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Licking Circuit Court.

3. EMPLOYMENT OF TEACHERS NOT HAVING A CERTIFICATE.

Under the section of the statute requiring that boards of education shall not

employ teachers without having a certificate to teach the branches, does not render invalid a contract for employment made with a teacher before he obtains the requisite certificate, provided he obtains it before entering upon the duties

of his employment. 4. SUIT BY TAXPAYER. A taxpayer may commence a suit to restrain a board of education from doing an

illegal act, and sections 1277–8 and 1777–8 of the Revised Statutes do not apply to such action.

Appeal from the Court of Common Pleas of Licking county. POMERENE, J.

This case was heard upon a motion to suspend the injunction which had been made perpetual by the decree of the court of common pleas.

The petition in the case charges, or sets forth, that one Prof. Rusk was employed in 1895, by the board of education of this school district, for a period of two years. That he served one year as teacher and received his pay therefor, and was about to enter upon a second term of the school year, commencing September, 1896. That the board of education, as now constituted, has attempted to employ a man by the name of Green to act as superintendent, and threatens to interfere with Rusk acting as superintendent of the schools for the year 1896-7, and prays for an injunction that they may be restrained—the board of education and Green-from in any manner interfering with Rusk in his superintendency and management of the schools for that year.

Now, to this petition there is an answer, which admits two averments of the petition, and denies each and every other allegation of the petition.

The answer is very broad, and, perhaps, deuies more than it was intended to deny. It goes to the extent of denying that these plaintiffs are taxpayers and residents of this school district. It denies the employment of Rusk in 1895 for the period of two years. It denies that Rusk taught or superintended for a period of one year. That is a general denial to each that far. It denies that he entered upon his duties as superintendent. Denies that the board of education had prescribed certaiu rules of study for said school, and denies that Green or the board of education in any way attempted to interfere with Rusk as superintendent of the schools; but admits the facts, as averred in the petition, that, at the time of the employment of Green, the clerk of the board had not certified that there was money in the treasury to pay, or that a levy had been made to pay, for the services of a teacher.

This is submitted upon a motion to suspend the injunction which had been allowed.

To make the injunction perpetual, would leave Rusk in the control and management of the schools, as superintendent.

To suspend the injunction, would leave the school in the management and control of the board of education of the Pataskala school district.

We regret very much that a case of this kind is in this court, because no conclusion that this court can arrive at will render satisfaction to all the parties or that district, or can produce harmony in that school district. These quarrels arising in a school district cannot do much else than result in harm. Yet, the court has nothing to do with that. It has

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Youmans et al. v, Board of Education et al.

to pass upon this question as we think the law fixes the rights and powers of the parties.

We were cited by counsel for the plaintiffs to the case of Commissioners v. Pargillis, 6 C. D., 717; and we think the syllabus of the case would apply to this case, and to all cases of this kind.

“In the distribution of powers under the constitution of Ohio, certain political and civil powers are vested in certain public bodies, and these bodies, in the exercise of their powers, cannot be interfered with by other bodies or the courts.

"Courts, however, have the power to enjoin when such bodies or officials are proceeding to make illegal contracts, and to some extent to interfere where there is a gross abuse of power. But courts have no power to set their opinion or discretion against that of the body or officials acting within the scope of their powers."

I read that because it was cited by counsel for the plaintiffs, and we think that the principles laid down there are applicable to this case, and which we fully endorse.

The control and management of the schools of this state are given the boards of education, given by the statute to the boards of education, and these boards cannot be interfered with in any manner by the court unless there is a gross abuse of the discretionary powers given.

One of the powers given to the board of education is to employ teachers. Another is to provide necessary facilities for the school. Another is to regulate a course of study. That may be done by boards of education, and we think that the legislature has vested that power in the board of education, and that cannot be interfered with by courts, unless there is seemingly a gross abuse of discretion.

Now, how does this case stand, as shown by the testimony ?

It appears from the affidavits, and from the record, as introduced by the parties for the motion, that this man Green was employed on the 28th day of May, 1896, for the period of one year, at the salary of eighty dollars per month. The minutes of the board of education were introduced in evidence, and read and show this :

“The board met; all present; minutes read and approved; it is moved that we now proceed to the election of a superintendent. On motion E. W. Green was elected superintendent at a salary of eighty dollars per month. Yea: Ashbrook, Hawley, Edgerley and Framble: 4. Nay: Atkinson and Smith: 2. Clerk's salary fixed at ten dollars for last year and fifteen dollars for the present year."

Here it appears, that there was a majority of the board of education as thus constituted, and by a vote of four to two, this man Green was elected superintendent for the ensuing year.

Is this act illegal?

It is claimed that this was not in accordance with the rule laid down by the supreme court in the case of Board of Education v. Best, 52 0. S., 138, inasmuch as it does not state that the roll was called in pursuance of section 3982.

It is true that it does not state that the roll was called; but, by reading that case through, it clearly shows the yea and nay vote; and we think it is a substantial compliance with section 3982, and is so construed by the supreme court in the case named.

Another question is raised, that the appointment was illegal at the ime of the employment of Green; that he had not a certificate, under the section of the statute requiring or stating that boards of education

Henry Circuit Court.

shall not employ teachers without having a certificate to teach the branches.

In School District No. 2, Oxford Township, Butler Co. v. Dilman, 22 O. S., 194, it is laid down as the rule that if the certificate is obtained before the time of commencing the school labor, that is sufficient.

There are some other questions that are claimed on the part of the motion here; that this petition is insufficient from the fact that these taxpayers cannot maintain this suit. And we are cited to section 1277-8 and section 1777-8 of the statute.

We do not think that either of these sections apply to this kind of a case. Sections 1277 and 1278 apply to the funds of the county. The prosecuting attorney may act, and on his failure, after being requested, any taxpayer may, etc.

Sections 1777 and 1778 apply to municipal corporations; but neither one of these sections have any application here; and a taxpayer may commence a suit to restrain the board of education from doing an illegal act and authority would be found for such a construction in the case of Weir v. Day et al., 35 O. S., 143,

Being of the opinion that for this court to interfere with the action of the board of education in the management of the schools in a matter that particularly belongs to them by statute, is something that this court has no right to do, this motion is sustained.

J. B. Jones and Fulton & Fulton, on behalf of Jacob S. Youmans et al.

Edward Kibler and John David Jones, on behalf of the Board of Education, etc.

SETTLEMENT OF ESTATES_SUBROGATION.
(Henry Circuit Court, October Term, 1896.)

Day, Price and Rohn, JJ.
AARON F. COREY, ADMR., V. HANNAH HAYES.
1. DECEDENT'S DEBTS BECOME A FIRST LIEN ON HIS REAL ESTATE.

The debts of a decedent and all proper charges and allowances, in the absence

of sufficient personal property for their payment, become a first lien on his real estate, prior to the rights of heirs or legatees, and whatever right or title

descends to them is encumbered by and subject to this lien. 2. SUBROGATION BY OPERATION OF LAW.

Subrogation by operation of law takes place whenever one person, pot priCorey, Admr., v. Hayes.

marily liable and not a volunteer merely, becomes liable for, and pays a debt which is a first lien on real estate, and on which others, as heirs and owners

of the real estate, by inheritance, are also bound. 3. DECEDENT'S WIDOW SUBROGATED TO THE RIGHTS OF THE ADMINISTRATOR, WHEN. Where an administrator institutes a proceeding to sell the real estate of the de

cedent to pay all proper charges and allowances, and the widow having a dower interest in such real estate gives a bond properly executed under the provisions of section 6146, Rev. Stat., for the purpose of avoiding the sale of such real estate, and afterwards pays to the administrator the amount of all valid claims and debts of the decedent: Held, that such widow is not a mere volunteer, but is personally and directly interested in the real estate, and is therefore entitled to stand in the place of the administrator with respect to a lien against the real estate of the decedent, to the end that she be saved from any loss and the debts fully discharged from the rightful source.

ERROR to the Court of Common Pleas of Henry county.

The original proceeding was in partition. The prayer of the petition was for partition of the real estate of Thomas B. Hayes, deceased, between those entitled, and the assignment of dower to his widow, Hannah Hayes. The widow made answer, waiving dower interest in money. Such proceedings were had that the lands were sold, free of dower, for the sum of $7,030.00, and the question which is brought here arises on the distribution of the proceeds of the sale among the various persons entitled.

The defendant, Hannah Hayes, having obtained leave, filed a supplemental answer, or cross-petition, setting up, substantially, the following facts: That Thomas B. Hayes, deceased, left the real estate described in the petition, and very little personal property, and an indebtedness of more than $700.0C; that the personal property was wholly insufficient to pay the debts, allowance to the widow, and charges of administration. That A. F. Corey, as administrator, had commenced an action in the probate court of Henry county, the purpose of which was to procure an order to sell the said real estate to pay the debts, allowance to the widow for support, and charges of administering the estate; that in order to avoid the necessity of such sale, defendant, with Belle Hayes and two others, as sureties, under the provisions of section 6146, Revised Statutes, gave a bond to the said administrator, in the sum of $1,500.00, conditioned for the payment of such debts, allowance and charges; that said bond was approved, with the sureties, by the probate court, and the administrator withdrew his application for an order of sale, and none was made; that by the giving of said bond she became liable for the payment of said debts, charges, etc., and subsequently, in good faith, as required by the conditions of the said bond, she paid to said administrator, in satisfaction of all the valid claims and debts of said estate, the sum of $762.29, for which she produces and annexes to her answer, the receipt of the administrator. She further shows the lands have been sold, and the proceeds are in the court for distribution according to the rights and priorities to be determined, and her prayer is, that she be subrogated to the rights of the administrator in the fund arising from said sale, and that she be reimbursed from said fund.

A demurrer to this supplemental pleading was overruled, and there being no wish to further plead, the court of common pleas entered judgment on the demurrer, decreeing subrogation, and ordering the said sum of $762.29 paid to her out of the proceeds of said sale. This action of the court is complained of, and a proceeding in error is instituted to procure a reversal. DAY, J.

The only question presented is as to the propriety of the holding and judgment of the court on the demurrer, and is : Do the facts stated in the supplemental pleading entitle Mrs. Hayes to be considered in place of the administrator and subrogated to his rights?

It seems quite obvious this question should be answered in the affirmative. Under the law, the debts of a decedent and all proper charges and allowances, in the absence of sufficient personal property for their payment, become a first lien on his real estate, prior to the rights of heirs or legatees, and whatever right or title descends to them, is encumbered by and subject to this lien. No substantial estate vests in the heir

7 Dec. 18

Henry Circuit Court.

or legatee until the valid debts and all proper allowances and the charges of administration are provided for; and, if necessary, an executor or administrator may even divest the heir of title absolutely, by a sale for this purpose. A proceeding having for its purpose such a sale, was instituted in this case by the administrator when the widow, Mrs. Hayes, and one or more of the heirs, for the purpose of obviating the necessity of a sale under the express provisions of the statute, intervened and in effect, in law and equity, became sureties for the payment of such debts and charges, and as such surety the defendant in error paid them in full to the administrator. She was not a mere volunteer in the matter, as urged by counsel in argument, but was personally and directly interested in the real estate, and the heirs as well, and what she did was for her own and their benefit. It would seem that she ought to be saved from any loss on account of her good offices in their behalf, and it the law will not afford relief, that now, if ever, is a fitting and proper occasion for the application of the equitable principle of subrogation. Subrogation, it is said, is a doctrine of equity, and was invented for the express purpose of aiding and helping out where the law would be insufficient and unable to accomplish exact justice, and takes place by operation of law, whenever one person, not primarily liable and not a volunteer merely, becomes liable for and pays a debt which is a first lien on real estate, and on which others, as heirs and owners of the real estate, by inheritance, are also bound. As we have seen, Mrs. Hayes was not a volunteer. She was interested in the property and in the heirs, and presumably for the good of all concerned, she became liable for all the debts, for which the heirs through the property, were also bound. She became so bound with the heirs, and in virtue of the condition of the bond, paid their debt out of her own means to the administrator, who had the right to enforce the lien against the real estate. She is entitled to stand in the place of the administrator with respect to a lien against the real estate of the decedent, to the end that she may be saved from loss and the debts fully discharged from the rightful source.

The administrator, the debts being otherwise unprovided for, under the provisions of section 6173, Revised Stasutes, might come into a partition proceeding and have an order of the court requiring a sufficient amount of the proceeds of a sale in partition, paid to him to discharge the debts of the decedent; and it does not seem to us to be at all a violation of either the spirit or letter of that law, to allow a widow, who, being interested and liable, furnishes the administrator the wherewithal to pay, to come into court in a similar way and be reimbursed and made whole for her outlay.

We find there was no error and the judgment is affirmed.
Cahill & Donovan, for Plaintiff.
Martin Knupf, for Defendant.

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