
    (Clinton County Common Pleas,)
    THE BOARD OF EDUCATION OF RICHLAND TOWNSHIP, CLINTON COUNTY, OHIO, v. JOHN McFADDEN.
    (1) . Where for any reason it becomes necessary, after the third Monday of August in any year, to elect a teacher in a township sub-district, it is the right and duty of the board of sub-directors to elect such teacher and certify such election to the township clerk.
    (2) . When the board of education, at its next regular meeting, fails or refuses to confirm such election, it is its duty to again refer the matter to the board of sub-directors in order that that board may elect and certify “another teacher”; and if the board of education proceeds to elect a teacher without giving the board of sub-directors a reasonable time to call a meeting and make “another” election, its action is illegal.
    (3). When the local board elects and certifies a teacher, and the board of education at its next regular meeting, votes to confirm such election, bur at the same meeting, and on the same day, votes to reconsider its vote to confirm, and no further action is taken upon such'certificate, there is a failure to confirm such election, and the teacher is not legally elected.
   Van Pelt, J.

Prior to the third Monday in August, 1898, the board of sub-directors of sub-district 2, in said township, duly elected a teacher for said sub-district, and certified such election to the township clerk. The board of election met and confirmed such election, and the teacher so elected entered upon his duties and taught until about the middle of October, when it was ascertained that he had no certificate of qualifications from the board of county examiners as required by Revised Statutes, section 4074, and he ceased teaching. Thereupon a meeting of the board of sub-directors was called for the purpose of electing a teacher for said sub-district. At that meeting all the members of the board of sub-directors were present, and the defendant by a majority vote was duly elected as such teacher, and a certificate of such election in due form was filed with the township clerk, as clerk of the board of education. The board had no standing committee on teachers as required by section 3920, (93 O. L., 46).

On October 17, 1898, the board of education met in regular session, all the members being present. The defendant’s certificate of election was presented to the board and a vote was taken on a motion to confirm, which was carried by the unanimous vote of the board. It appears from the oral testimony, that after the motion to confirm was carried, it was suggested by a member that it was doubtful whether the defendant had sufficient experience as a teacher to enable him to teach the school in ■ that sub-district successfully. This suggestion was discussed in the board, and was followed by a motion to reconsider the vote and action of the board upon the motion to confirm. The motion to reconsider was carried by a vote of four to two. Following this, vote to reconsider, it does not appear from the minutes of that meeting that any further vote or action was taken on the original motion to confirm, but another teacher, a Mr. Stratton, who was present at the meeting, filed with the board of education an application for the school in said subdistrict.

It appears from the oral testimony that the local director from said sub-district, who was a member of the-board of education, objected to said beard’s proceedings to elect, and insisted that the matter be again referred to the board of sub-directors to elect another teacher; but, notwithstanding this objection, the board of education proceeded to act upon Mr. Stratton’s application. A motion was made and seconded that he be elected to finish the unexpired term, and on this motion the beard divided evenly. Three voting for and three against. The township clerk then gave the-casting vote in the affirmative and Stratton was declared elected. Some ether business was transacted and the meeting adjourned. The defendant claimed that in as much as his election had been in the first instance confirmed by the board, and that as no.further action was taken on the motion to confirm, after the motion to reconsider was carried, he was in faot confirmed, and, having in some manner procured the key to the school house, he took possession on October 18th and commenced teaching. Thereupon a special meeting of the board was called for and held on October 22, 1898, to take action in the matter. At this meeting a motion was made and carried to correct the minutes of the former meeting so as to show that there was in fact a refusal to confirm the defendant after the vote to reconsider, and that the director from said sub-district had requested further time for the local board to elect another teacher, which was refused. The special meeting, however, was not legally held, as the evidence shows that proper notice thereof was not given to all the members of the board, and one of the members was not present. The action of the board a.t this meeting was not, therefore, legal, and the case must stand upon the record of the first meeting and such oral evidence as has been admitted. After this special meeting the defendant was notified by the board to cease teaching, but he continued to teach until the second day of December, when he was enjoined in this proceeding. On this state of facts the question is: Was the defendant duly elected to teach said school?

Section 3918, as amended March 11, 1898, (93 O. L., 46) provides that ■“the board of sub-directors shall hold regular sessions on the third Saturday of April and August, and may meet as frequently as they deem necessary for the purpose of electing teachers.”

Section 4017, (93 O. L., 48) provides as follows: ‘‘In township districts, divided into sub-districts, the board of sub-directors shall elect the teachers in their respective sub-districts, but such election shall be subject to confirmation by a majority of the board of education. Wene-ver any board of sub-directors elects a teacher, the director thereof shall at once file certificate of such election, signed by at least by two members of such board, with the township clerk who shall refer such certificate of election tc 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 fails tc 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 any 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”.

As the vacancy in the position cf teacher for sub-district 2, in this case, occurred after the third Monday in August, the clause of the above section relating to the power of the board of education to elect, if there is a failure of the board of sub-directors to elect 'before that date, can have no application. There was no failure to elect before that date. The local board did elect, and the board of education confirmed such eleotioa; but it was subsequently ascertained that the person elected had no certificate of qualifications. This unexpected turn of affairs made further action necessary. The board of sub-directors, under the sections above quoted, were right in assuming that it was the duty of that board to take the initiation in electing a new teacher, and proceeded properly in ca ling a meeting for that purpose, and in certifying the election made to the township clerk. As the board of education had no standing committee on teachers, the clerk did right in refering such certificate tc the board itself, and that board did right in taking up the matter for action at its next regular meeting on October 17. The board, as above stated, first voted to confirm the election of the defendant, and then at the same meeting, on the same day, voted to reconsider the matter. What was the effect of this vote to reconsider? In the supplement to the Encyclopedia Británica, under the heading “Parlimentary Practice”, it is stated that ‘‘the motion to reconsider is intended to bring back before the house a question that has been decided, and to place it before the house, just as it stood before the vote was taken upon it”.

In the Standard Dictionary the word ‘‘reconsider”, as used in parliamentary procedure, is defined as follows: ‘‘To restore a matter on which a vote has been taken to parliamentary action. A motion to reconsider is usually made by one of the majority that voted on the matter in question, and if it is passed, the original question is then before the house for action as if no vote had been taken on it.”

In Cushing’s Manual, section 256, it is stated that when amotion to reconsider prevails “the matter stands before the assembly in precisely the same state and condition, and- the same questions are to be put in relation to it, as the vote considered had never been passed.”

W. H. Hartman, for Plaintiff.

G. C. Barnes and Smith & Savage, for Defendant.

Under the rules of parliamentary procedure, a motion tc reconsider may be made on the same day the original vote is taken or on the next succeeding day. Without multiplying authorities upon the question, it is clear that when the board of education in this case passed the motion to reconsider the vote to confirm the election of the defendant, it did away with the vote to cofirm, and left the matter standing in precisely the same position as if nc vote had ever been taken on the motion to confirm. The beard should then have taken another vote upon the question, but so far as the authentic record cf its action shows, it did not do so. It passed at once to the consideration of Mr. Stratton’s application, without again voting on the original question, and without referring the election again to the board of sub-directors. The original motion to confirm the election cf the defendant, McFadden, remained undisposed cf. This was a failure to confirm and the further action of the board plainly indicated its purpose net to confirm, but to refuse to confirm his election. He was, therefore, not. legally elected as teacher of said school, and his subsequent action m taking possession of the schcolhouse and teaching the school was without legal right or authority. On the failure to confirm the eleotion of the defendant, the matter should have been referred to the board of sub-directors upon whom the statute confers the right to elect “another teacher” on the failure of the board of education to confirm the election first made (section 4017); and it became the duty cf the board of sub-directors under section 3918 to call a meeting for that purpose. The fact that this would cause some delay in electing a teacher could not affect the right of the beard of sub-directors to make a second choice of a teacher, nor confer upon the board of education the pewer to take the matter out of the hands of the local board without giving that board a reasonable time to call a meeting and make another election.

In the oase of the state of Ohio ex rel. Milton Hunt v. The Board of Education of Wilson Township, 5 Nisi Prius Report, 446, recently decided by this court and ccmmonly referred to as the Blcomington case, the facts were that the local board elected and certified a teacher and the board of education refused to confirm. The board of sub-directors then refused to elect “another teacher”, but re-elected and re-certified the same teacher. This, the court held, was not the exercise of the right of a second choice, but a stubborn adherence to the first; and such unwarranted action by the local board, was a failure to elect, and gave the board of education the undoubted right tc employ. In the case now before the court, the board of education refused to give the beard of local directors an opportunity to eleot “another teacher” on the failure to confirm the first election; and in so doing the board of education exceeded its power, ignored the plain statutory right of the local board and its action in electing Mr. Stratton was illegal. In the Bloomington case the board of sub-directors failed to perform its duty, when it refused to elect another teacher — in this case the board of education failed to perform its duty, when it refused to give the local board an opportunity to make a second election. In that case the board of education did right in proceeding to elect, in this case it did wrong. There is no legally elected teacher in sub-district 2, and the injunction against the defendant is made perpetual.  