OPINION
By HORNBECK, PJ.
The above entitled cause is now being determined as an error proceeding by reason of plaintiffs’ appeal on questions of law from the judgment of the Court of Common Pleas of Greene County, Ohio.
This is the third time that this case has been in this court for review.
On our'first review the opinion was such that a final judgment might have [194]*194been entered for the plaintiffs, but counsel in preparing their entry did not so construe the opinion, or possibly the petition in error did not so demand.
Our second review was made on order of the court, directing a verdict against the plaintiffs at the close of their case. We reversed and remanded for new trial.
The present record discloses that the trial was before a visiting judge, especially assigned, and we glean from his written opinion overruling plaintiffs’ motion for judgment notwithstanding the verdict, that factual questions are essentially different from the record in the first case.
The following short statement of facts will render understandable the nature of the controversy:
On May 10, 1927, the Board of Education of the Xenia Township School District employed Joseph Kinzer as a teacher in one of the schools within the district for the school year 1927 and 1928. On June 10, 1927, the salary of Joseph Kinzer was fixed by the Board of Education at $115.00 per month, and $5.00 per month for janitor services. Mr. Kinzer had taught this same school, for one or two years previous, and on each occasion he held a one year certificate.
On April 2, 1927, the said Joseph Kinzer took the examination before the proper school examiners for teacher’s certificate. On September 3, 1927, he started in to teach the school in his assigned district, although no teacher’s certificate had been issued to him, nor during the following three months that he taught was any such certificate issued. During the three months that he taught no warrant for salary was issued, for the reason that such certificate had not been issued and the further fact that the Superintendent of Schools had not certified that the certificate was on file with him, as required under §7786 GC.
Mr. Kinzer was requested to' resign since no salary could be paid to him by reason of no certificate having been issued.
Some time in October, 1927, Mr. Kinzer and a number of patrons of the school, including two members of the school board, appeared before Mr. H. C. Aul'tman, County Superintendent of Schools, and ex-officio a member and secretary of the Board of Examiners, and demanded that Mr. Kinzer be given his teacher’s certificate. This was refused.
On December 3, 1927, no certificate having been issued, Mr. Kinzer resigned as a teacher in the district and removed to Indiana. In September, 1929, he died while still a resident of Indiana.
On Nov. 1,1929, Loberta Kinzer, widow of Joseph Kinzer, filed action against the Board of Education as constituted at the time of Mr. Kinzer’s employment, alleging that through some error the said Joseph Kinzer was never officially employed, but that the members individually and personally agreed in a verbal contract with the said Joseph Kinzer that they would compensate him out of their own resources in the event that he was not able to receive compensation from the Xenia Township Board of Education. This suit was dismissed.
Mrs. Kinzer’s activity in her effort to obtain the three months’ salary of her husband continued and some time in the latter part of the year 1930 or the early part of 1931, a delayed certificate was placed in the hands of the Xenia Township Board of Education, which was in the usual form of teacher’s certificate, and signed by the three members of the Board of School Examiners. It was dated April 2, 1927, and was for one year from September 1, 1927.
On February 12, 1931, three members of the Board, being a majority, voted to allow the claim of Mrs. Kinzer and authorized the clerk of the Board to issue a warrant in the sum of $390.00. The two minority members of the Board strenuously objected to the amount of the payment, and immediately. following the majority action, resigned.
Following this, on June 1, 1931, the following certificate was mailed to Mr. Bryson, clerk.
[195]*195“June 1, 1931.
Mr. R. E. Bryson, Clerk Xenia Township Board of Education, Xenia, Ohio.
Dear Sir:
This is to certify that the Greene County Board of School Examiners issued a delayed elementary certificate to Joseph Kinzer, valid for one year from September 1, 1927 to September 1, 1928, and that this same certificate is now on file in this office.
Yours truly,
H. C. Aultman,
County Superintendent and Clerk, Board of School Examiners.”
Thereafter a tax payer’s suit was duly filed to recover from the three members of the Board and the clerk the amount claimed to have been illegally allowed and paid, after first having made request on Mr. McCallister, then Prosecuting Attorney, to bring action and he having declined or refused.
The trial before a court and jury resulted in a verdict and judgment for the defendants of no cause of action. Following the verdict and judgment for defendants, counsel for plaintiffs interposed a motion for judgment non obstante veredicto, which was overruled. Motion for new trial was also filed and overruled, following which plaintiffs duly filed notice of appeal on questions of law.
It is the contention of counsel for the defendants that additional facts are presented in the present case which were not in the record on our first review, and thereby our determination is not controlling in the present case. This additional testimony comes principally from Mr. H. C. Aultman, County Superintendent and ex-officio secretary of the Board of Examiners, and also the testimony of Examiner Harley Hollingsworth. The examiner, Mr. Hollingsworth, also testified that he personally knew that Mr. Kinzer took the oath before the Clerk of Courts before the examination was completed on April 2, 1927.
Both Mr. Aultman and Mr. Hollingsworth testified that the certificate, being a delayed teacher’s certificate, so marked, and dated April 2, 1927, was actually signed by all three members of the Board of Examiners within two to four weeks following its date.
The trial court indicated that this additional testimony might properly be looked upon with suspicion, but stated that its credibility was for the jury and in his judgment it distinguished the present case from the record in the first hearing. Superintendent, Mr. Aultman, testified that he in his own handwriting made the notation on the certificate of the word “delayed”, and further testified that such notation was made for the purpose of having the certificate retained and not handed out. This witness for the first time gave testimony that Joseph Kinzer on the 2nd day of April, 1927, subscribed to the oath required under §7982-1 GO. This oath is a prerequisite to the granting of a teacher’s certificate. We made reference to this omission in our first opinion. This document was claimed to be lost and consequently was not presented in evidence, although the witness stated that such was in his files, but none for the year 1927 could be found, but so far as he knew the oaths for all previous and subsequent years were in his files.
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OPINION
By HORNBECK, PJ.
The above entitled cause is now being determined as an error proceeding by reason of plaintiffs’ appeal on questions of law from the judgment of the Court of Common Pleas of Greene County, Ohio.
This is the third time that this case has been in this court for review.
On our'first review the opinion was such that a final judgment might have [194]*194been entered for the plaintiffs, but counsel in preparing their entry did not so construe the opinion, or possibly the petition in error did not so demand.
Our second review was made on order of the court, directing a verdict against the plaintiffs at the close of their case. We reversed and remanded for new trial.
The present record discloses that the trial was before a visiting judge, especially assigned, and we glean from his written opinion overruling plaintiffs’ motion for judgment notwithstanding the verdict, that factual questions are essentially different from the record in the first case.
The following short statement of facts will render understandable the nature of the controversy:
On May 10, 1927, the Board of Education of the Xenia Township School District employed Joseph Kinzer as a teacher in one of the schools within the district for the school year 1927 and 1928. On June 10, 1927, the salary of Joseph Kinzer was fixed by the Board of Education at $115.00 per month, and $5.00 per month for janitor services. Mr. Kinzer had taught this same school, for one or two years previous, and on each occasion he held a one year certificate.
On April 2, 1927, the said Joseph Kinzer took the examination before the proper school examiners for teacher’s certificate. On September 3, 1927, he started in to teach the school in his assigned district, although no teacher’s certificate had been issued to him, nor during the following three months that he taught was any such certificate issued. During the three months that he taught no warrant for salary was issued, for the reason that such certificate had not been issued and the further fact that the Superintendent of Schools had not certified that the certificate was on file with him, as required under §7786 GC.
Mr. Kinzer was requested to' resign since no salary could be paid to him by reason of no certificate having been issued.
Some time in October, 1927, Mr. Kinzer and a number of patrons of the school, including two members of the school board, appeared before Mr. H. C. Aul'tman, County Superintendent of Schools, and ex-officio a member and secretary of the Board of Examiners, and demanded that Mr. Kinzer be given his teacher’s certificate. This was refused.
On December 3, 1927, no certificate having been issued, Mr. Kinzer resigned as a teacher in the district and removed to Indiana. In September, 1929, he died while still a resident of Indiana.
On Nov. 1,1929, Loberta Kinzer, widow of Joseph Kinzer, filed action against the Board of Education as constituted at the time of Mr. Kinzer’s employment, alleging that through some error the said Joseph Kinzer was never officially employed, but that the members individually and personally agreed in a verbal contract with the said Joseph Kinzer that they would compensate him out of their own resources in the event that he was not able to receive compensation from the Xenia Township Board of Education. This suit was dismissed.
Mrs. Kinzer’s activity in her effort to obtain the three months’ salary of her husband continued and some time in the latter part of the year 1930 or the early part of 1931, a delayed certificate was placed in the hands of the Xenia Township Board of Education, which was in the usual form of teacher’s certificate, and signed by the three members of the Board of School Examiners. It was dated April 2, 1927, and was for one year from September 1, 1927.
On February 12, 1931, three members of the Board, being a majority, voted to allow the claim of Mrs. Kinzer and authorized the clerk of the Board to issue a warrant in the sum of $390.00. The two minority members of the Board strenuously objected to the amount of the payment, and immediately. following the majority action, resigned.
Following this, on June 1, 1931, the following certificate was mailed to Mr. Bryson, clerk.
[195]*195“June 1, 1931.
Mr. R. E. Bryson, Clerk Xenia Township Board of Education, Xenia, Ohio.
Dear Sir:
This is to certify that the Greene County Board of School Examiners issued a delayed elementary certificate to Joseph Kinzer, valid for one year from September 1, 1927 to September 1, 1928, and that this same certificate is now on file in this office.
Yours truly,
H. C. Aultman,
County Superintendent and Clerk, Board of School Examiners.”
Thereafter a tax payer’s suit was duly filed to recover from the three members of the Board and the clerk the amount claimed to have been illegally allowed and paid, after first having made request on Mr. McCallister, then Prosecuting Attorney, to bring action and he having declined or refused.
The trial before a court and jury resulted in a verdict and judgment for the defendants of no cause of action. Following the verdict and judgment for defendants, counsel for plaintiffs interposed a motion for judgment non obstante veredicto, which was overruled. Motion for new trial was also filed and overruled, following which plaintiffs duly filed notice of appeal on questions of law.
It is the contention of counsel for the defendants that additional facts are presented in the present case which were not in the record on our first review, and thereby our determination is not controlling in the present case. This additional testimony comes principally from Mr. H. C. Aultman, County Superintendent and ex-officio secretary of the Board of Examiners, and also the testimony of Examiner Harley Hollingsworth. The examiner, Mr. Hollingsworth, also testified that he personally knew that Mr. Kinzer took the oath before the Clerk of Courts before the examination was completed on April 2, 1927.
Both Mr. Aultman and Mr. Hollingsworth testified that the certificate, being a delayed teacher’s certificate, so marked, and dated April 2, 1927, was actually signed by all three members of the Board of Examiners within two to four weeks following its date.
The trial court indicated that this additional testimony might properly be looked upon with suspicion, but stated that its credibility was for the jury and in his judgment it distinguished the present case from the record in the first hearing. Superintendent, Mr. Aultman, testified that he in his own handwriting made the notation on the certificate of the word “delayed”, and further testified that such notation was made for the purpose of having the certificate retained and not handed out. This witness for the first time gave testimony that Joseph Kinzer on the 2nd day of April, 1927, subscribed to the oath required under §7982-1 GO. This oath is a prerequisite to the granting of a teacher’s certificate. We made reference to this omission in our first opinion. This document was claimed to be lost and consequently was not presented in evidence, although the witness stated that such was in his files, but none for the year 1927 could be found, but so far as he knew the oaths for all previous and subsequent years were in his files. The oath in proper, form for the year 1926 was presented, introduced and is attached to the bill of exceptions as an exhibit.
This appeal is directed to the judgment on behalf of defendants-appellees entered on the verdict of the jury. There is but one substantial question, namely, was there an issue of fact presented to the jury for its determination. If so, then every reasonable interpretation must be indulged in favor of the verdict and judgment. If upon the facts there can be but one conclusion drawn, namely, that the plaintiffs are entitled to ■ judgment then this court should enter that judgment.
We have this case for the third time and realize that it presents a very nice question of law and if the letter only of the statutes controlling is to be followed then the plaintiffs are entitled to judgment. This is true because it cannot be said under the evidence that at the. time that Mr. Kinzer began to teach in the Fall. of 1927, or at any [196]*196time during his incumbency as such teacher, had the elementary certificate provided for in §7830 GC been actually delivered to him. However, under the peculiar facts in this case we do not believe the letter of the law should be strictly interpreted to kill its spirit which is to assure that a teacher shall be fully qualified before he is permitted to teach. The certificate is the authenticated evidence of that fact. Upon the testimony of Superintendent Aultman, which the jury had a right to believe, at the time when Mr. Kinzer began to teach he had taken the requisite oath. The elementary certificate required under §7830 GC had been prepared in his name, signed by the Board reciting that all of the requisites of the section had been met by Mr. Kinzer. It was, however, held by the Board but according to Mr. Aultman it was not retained because of any act involving the good moral character of Mr. Kinzer.
It must be said in fairness, that from some of the statements made by Mr. Aultman, he may have been in error when he said that the reason for withholding the certificate did not have any reference to the moral character of Mr. Kinzer. But the incompleteness of Mr. Aultman’s testimony in this regard was not cleared up as it could have been and the exact reason for the withholding of the certificate was not developed. In this situation the jury had the right to conclude that it was not held up for any reason affecting the good moral character of Mr. Kinzer.
The fact was, then, that although the certificate was in the possession of Mr. Aultman, Superintendent of the Board, Mr. Kinzer had met every legal requirement essential to its issuance and to its being obtained by him. Had he then instituted an action in mandamus against the Board it would have had no defense and it would have been its clear ministerial duty to have issued the certificate to Mr. Kinzer. Eventually and before the amount due Mr. Kinzer was paid this certificate was actually delivered and over the signature of H. C. Aultman, as County Superintendent and Clerk of the Board of School Examiners, the Clerk of Xenia Township Board of Education was notified that the delayed elementary certificate had been issued and that it was valid from September 1, 1927 to September 1, 1928 and was on file in the office of the County Superintendent.
We do not believe that the action of the Board in issuing the delayed certificate on behalf of Mr. Kinzer was an antedating of the certificate as is contemplated by the statute. The certificate as prepared in the original form dated and signed by the Board had not been changed in any particular. If it was effective at all it was effective as of the date of its preparation and the signing thereof which was prior to the time when Mr. Kinzer began to teach. The outstanding fact, then, is that the Board received the services of a qualified teacher and at the time payment therefor was made, all the requisites of the law had been met.
We are of opinion that the jury had the right to find that the defendants did not violate the law in the payment of the salary of Mr. Kinzer under the facts appearing in the record in this case. The judgment will be affirmed.
GEIGER, J., concurs.
BARNES, J., dissents.