to perform her part of said contract, and on said last named date presented herself at the school house of said district, having’ a teacher’s certificate duly issued to her by the board of school examiners of said county, as provided and required by law, ready and willing to take charge of said department according to said contract; and that the said board of education then and there broke said contract by utterly refusing to allow plaintiff further to perform her part of said contract, and without cause dismissed her, to her damag’e in the sum of three hundred dollars ($300). Wherefore plaintiff prays judgment against the defendant for said sum of three hundred dollars, with interest from said 5th day of September, 1887.”
    To this petition there was filed an answer in which five defenses were set Up. In the first defense, as amended, the defendant said :
    “That it denies each and every allegation in plaintiff’s amended petition.” The second and third defenses were struck out on motion of the plaintiff. To the fourth defense a general demurrer was sustained. *
    The fifth defense reads as follows :
    “ Fifth Defense — That, in pursuance of the provisions of section 3985, Revised Statutes of Ohio, this defendant, the board of education of the New Concord village school district, adopted for its government and the .government of its employees, a set of rules and regulations, which said rules and regulations were known to the plaintiff. Section 1, of article 3, of said rules and regulations reads as follows:
    ‘ The teachers shall be elected by the board of education annually, and shall hold their position for one year unless sooner removed by the board. The nominations for teachers shall be made at the June regular meeting and not be acted on for two weeks. ’
    ‘ ‘ Said rules and regulations, including said section, were in full force at the time named in the plaintiff’s amended petition, May 17, 1887. At the meeting of the board May 17, 1887, no action was taken suspending any of the rules governing the board.
    “On the 27th of May, at a legal meeting of the board, action was taken declaring the proceedings of May 17 illegal; said action on the 27th was taken before the adoption of the minutes of the meeting of May 17; said plaintiff was duly notified of the action of the board at the meeting of May 27.
    “At the regular June meeting of the board, nominations for teachers were made and the plaintiff’s application, at her request, was considered among others, as teacher for the intermediate department of the schools. Two weeks later, at the July meeting, the plaintiff’s application-was rejected.”
    To this fifth defense there was a general demurrer, which was overruled, upon the overruling of which the plaintiff, for a first reply thereto, alleged:
    “That it is not true and she denies that she had any knowledge whatever of any ‘rules and regulations’ that defendant had ‘adopted for its government and the government of its employes,’ or of any other rules whatever which said defendant had at the time she made her contract with it. Denies that said defendant ever had any such rules and regulations as those stated in defendant’s answer, or were in force at the time named in her amended petition, May 17, 1887. Denies that no action was taken by said defendant at its meeting May 17, 1887, by which any of its rules were suspended, if it ever had any rules.”
    The defendant moved the court to strike from the plaintiff’s said first reply, the following words, to wit:
    “That it is not true and she denies that she had any knowledge whatever of any rules and regulations, that defendant had adopted for its government and the government of its employees, or of any other rules whatever which said defendant had at the time she made her contract with it. ’ ’
    This motion was sustained, and the plaintiff excepted.
    At the trial the minute book of the board, identified by plaintiff’s witness as the record of the proceedings of the board, showed that on May 10,1887, the board met, and without any suspension of the rules, balloted five times for an intermediate teacher without result. Then, without any suspension of rules, it adopted a motion that: “We adjourn to meet Tuesday, May 17, for the purpose of electing’ teachers for intermediate and primary departments.”
    Said record of proceedings also showed that on May 17, 1887, the board, without any suspension of the rules, adopted a motion to proceed to elect teachers for the intermediate and primary departments ; that said motion was carried by unanimous vote and that Miss Jennie Best was declared elected by unanimous vote, for the intermediate department.
    On May 18, 1887, the clerk sent to her a notice of her • election, which she received. She made no reply to the notice, and sent no acceptance to any member of the board.
    On May 27, 1887, at a legal meeting of the board, before approving the minutes of May 17, action was duly taken declaring the election proceedings of that day .illegal. The clerk was ordered to mail to Miss Best a notice that her election had been declared illegal, and on May 28 he duly mailed to her said notice:
    At the regular June meeting nominations for teachers were made and Miss Best’s application, at her request was considered among others as teachers for the intermediate department. Two weeks later, at the July meeting, her application was rejected and another teacher duly elected.
    None of the evidence introduced at the trial discloses that at the meeting of May 17, 1887, the clerk of the hoard called publicly, the roll of all the members comprising the board, and entered on the record required to be kept, the names of those voting “aye,” and the names of those voting “no,” on the question of the election of the defendant in error.
    The evidence for the plaintiff having been heard, the defendant moved the court to arrest the testimony from the jury, and for judgment, which motion was sustained, and the jury was discharged from the further consideration of the case.
    The circuit court reversed the judgment of the court of common pleas for error:
    In overruling the demurrer to the fifth defense; in striking out the plaintiff’s denial that she had any knowledge of the rules and regulations of the board of education, and in taking the case from the jury.
    To reverse the judgment of the circuit court, this proceeding in error is instituted.
    
      M. M. Granger and W. J. Massey, for plaintiff in error.
    The board seeks a reversal of the judgment of the circuit court, because (a) The proceedings of May 17 were illegal.
    (1) For disregard of the rules of the board. Bloom v. Xenia, 32 Ohio St., 462; Sutherland on Construction, 455, and cases cited.
    
      (2) For disregard of the statutory mode of election. Section 3982, Revised Statutes (Giauque); Campbell v. Cincinnati, 49 Ohio St., 463; Clark v. Crane, 5 Mich., 151; Steckert v. East Saginaw, 22 Mich., 104; Spangler v. Jacobi, 14 Ill., 297; Supervisor v. People, 25 Ill., 181; 23 Mich., 457; 36 Ind., 90; 40 Ark., 105; 55 Iowa, 209; 6 Cal., 151; 59 Ill., 286; 29 Iowa, 282. The mode of" election prescribed by section 3982 was exclusive. Dillon Mun. Corp., 465; State v. Liberty Township, 22 Ohio St., 144.
    (6) The reply did not deny the averment in the fifth defense that at the regular June meeting of the board, nominations for teachers were made, and the. plaintiff’s application, at her request, was considered among others as teachers for the intermediate department of the schools ; and that two weeks later, at the July meeting, the plaintiff’s application was rejected.
    (c) The amended first defense put in issue the entire amended petition.
    
      (d) Under the facts put in evidence by the plaintiff the defendant was entitled to judgment. 24 Ohio St., 83; 38 Ohio St., 389.
    (e) The plaintiff sustained no injury by reason of the striking from her first reply its denial of her knowledge of rules.
    (/) The common pleas did not err in striking out that denial. As a matter of law, all persons must take notice of such rules of a public body. 2 C. C. Rep., 510; Story on Agency (9th ed.), section 307; Whiteside v. U. S., 93 U. S., 247; 60 Mo., 53.
    
      (g) The filing of the amended petition made unimportant the action of the common pleas upon the demurrer to the original petition. Bank v. Street, 1 Ohio St., 1.
    Hence the circuit court ignored that assignment of error.
    
      J. A. Troette and S. A. Dickson, for defendant in error.
    The board claims that its proceedings on May 17, 1887, when it elected Miss Best, were illegal, and that it is therefore released from its contract with her.
    On May 10, 1887, the board, by a full vote,, adjourned to meet May 17, 1887, for the purposes of electing teachers. On.the date last mentioned, the board did meet pursuant to adjournment, and all the members were present. The meeting was-, therefore legal. Sections 3920 and 3985, Revised Statutes. Preparatory to carrying out the objects of the meeting, a motion to proceed to the election of teachers was proposed, and was adopted by unanimous vote. The preliminary motion to proceed to the election was, in effect, a motion to suspend any rules which the board may have had providing for the election at any other time. Cushing’s Manual, par. 21; 2 C. C., 510. The board therefore acted within the statutory authority conferred upon it, and elected plaintiff below, not-merely by the statutory quorum, but by a unanimous vote. Sections 3982 and 4017, Revised Statutes. The rules of the board were not a limitation of its power, if it saw fit to disregard them. The statute fixes the only limitation of its power. It is doubtful whether the doctrine of ultra vire® applies in any case to quasi corporations; but if it. be thus extended, the doctrine is, that the plea should not prevail, when justice would not be= advanced, but on the contrary would accomplish a legal wrong. Wait’s Actions and Defenses, vol. 2, p. 335.
    The second question arises on the board’s motion to strike out of the reply defendant’s denial of knowledge of the board’s rules. It is claimed that the law holds her to a knowledge of the rules, and that she was bound by them, even though she did not know, in fact, of their existence. One dealing with a corporation is not bound by the bylaws of such corporation unless he has knowledge of them. Waite’s Actions and Defenses, vol. 2, p. 326. There is a vast difference between statutes enacted by the legislature and rules made for their own convenience bya school board.
    The third question arises upon the board’s motion to arrest the testimony from the jury and-the judgment of the common pleas court sustaining the same. This judgment was founded upon the claim that plaintiff below failed to offer any evidence of a contract, and that her evidence failed because she did not prove that an aye and nay vote was taken on her election. This was no part of her case; if available at all, it should have been set up in defendant’s answer. The record does not show that the clerk called the roll; but it does show what is equivalent to an aye and nay. . The record shows this evidence, and the defendant offered nothing in defense. Section 3982, Revised Statutes, is directory only, and a substantial compliance is all that is necessary.
    
      (a) If no legal sanction is provided by which a compliance can be enforced, they are plainly directory. Sedgwick on Const. Stats., p. 317. *
    (5) An affirmative command, unless accompanied by a negative word, is directory. Sedgwick on Const. Stats., pp. 319 to 324; 24 Ohio St., 241.
    (c) When a provision of a statute is the essence of the thing to be done, it is mandatory; otherwise when it relates to form and manner. 58 N. H., 17; Endlich on Int. Stats., section 436, and cases cited.
    
      id) When nullification of proceedings had in disregard of certain forms prescribed by statute would work injustice to innocent persons, or advantage to those guilty of the neglect, without promoting’ the real aim and object of the enactment, the statute will be held directory. Endlich on Int. Stats., section 433.
    (<?) Statutory requirements intended for the guide of officers in the conduct of business devolved upon them and designed to secure order, system and dispatch in proceedings, and by a disregard of which the right of parties interested cannot be injuriously affected, are not usually regarded as mandatory unless accompanied by negative words. 13 Wall., U. S., 506.
    
      if) The language of section 3982 is addressed to the clerk. The clerk is a mere ministerial officer, and may or may not be a member of the board. Section 3980, Revised Statutes. ,
    
      (g) Section 3904, Revised Statutes, provides that the clerk shall record the proceedings, etc., yet it was held that his failure to do so could not prejudice an innocent party, the statute being mandatory. 3 C. C., 517; Bloom v. Xenia, 32 Ohio St., 462. Statutes controlling the exercise of powers conferred or privileges granted, are more strictly construed than those directing the manner of public duties. Endlich on Int. Stats., section 433.
    (i) The case of Campbell v. Cincinnati, and all of the other eases cited in the board’s brief on the same point have reference to ordinances of a general or permanent nature, and most of them to ordinances involving the taxation of property. The same distinctions mentioned in the preceding paragraph apply to all of these cases, hence they are not analogous.
    
      (j) Where a statute is directory, a departure from the strict observance of it does not invalidate a contract, where it appears that no fraud has been practiced and no substantial right violated. 37 Ohio St., 205; 22 Ohio St., 194; 20 Ohio St., 225; 19 Ohio St., 25; 15 Ohio St., 273; 11 Ohio St., 96; 6 Ohio St., 176; 3 Ohio St., 475; 1 Ohio St., 175. It seems to us that the general principle of estoppel applies to this case. Parsons on Contracts, volume 2, p. 935, and eases cited. The doctrine is well settled in Ohio. Beardsley v. Foot, 14 Ohio St., 414; Dixon v. Subdistrict, 3 C. C., 517.
    The statement that the application of plaintiff below, at her request, was considered at the June meeting of the board, is not true. The board is not warranted in making said statement in its brief, simply because it was contained in the answer and not denied in the reply. At most it can only be deemed matter tending to deny the allegation in the amended petition that plaintiff relied upon her contract; hence, no reply is necessary. Bliss on Code Pleading, section 396; Hoffman v. Gordon, 15 Ohio St., 212; The State v. Williams, 48 Mo., 210; Riddle v. Parke, 12 Ind., 89. It was wholly unnecessary for plaintiff to notify the board of her acceptance. The proposal proceeded from her and was accepted by the board. She made the proposal by a written application ; the board accepted the proposal by electing her and sending her written notice of such election. Parsons on Contracts (7th ed.), volume 1, pi 514.
    The cases in 24 Ohio St., 83 and 38 Ohio St., 389, only go to prove that the jury should have passed upon the evidence offered by plaintiff below.
   Dickman, C. J.

As shown by the record, the defendant in error, Miss Jennie Best, some time prior to May 17, 1887, made a proposal by written application to the plaintiff in error, the Board of Education of New Concord Village School District, to teach the intermediate or primary department of the school of that district. At the regular June meeting of the board she was nominated for teacher, and her application, at her request, was considered among others, for appointment as a teacher in the intermediate department. At the meeting , of the board, two weeks later, in July, 1887, her application was rejected and another teacher duly elected. Notwithstanding the rejection of her application, she presented herself at the school house on the 5th day of September, 1887, when the scholastic year began, prepared to take charge of the school and teach it, but was not. permitted to do so.

It is contended in behalf of the defendant in error, that though not elected a teacher at the regular June meeting, she was duly and legally elected at the meeting of May 17, 1887, whereby a right of action accrued to her against the board when she was refused charge of the school.

Among the provisions applying to boards of education, it is provided by section 3985 of the Revised Statutes, that: “The board of each district shall make such rules and regulations as it may deem expedient and necessary for its government, and the government of its appointees and pupils. ” In pursuance of this section of the statutes, the board adopted a set of ' rules and regulations, among which section 1, of article 3, reads as follows: “The teachers shall be elected by the board of education annually, and shall hold their position for one year, unless sooner removed by the board. The nominations for teachers shall be made at the June regular meeting’, and not be acted on for two weeks.” The wisdom of such a rule is obvious, designed and effective as it is to give an opportunity to become acquainted with the qualifications and fitness of the applicant. The board met on May 10, 1887, and without any suspension of rules, balloted without result for an intermediate teacher, and adjourned to May 17, for the purpose of electing’ teachers for the intermediate and primary departments. On May 17, 1887, without any suspension of rules, a motion to proceed to an election was carried'by unanimous vote, and the board then proceeding to an election, Miss Best was declared elected by unanimous vote for the intermediate department. On May 27, 1887, at a leg’al meeting’ of the board, this election was declared illegal.

It is contended in behalf of the plaintiff in error that the election was illegal for' noncompliance with the rules of the board, and for disregard of the statutory mode of election as prescribed by section 3982 of the Revised Statutes.

It is urged, however, on the part of the defendant in error, that the power of the board to make rules and regulations carries with it the power to suspend a rule, and that when, on May 17, the motion to then proceed to elect teachers was carried by unanimous vote, it worked a suspension of the rule that nominations for teachers should not be acted on for two weeks.

We deem it unnecessary to consider whether the election of the defendant in error was void by reason of a failure to comply with the rule requiring such nominations to be made at the regular June meeting, and not to he acted on for two weeks. In our judgment, the election was without the sanction of law, because in disregard of the above mentioned section 3982. That section contains the following provision: “Upon a motion to adopt a resolution authorizing the purchase or sale of property, either real or personal, or to employ a superintendent, teacher, janitor, or other employe, or to elect or appoint an officer,-or to pay any debt or claim, or to adopt any text hook, the clerk of the hoard shall call, publicly, the roll of all the members composing the board, and enter on the record required to be kept the names of those voting ‘aye,’ and the names of those voting no.’ ”

The clerk is made the recording officer of the hoard, and it is incumbent upon him to call the roll on taking a vote. The statutory provision that he shall publicly call the roll, and enter on the record the names of those voting aye and the names of those voting no, is tantamount to a provision, that the vote shall be taken by yeas and nays and entered on the journal. It is not claimed, nor is it a fact, that at the election of the defendant in error as teacher, the clerk of the hoard called the roll and entered the ayes and noes as required by the statute.

But, it is urged that such requirement is not mandatory, but directory merely. Mandatory statutes are imperative, and must be strictly pursued, otherwise the proceeding which is taken ostensibly by virtue thereof will be void. Sutherland on Stat. Con., section 454. It will be observed, that a motion to employ a teacher is placed on the same footing with a motion to adopt a resolution for the purchase or sale of real or personal property, or to pay any debtor claim — matters of such interest and importance as involving the expenditure of the school fund, that the statute should be strictly followed when a vote is to be taken on the adoption of such a motion.

By section 1694 of the Revised Statutes, ‘ ‘ ordinances of a general or permanent nature, shall be fully and distinctly read on three different days, unless three-fourths of the members elected dispense with the rule; and the vote on such suspension shall be taken by yeas and nays and entered •on the journal.” In Bloom v. Xenia, 32 Ohio St., 461, it was held that the section is imperative in its injunction that ordinances shall be read on three different days, unless the rule is dispensed with by a three-fourths vote; and the remaining .language of the clause is, we conceive, no less imperative or mandatory, that the vote on such suspension shall be taken by yeas and nays, and •entered on the journal. The principles announced in the last cited case were approved in Campbell v. Cincinnati, 49 Ohio St., 463, and we see no good reason why the most important duties enjoined upon boards of education, should be held less imperative than those of no geater importance that are made mandatory upon municipal councils. The authority of boards of education, like that of municipal councils, is strictly limited. They both have only such power as is expressly granted or clearly implied, and doubtful claims as to the mode of exercising the powers vested in them are resolved against them. Clearly, these organizations that derive their existence as bodies politic and corporate from the legislature, cannot be allowed the same latitude in the observance of their statutory duties, as is permitted to the general assembly. Such subordinate bodies corporate are not privileged to treat express and explicit provisions of the statute as only directory, discretionary, because, there are provisions in the constitution that are held directory in their character for the reason that their observance by the general assembly is secured by their sense of duty and official oaths, and not by any supervisory power of the courts. .

It is said, however, that the primary object of the law in providing that the roll of members of the board shall be called publicly, and the names of those voting aye or no recorded, is to determine whether a teacher has been elected by the requisite majority; and that such object is fully attained when such evidence is produced, as appears in the minute book of the plaintiff in error, which contains the record: ‘ ‘ Board met; members all present. Miss Jennie Best was declared elected by unanimous vote for intermediate department. ” Where there is a viva voce vote, taken in the usual way, which is by a call.for all those who are in favor to say aye, and those opposed to say no, without entering at large on the minutes the names of those voting, the presiding officer judges by his ear which side has the more voices. But, if the vote of a, quorum is in favor of a motion or resolution and no vote is cast against it, the record may still be, that it was adopted unanimously, though some of the members present, in fact, abstained from voting. Steckert v. The City of East Saginaw, 22 Mich., 104. To avoid uncertainty, therefore, in determining the conduct of boards of education in transacting such important official business as concerns the purchase or sale of property, the payment of debts or claims, and the selection of teachers who are to stand somewhat in loco parentis in training the minds, and shaping the moral character of their pupils, the general assembly has carefully guarded against ambiguity by prescribing a method of voting which should not be departed from, and in that regard, the rule expres'sio unius, should, we think, be strictly applied.

Steckert v. The City of East Saginaw, supra, was a bill to restrain the collection of an assessment for paving a street. The first ground of alleged invalidity in the proceedings was, that the several votes in the«common council ordering the improvement made, were not taken by ayes and noes, as required by the city charter. The provision of the charter was : ‘ ‘ Whenever required by two members, the votes of all the members of the common council, in relation to any act, proceeding or proposition, had at any meeting, shall be entered at large on the minutes. ’ ’ The record of the meeting of the council gives the names of all the aldermen present. After stating’ the resolutions ordering the improvement, there was this minute, “adopted unanimously on call.” The argument was that the record shows, first, the names of the several aldermen who were present when the action was had; second, that the roll was called on the vote; and third, that each of them, when the roll was called, voted for the adoption of the resolutions. This being so, the vote, it was contended, was in effect entered at large on the minutes, and that the repetition of the names of the aldermen in the minutes would have been only ah idle ceremony, accomplishing no useful purpose.

It was said by Cooley, J., in pronouncing the opinion of the court: “We have found ourselves unable to take the same view of this record-that is taken by the counsel for defendants. There can be no'doubt that the provision of the statute which requires these votes to be entered at large on the minutes, was designed to accomplish an important public purpose, and that it cannot be regarded as immaterial, nor its observance be dispensed with. The purpose,' among other things, is to make the members of the common council feel the responsibility of their action when these important measures are upon their passage, and to compel. each member to bear his share in the responsibility, by a record of his action which should not afterwards be open to dispute.” See also Spangler v. Jacoby, 14 Ill., 297. The same views are similarly expressed in Judge Cooley’s treatise on Constitutional Limitations, as follows: “It is provided in the constitutions of some of the states that, on the final passage of every bill, the yeas and nays shall be entered on the journal. Such a provision is designed to serve an important purpose in compelling each member present to assume as well as to feel his due share of responsibility in legislation; and also in furnishing definite and conclusive evidence whether the bill has been passed by the requisite majority or not.” (6th ed., 168.)

The same doctrine is unqualifiedly approved by-Judge Dillon in his work on Municipal Corporations., after an examination of the authorities supporting the opposite view. Sec. 291 (229).

In Rich v. City of Chicago, 59 Ill., 286, the street improvement was not asked for by the petition of the owners of a majority of the property to be assessed; and in such case, the city charter'declares, that the improvement “shall be ordered only by the votes of at least three-fourths of all the aider-men present, such vote to »be entered by ayes and noes on the record of the common council. ” It was objected that there was no valid ordinance commanding the improvement, or the assessment to be made. The court say: “It does not appear, from the record introduced, or otherwise, that this improvement was ordered by the votes of three-fourths of all the aldermen present, and it appears, affirmatively, that the vote was not entered by ayes and noes on the record. Wé must, therefore, regard the objection as well taken. ’ ’

In Cutler v. Town of Russellville, 40 Ark., 105, it was held, that the weight of authority and the better opinion seems to be, that a requirement that the yeas and- nays shall be called and recorded on the passage by a municipal council of an order or resolution to enter into a contract is designed to accomplish an important public purpose; and hence cannot be reg-arded as immaterial, nor its observance dispensed with. To the same effect are the decisions in Town of Olin v. Meyers, 55 Iowa, 209; Morrison, Administratrix, v. City of Lawrence, 98 Mass., 219, and in numerous other cases involving the same question.

For the aforegoing reasons, the election of the defendant in error by the board of education of the New Concord Village School District, was, in our opinion, illegal and void. And being so, the court of common pleas did not err in taking the case from the jury, and rendering judgment for the defendant below — the board of education. The judgment of the circuit court should, therefore, he reversed, and that of the court of common pleas affirmed.

Judgment accordingly.  