State ex rel. Werden v. Williams

| Ohio | Dec 15, 1876

Rex, J.

It is claimed by counsel for the relator, and assigned as a cause for the reversal of the judgment in this case, “ that the. district court erred in holding, as a matter of law, that the written contract between the relator and the local directors of sub-school district No. 8, as modified by the verbal agreement of January 2, 1875, between the ■same parties, was contrary to public policy and void, and •ought not to be enforced.”

It must be conceded that, under the provisions of the act of May 1, 1873, for the reorganization and maintenance of common schools (70 Ohio L. 185), and the amendments thereto, the local directors of a township school district are not authorized to permit any person to teach, or assist in teaching, a public school under their control, unless employed by them for that purpose. They have no power to delegate the employment of teachers for such schools to any other person or persons, nor to provide for the payment of a teacher thereof in any other manner than that pointed out in the last clause of section 58 of the act above referred to; It follows, therefore, that the written contract of November 30, 1875, between the local directors of the sub-district named and the relator was illegal and void in so-far as it provided for the employment and payment of an assistant teacher by the relator, and for the payment to the relator of a certain sum per month for his services and those of his assistant as teachers of the school.

Section 53 of the act above cited provides, “ That in each-township district the local directors shall employ teachers of the schools in the sub-district in which they reside,” “ have power to fix the salaries or pay of said teachers,” and “ shall certify the amount due any teacher for services' to the township clerk,” etc.

The verbal agreement of Janirary 2, 1875, in effect revoked the illegal and void provisions contained in the written contract of the preceding November, and although it also contained provisions which the local directors had no power or authority to make, the authorized parts of it were so separate and distinct from the unauthorized parts, that the parties thereto were enabled to and did perform those parts of the agreement which the local directors had. aut hority to make, without performing any of the unauthorized portions thereof.

We are, therefore, of opinion that the court erred in holding that the facts set out in cause three of the defendant’s return were sufficient to avoid the writ; in refusing to-order a peremptory writ to compel the defendant, as such clerk, to issue to the relator the order demanded, with interest on the amount certified to be due to him from March 6, 1875, and in rendering judgment against the relator for costs.

Motion granted, and judgment reversed.