
    The Board of Education of Canton v. Walker.
    
      Board of education cannot employ teacher for term extending beyond term of members of board — Section bOll, Revised Statutes — Several defenses pleaded to action and demurrer to each — Demurrer overruled by trial court — Circuit court finds error in overruling demurrer as to one defense only— Circuit court should affirm judgment of court below — Pleading's.
    
    1. Under section 4017, Revised Statutes, a board of education cannot lawfully employ a teacher for a term which would expire after the term of office of every member of the board employing him had expired by law.
    2. Where several defenses, each complete in itself, have been pleaded to an action, and demurrer to each of them has been overruled by the trial court and judgment rendered thereon fo-r defendant, and on petition in error the circuit court finds that there was error in overruling the demurrer as to one defense but that the demurrer was properly overruled as to the other defenses, the circuit court should affirm the judgment of the court below.
    (No. 8534
    Decided December 6, 1904.)
    Error to the Circuit Court of Stark county.
    The defendant in error began his action in- the court of common pleas of Stark county against the plaintiff in error* the Board of Education of the City of Canton, to recover damages in the sum of nine hundred dollars alleged to have been sustained by reason of his dismissal from the position of principal of one of the schools of said city. An answer was filed which contained five defenses. A demurrer was filed to the first, third, fourth and fifth defenses, and was overruled by the court of common pleas as to the first, third and fifth defenses and sustained as to the fourth defense. The first defense was, substantially, that the plaintiff was hired subject to the condition that the service of plaintiff might be terminated or dispensed ■ with at any time upon recommendation of the superintendent of instruction and a majority vote of the defendant, and that he was discharged pursuant to such condition, and with full knowledge thereof upon the part of the plaintiff. The third defense was, that the contract set forth in the plaintiff’s petition was one which could not he performed within the period of one year from the making thereof, and that neither the said contract nor any memorandum or note thereof is in writing signed by the party to be charged therewith, or by any other person authorized thereunto by him. The fifth defense sets forth that the board was organized and had its existence under and by virtue of a special act of the legislature of Ohio, passed March 1, 1892, and recorded in 90 Local Laws of Ohio, 450. That by the terms of said law each member of the defendant board shall serve two years, the board to consist of six members, three to be chosen each year for a term of two years. That the defendant board, by the terms of said law, is compelled to reorganize each year, and becomes a new board each year by reason of the fact that three members are required to be elected each year. That the said board, as organized and constituted at the time of the making of the said contract, to-wit: June 26, 1899, had no power, by virtue of any law of the state, to enter into a contract with the plaintiff for a period of two years thereafter, and that the said attempted hiring for the period of two years, as set forth in the petition, was illegal and void, and against public policy. The plaintiff below, after the overruling of his demurrer to the first, third and fifth defenses in the court of common pleas, declined to plead further, and judgment was entered against him for costs, and his petition dismissed. On proceedings in error, the ■ circuit court reversed the judgment of the court of ■common pleas upon the ground that it erred in overruling the demurrer to the said fifth defense, but the circuit court expressly found that the court of common pleas did not err in overruling the demurrer filed by the plaintiff in error to the first and third defenses in the answer. This proceeding is prosecuted to reverse the judgment of the circuit ■court and to affirm the judgment of the court of common pleas.
    
      Mr. Denver C. Hughes, city solicitor, for plaintiff in error. ,
    
      Messrs. Welty S Albaugh, and Mr. J. W. Burris, for defendant in error.
   By the Court.

By the statute, 90 O. L. (Local), 450, the board of education of the city of Canton was made to consist of six members, of whom three were required to be chosen each year for a term of two years. • Thus in two years from the time of its > organization on the third Monday of April the term of office of every member of the board would have ■expired. The board which made this contract was •organized on the third Monday of April, 1899. The contract was made June 26,1899, as alleged by plaintiff, to commence July 1, 1899, and to run two years from that date. But the term of office of every member of the board which made the contract expired before Jhe contract would expire, namely, on the third Monday of April, 1901.

Section 4017, Revised' Statutes, relating to the ■employment of teachers, etc., provides that “no person shall be appointed for a longer time than that for which a member of the board is elected.” The time-“for which a member, is elected” is in this instance two years from the third Monday of April. That is the limit of the teacher’s employment. It may be less. It must not be more. The apparent purpose of the general assembly is to prevent a board of education from continuing a teacher’s appointment for any time after the people may have' completely changed the organization and personnel of the board. We are therefore of the opinion that the board of education was without power to employ a teacher for the term which would expire after the term of office of every member of the board, employing him had expired by law. The circuit court therefore erred in sustaining the demurrer to the fifth defense.

But the judgment of the court of common pleas should have been affirmed on another ground. That court not only overruled the demurrer to the fifth defense, but to the first and third defenses also. The plaintiff declined to plead further and suffered final judgment to go against him. The circuit court found that the court of common pleas did not err in this, and in that we think that the judgments of both courts below are correct. For that reason the judgment of the court of common pleas should have been affirmed. •

The judgment of the circuit court is reversed and that of the court of common pleas is affirmed.

Spear, C. J., Davis, Shauck, Price, Crew‘ and Summers, JJ., concur.  