DISSENTING OPINION
By HORNBECK, PJ.I must respectfully dissent from the opinion of the majority.
It should be borne in mind that this action is against members of the Board of Education to recover salary by the Board paid for services rendered by Mr. Kinzer.
Every case must be determined on its peculiar facts. The authorities and opinions of the Attorney General cited are only helpful infprentially. In no instance did the facts presented parallel those found in the instant case. Here, at the time the salary was paid, there was a certificate issued to Mr. Kinzer bearing the date prior to the time when he began his services teaching- school. This is not a case wherein the Board employed a man who was not qualified. Mr. Kinzer was qualified and before payment was made had a certificate to teach the school which he was employed to teach. Of course, the action of the Board in employing him and his action in accepting employment was irregular but in view of subsequent developments neither action was a void action. The situation confronting the Board when Mr. Kinzer was employed is very plain. He did not have the certificate which was the evidence of his qualifications to teach but he had complied with the requirements of the law that he take the examination. He had passed the examination and the difficulty which prevented the issuance of the certificate to him then • probably arose because of the question whether or not he was eligible for another one-year certificate. This was resolved in his favor. . •.
After all, the certificate is but the evidence of compliance with the requisites incident to its issuance. The spirit of the law should not be killed by the letter thereof. The -majority opinion .quotes with approval from page 194 of the case- of School District No. 2 v Dilman, 22 Oh St 194:
“The mischief intended to be guarded against was the teaching of a school by an incompetent person and not the making of a contract by an incompetent person.”
Obviously, this language can have no ■proper application to the facts in this case because the school was not taught by an incompetent person but by one who was qualified according to the statute.
A refusal to require the defendants in this case to repay to the school district the money which was paid to Mrs. Kinzer will, in no wise, establish a precedent which would be dangerous in the administration of school laws. It is doubtful if a case embodying the same facts as are found here will occur again. No-case has come to our attention wherein the law has been invoked to preclude payment to a teacher who before payment had a certificate authorizing him to teach the school which he was employed to teach, bearing a date prior to the beginning of his services.
Let us suppose that this certificate had been prepared by the- Board of Education as soon as the examination papers were graded but its issuance deferred. This condition could have obtained under the facts in this case. Should it be urged that the spirit of the law would require a member of the Board of Education to refund payment made for teaching only after issuance of certificate granting the right to the payee to teach the school for the period of the employment? J think not.
A full and fair consideration of all the record is convincing that substantial justice has been done in this case and the judgment of the trial court should be affirmed.