
    The State of Ohio, ex rel. James W. Rider, v. Daniel Lynch, as Treasurer of Liberty Township, in Seneca County.
    Where a township board of education had resolved to sell the old site of a sub-district school house, and had purchased a new site, and, notifying the local directors of the sub-district of their action in the premises, instructed them to sell the former, and to build a new school house on the latter, and the local directors, disregarding such instructions, proceed to build a new school house on the old site and keep up a school therein: Held—
    1. That the local directors are guilty of such insubordination and neglect as justify the township board of education in exercising the powers and duties which would otherwise devolve on the local directors, and in building a school house on the new site and employing a teacher therein; and such teacher is entitled to be paid his wages out of the township treasury, on the order of the township board.
    
      2. The fact that, prior to the issue and service of an alternative writ of mandamus, to compel the township treasurer to pay the order aforesaid, the term of office of such treasurer had expired, and all the funds in his hands had, in good faith, heen paid over to his successor in office, is, as to him, a good answer in law to the alternative writ.
    This is an application for a peremptory mandamus to enforce the payment of wages to the relator for teaching school. The agreed statement of facts is substantially as follows:
    In the early part of the year 1857, the township board of education of Liberty township, in Seneca county, determined to build a new school house in sub-district No. 2 of the township, and selected and purchased a site therefor, and instructed the local directors of the sub-district to build the house on the site so selected, and also to sell the old school house and site.
    The local directors of the sub-district proceeded to build the new school house, but refused to erect it upon the site selected by the township board, but claimed the right to select the site therefor themselves, and desired to build the new house upon the site where the old school house of the sub-district stood; and did build it there, in the summer of 1857, having sold the old house, but not the old site.
    The local directors thus refusing to build the house on the lot selected by the township board, the latter proceeded, contemporaneously with the local directors, and built a new school house there, and paid for it out of the funds provided by said board for that purpose, but refused to pay for the house built by the local directors, having notified the contractor who built it, before he commenced to do so, that they would so refuse.
    In the autumn of 1857, the local directors employed a teacher to teach the common school of the sub-district, in the new house they had built, and made all other necessary provisions for the school in that house, but refused to have any school kept in the new house built by the township board.
    
      Thereupon, and because of such refusal, the township board employed James W. Rider, the relator, to teach a school for the sub-district, in the house they had erected on the new site, and made all other provisions for the school in that house.
    The two school houses are about three-fourths of a mile apart, in the same sub-district.
    The teacher employed by the local directors taught the school, during the winter of 1857-8, in the house they had built; and, in the spring of 1858, at the expiration of his term, made his report, got a certificate from the local directors of the amount due him for wages as teacher, and got an order for the amount from the township clerk, on the defendant Daniel Lynch, as treasurer of the township, and presented the order and received from him, as treasurer, the amount it called for.
    During this same winter of 1857-8, Rider, the relator, with full knowledge of the action of the local directors in keeping up a school as stated, in pursuance of his employment by the township board, taught a school in the house the latter built, and, in the spring of 1858, at the expiration of his term, made his report, and the township board certified to their clerk, that there was due to Rider, for teaching, the sum of eighty-eight dollars. Rider got the clerk’s order on the township treasurer for said sum, and presented the same to the defendant, as treasurer, for payment, which, at the order and request of the local directors, was refused, although there was sufficient funds in the hands of defendant, as treasurer, to pay it, and subject to be drawn for that purpose.
    Both teachers- presented their respective orders on the 6th of April, 1858, but Rider’s was presented at an earlier hour than the other teacher’s.
    It is agreed that one school was sufficient for the sub-district.
    In answer to the alternative writ of mandamus, issued on April 25th, 1858, the defendant alleges that on the 5th day of April, 1858, his successor iu office was duly elected, and, within ten days, qualified; and that on the 16th day of April, 1858, being before the alternative writ was issued, the defendant paid over to his said successor all the funds in his possession or control as township treasurer.
    
      John G. Lee, for the relator.
    
      James Pillars, for defendant.
   Brinkerhoff, J.

The claim of the relator to be paid his wages, as a teacher, out of the township treasury, depends on the question whether the township board of education had the rightful authority, paramount to any authority of the local directors, to determine the precise locality of the school within the sub-district, and to prescribe to the local directors the particular place within the sub-district in which the school should be kept. If the township board had such authority, then the local directors of the sub-district, in persisting in building a school house, and causing a district school to be kept upon the old site after they had been duly notified of the determination of the township board to sell the old site, and to have a school house built upon the new one which had been purchased for that purpose, were guilty of acts of insubordination and neglect, which gave the township board a perfect legal warrant, under the provisions of the thirteenth section of the act of March 14, 1853, “to provide for the reorganization, supervision and maintainance of common schools,” to exercise all the powers otherwise conferred on the local directors, and, of course, to. employ a teacher, and to draw an order on the township treasurer, in his favor, for the amount of his wages.

Section 1, of the act above referred to, provides:

“ That each and every organized township in the state shall compose hut one school district for all purposes connected with the general interests of education in the township, and shall he confided to the management and control of a board of education, and the several school districts and fractional parts thereof, which now are or may hereafter be established in the several organized townships of the state, shall be regarded as sub-districts, and be confided to the management and control of local directors, as hereinafter provided,” etc.

Section 6 provides:

“It shall be the duty of the school directors in each sub-district to take the management and control of its local interests and affairs, and to employ teachers, to certify the amount due them for services, to the township clerk, who shall draw an order on the township treasurer for the amount, and to dismiss any teacher, at any time, for such reasons as they may deem sufficient,” etc.

Section 7 provides:

“It shall be the duty of the directors, in their respective sub-districts, to negotiate and make, under such rules and regulations as the township board of education may prescribe, all necessary contracts in relation to providing fuel for schools, repairing, building or furnishing school houses, purchasing or leasing school house sites, renting school rooms, and making all other provisions necessary for the convenience and prosperity of schools within their sub-districts,” etc.

Section 11 provides :

“ The said township board of education in each township of the state, and their successors in office, shall be a body politic and corporate in law; and as such, may contract and' be contracted with, sue and be sued, plead and bo impleaded, in any court of law or equity in this state, and may receive any gift, grant, donation or devise, made for the use of any school or schools within their jurisdiction; and, moreover, they shall be and hereby are invested in their corporate capacity with the title, care and custody of all school houses, school house sites, school libraries, apparatus or other property belonging to the school districts as now organized, or which may hereafter be organized within the limits of their jurisdiction, with full power to control the same in such manner as they may think will best subserve the interests of common schools and the cause of education; and when, in the opinion of the board, any school house or school house site has become unnecessary, they may sell and convey the same in the name of the township board of education of the proper township ; * * * * * and all conveyances of real estate which may be made to said board, shall be to said board in their corporate name and to their successors in office.”

Section 13 provides:

“ That, * * * * * it shall be the duty of said board of education to exercise all the powers conferred on local directors in respect to sub-district schools, whenever such local directors shall neglect to discharge their duties in any sub-district as required by this act,” etc.

Section 14 provides:

“ The said board shall prepare, or cause to be prepared, a map of their township, as often as they deem necessary, on which shall be designated the sub-districts of the township, which they may change or alter at any regular session, and the number of scholars assigned to each; but no sub-district shall contain within its limits less than sixty resident scholars, by enumeration, except in cases where, in the opinion of the board, it is necessary to reduce the number; and it shall be the duty of the board to establish a school in each sub-district of the township, of such grade as the public good in their opinion may require; and in the location of primary schools, or schools of higher grade, the board shall have reference to population and neighborhood, paying due regard to any school house already built, or site procured, as well as to all other circumstances proper to be considered, so as to promote the best interests of schools.”

These are the only clauses of the statute to which our attention has been called in argument, and it is believed they are the only ones which have a bearing upon the point in question. And it must be admitted that they are not very specific nor entirely satisfactory in their provisions. Net when we take into consideration the fact that this act abolished and superseded a system of independent local school districts within the township, and look at its genera,! scope and policy, it is evident that the legislature intended to render the powers and duties of the local directors subordinate, in no inconsiderable degree, to the authority and discretion of the township board.

By the eleventh section, “ the title, care and custody of all school houses and school house sites, with full power to control the same,” are vested in the township board; and by the fourteenth section, it is made the duty of the township board to “ establish a school in each sub-district,” and, “in the location of primary” and other “schools,” they are to have reference to population, neighborhood, to school houses already'built, “ as well as all other circumstances proper to be considered.” Now, in order to the exercise of the power herein granted; to exercise the care, custody and control of school houses and school house sites; in order to establish a school in each sub-district, and to do anything “ in the location ” of the same, and in order to prevent a conflict of authority which would be productive of anarchy and its consequent mischiefs, it seems to us necessary that the township board should have the power to designate the particular place where school houses shall be built, and where schools shall be kept, and that this power, if not expressly conferred, follows by fair and reasonable implication from the grants of power expressly made.

By section 11, power is expressly conferred on the township board “ to sell and convey any school house or school house siteand we think that when the local directors persisted in building a school house, and keeping up a school on the old site, and in refusing to build upon the new site, after the township board had notified them of its resolution to sell the former, and after it had required and directed them to build upon the latter, they were guilty of a degree, not only of neglect, but of insubordination, which justified the board in assuming all the powers and duties which would otherwise have devolved upon the local directors.

We are of opinion, therefore, that the relator, on the agreed statement of facts, is entitled to be paid his wages out of the township treasury, on the order of the township board; that when such order was presented to the defendant, he ought to have paid it; and that, provided the facts remain substantially as agreed on in the present case, it ought now to he paid, on presentation, by his successor.

But, it appears that, before the issuing and service of the alternative writ in this case, the defendant’s term of office as township treasurer expired, and, a successor having been elected and qualified, he paid over to that successor all the public funds in his hands. This seems to have been done in good faith. He is proceeded against in his official capacity, to reach funds in his hands belonging to the public; and we are clear that, under these circumstances, the fact that he has paid over all such funds to his lawful successor, is a good defense to this writ, and that the relator must be left to assert his rights against the defendant’s successor in office.

Motion for peremptory mandamus overruled.

Swan, Scott and Sutlle'I', JJ., concurred.

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