dissents:
I feel so firmly committed to the proposition that the majority opinion affirming the trial court is improper, that I feel constrained to give my reasons for such dissent, rather than merely noting same.
I am in full accord with the statement of the case as presented in the early pages of the majority opinion, and hence I take up further discussion immediately following the paragraph referring to the testimony of Mr. Aultman and Mr. Hollingsworth relating to the time that the certificáte was actually signed by the three members of the Board of Examiners.
No witness testifies that a teacher’s certificate was delivered to Mr. Kinzer at any time, following his examination on April 2, 1927. This failure to de*197liver was not a mere inadvertence; it was designedly and intentionally withheld. This conclusively appears from the testimony of Mr. Aultman that he marked it “delayed” so it would not be delivered and the further uncontradicted testimony that Mr. Kinzer with patrons of the school, including some members of the Board, appeared before Mr. Aultman demanding the certificate and that it was refused. The present record also shows for the first ffcime Mr. Kinzer’s grades on all subjects and. that they were such as were ¡passing. Mr. Aultman testifies that the certificate was withheld for the reason that they desired to interrogate Mr. Kinzer further on some misconduct or violation of ethics relative to Eighth Grade examinations. Mr. Kinzer refused to come in and be interrogated. Mr. Aultman says that he took this step after first consulting the State School Superintendent.
This brings us to the question as to whether or not the signing of the certificate by the Examining Board, not delivered but intentionally withheld, would constitute the issuing of a certificate as required under §7830 GC. This section reads as follows:
“7830. Elementary certificate; branches qualified to teach. No person shall be employed or enter upon the performance of his duties as teacher in any elementary school supported wholly or in part by the state in any school district who has not obtained from a certifying authority having legal jurisdiction a certificate of good moral character; that he is qualified to teach orthography, reading, writing, arithmetic, English grammar and composition, geography, history of the United States, physiology, including narcotics, literature and elementary agriculture, and that he possesses an adequate knowledge of the principles of teaching; except as provided in sections * * * .” (Emphasis mine).
It is my conclusion ■ that under the undisputed facts Mr. Kinzer did not obtain a teacher’s certificate following his examination on April 2, 1927, and hence he had no right to be employed or enter upon his duties as a teacher in the elementary schools of Xenia Township School District.
The Supreme Court of Ohio in 1871, in the case of School District etc. v Dilman, 22 Oh St 194, construes the above section as expressed in the first syllabus:
“1. The provision in section 7 of the school law, passed March 14, 1864, that no person shall be “employed” as a teacher unless he has first obtained the certificate required by law, does not render invalid a contract for employ-made with the teacher before he obtains the requisite certificate, provided he obtains it before entering upon the duties of his employment.”
I think from the above-quoted syllabus the inference conclusively arises that a teacher must have obtained a certificate before he starts on his teaching employment.
In our first opiinon we stated that if a certificate was improperly withheld from an applicant, he might have an action in mandamus. I still adhere to that principle. Of course, in order to support such a claim in mandamus proceedings, it would be necessary to show that there was some direct violation of law by the Board of Examiners or an abuse of discretion. I have no difficulty in determining that neither the teacher nor the hiring board may take this matter into their own hands and determine whether or not the Examining Board violated the law or abused their discretion. So long as the teacher and the employing board take no appropriate action to’ compel the issuing of the certificate, the law will say that such teacher has not obtained a certificate.
The Legislature has gone to great lengths in seeking to prevent any teacher from receiving or accepting teaching employment unless he has obtained a teacher’s certificate. Sec. 78X7 GC among other things, contains the following provision:
*198“In no case shall the board * * * antedate-any certificate.”
The action of the Board of Examiners in attempting to give life to this so-called delayed certificate is in direct violation of the spirit, if not the words, of the above-quoted portion of §7817 GC. In effect it was antedated notwithstanding that it was signed by the Examining Board within two to four weeks folowing its date.
The mere signing of an instrument does not give it life. In the instant case the Examining Board did not so intend, but positively and directly stated that they intended otherwise. According to the testimony of Mr. Aultman he had no further interest in withholding a certificate after the death of Mr. Kinzer. There is no evidence of any Examining Board’s action through which it was sought to set aside their original determination to withhold and thereafter give it life.
Counsel for defendants present the argument that §7786 GC contemplates that the certificate shall be left in the hands of the Superintendent of Schools and that since the Superintendent is also ex-officio secretary of the Board of Examiners, thereby the certificate was on file with the Superintendent and that the manual delivery to -Mr. Kinzer was not necessary. This might be true under circumstances where the certificate was duly issued and placed in the Superintendent’s hands in intended compliance with the Code, so he might duly certify to the clerk of the Board of Education such fact as a predicate for payment of salary. That was not the situation in the instant case. At the time Mr. Kinzer was teaching the so-called delayed certificate was not in the hands of the County Superintendent as such and for the purpose of certifying to the School Board. It was not issued at all but intentionally withheld, and Mr. Kinzer with other patrons of the school was advised that the certificate would be withheld and not delivered.
It is my conclusion that the additional facts presented in the present record give added reasons in support of our first finding rather than demand a contrary holding. In the original case we had to indulge presumptions to determine intentions, whereas in the present record the more complete testimony as to the technique followed leaves no doubt that Mr. Kinzer’s employment was illegal and that he had no right to compensation.
Counsel for defendants raise the further questions that since the delayed certificate, so-called, was placed in the hands of the Board of Education, that thereby the Board was warranted in accepting it at full face value, and there would be no obligation on their part to inquire as to its legality. A well recognized principle of law is that everyone is presumed to know the law, and members of boards of education may not be excused on the claim that they were not intentionally doing wrong. They would be chargeable with the principle of law that certificates to teach may not be antedated. This certificate, marked delayed, would at once challenge the inquiry as to whether or hot it was antedated. Minority members of the board were insisting that it was illegal. The Prosecuting Attorney had been before the Board and advised them that it was illegal. A period of more than three years had expired since the teaching service had been performed. This alone should challenge the closest scrutiny. Many members of the Board were present when the Prosecuting Attorney was called before them. They knew he was their advisory officer and should have taken counsel before acting.
It is my conclusion that the trial court was in error in not sustaining counsel for plaintiff’s motion for judgment non obstante veredicto.