Board of Education of Zaleski School District v. Boal 104 Ohio St. (n.s.) 482

104 Ohio St. (n.s.) 482

The Board of Education of Zaleski School District et al. v. Boal.

Schools — Boards oí education — Interest oí members in contracts —Employing relative as teacher — Section 129S2, General Code — Husband and wife — Statutory construction — Persons within penal provisions.

1. Where a statute defining an offense designates one class of persons as subject to its penalties, all other persons are deemed to be exempted therefrom.

2. The legislature having prohibited a member of the board of education from participating in the making of a contract with a person as teacher in a public school to whom he or she is related as father or brother, mother or sister, by express provisions of Section 12932, General Code, the courts are not authorized to extend such prohibitory provision so as to include the relation of husband and wife or other relations not therein specified.

(No. 17017

Decided March 21, 1922.)

Error to the Court of Appeals of Vinton county.

The defendant in error, A. A. Boal, was plaintiff in the trial court, where he brought this action January 26, 1921, as a taxpayer of the Zaleski village school district, to enjoin the defendant board of education and its treasurer from paying Jenola MeKibben, who was also named as a defendant, out of the public funds, for her services as a teacher in the public schools of the village.

The averments of the petition and the amendment thereto are substantially as follows: That on July 24, 1920, the defendant, Jenola MeKibben, was declared to be elected as one of th.e teachers in the schools of said village at a meeting of the board of education thereof; that said board then consisted of *483James G. McKibben, E. P. McKibben, E. O. Wallthall, George Cavenaugh and Prank Bighouse; that said James G. McKibben was then and prior thereto and since and still is the husband of the defendant Jenola McKibben, and that they were at the time of such employment, and ever since, living together as husband and wife, and that he is pecuniarily interested in her maintenance and support and is legally bound therefor, and was at the time of said employment; that at a meeting of the board of education in regular session, at the time stated, upon the motion to elect the defendant Jenola McKibben as one of the teachers of the schools, the vote was as follows, “Yes, James G. McKibben, E. P. McKibben and B. O. Wallthall. No, George Cavenaugh and Prank Bighouse;” and that the schools opened on the first Monday in September, 1920, and the defendant Jenola McKibben then entered upon the work assigned to her as a teacher in the schools, and has been acting as such ever since.

A general demurrer to the plaintiff’s petition, as amended, was sustained by the court of common pleas. On proceeding in error in the court of appeals, the judgment of the court of common pleas was reversed and an injunction was issued by that court as prayed in the petition. This proceeding in error is now prosecuted in this court to procure a reversal of that judgment.

Mr. John E. Blake, prosecuting attorney, and Mr. O. E. Vollenweider, for plaintiffs in error.

Mr. James W. Darby and Messrs. Woolley & Rowland, for defendant in error.

*484Matthias, J.

The only question presented by the demurrer to the amended petition of plaintiff is stated by counsel for plaintiff to be: “Can the wife of a member of a board of education be legally employed by such board to teach school, and draw public funds as compensation?”

The contract of employment as teacher in the schools of Zaleski village school district was duly entered into by Jenola McKibben and the board of education of that district as to manner and form in full compliance with the provisions of the statutes having reference thereto. The rights of a married woman in this state have been extended by express provisions of our laws, and she now has the full power to contract, and the unlimited right to have and enjoy the benefits of her contracts and the fruits of her employment. These modem statutes relating to the property rights of married women are generally intended to cut off the common-law rights of the husband to the personal estate of the wife. They have been construed to constitute as her separate estate a separate business or trade which she may carry on, and all the property incident thereto. Under the provisions referred to, the earnings of a married woman, or property acquired by her labor, constitute her separate property, and no part thereof or interest therein can in any wise be claimed by the husband as against her. 13 Ruling Case Law, 1149, Section 173.

If the power to contract in her own right, or the enjoyment of the fruits of her employment, is to be denied or limited, such denial or abridgment thereof must be found in some express provision of *485the legislation of the state. It cannot be imposed by action of the court.

It is claimed that this contract is rendered invalid by the provisions of Section 12932, General Code, which are as follows: “Whoever, being a local director or member of a board of education, votes, for or participates in the making of a contract with a person as a teacher or instructor in a public school to whom he or she is related as father or brother, mother or sister, or acts in a matter in which he or she is pecuniarily interested, shall be fined not less than twenty-five dollars nor more than five hundred dollars or imprisoned not more than six' months, or both.” And, also, Section 4757, General Code, which, so far as pertinent, reads: “No member of the board shall have directly or indirectly any pecuniary interest in any contract of the board or be employed in any manner for compensation by the board of which he is a member except as clerk or treasurer.”

In the contract of employment involved in this case there is not alleged or claimed any interest of a member of the board of education therein save and except that which may arise from the relationship as husband and wife between the person employed and one of the members of the board. The maxim, expressio unius est exclusio alterius, embodies a familiar principle of statutory construction which has application here. Where a statute defining an offense designates one class of persons as subject to its penalties, all other persons are deemed to be exempted therefrom. Sutherland on Statutory Construction, Section 493.

It may be argued that the same reason which actuated the imposition of the restrictions imposed by *486the provisions of Section 12932, General Code, would require that such restrictions be extended so as to include also the relation of husband and wife. The only answer that need be made to this argument is that the legislature did not so provide, and the argument that is now being addressed to this court should be addressed to the lawmaking branch of the state. The principle of statutory construction applicable to this case has been frequently enunciated. It is not the province of the court to legislate, either directly, or by extending the language employed by the legislature; the court is authorized only to interpret and apply the provisions enacted by the legislature, and where the language of such provision is clear and free from ambiguity there is nothing to interpret or construe. Slingluff v. Weaver, 66 Ohio St., 621, and Scheu v. State, 83 Ohio St., 146.

For the reasons assigned the judgment of the court of appeals is reversed and that of the common pleas affirmed.

Judgment reversed.

Marshall, C. J., Johnson, Hough, Wanamaker, Robinson and Jones, JJ., concur.

Board of Education of Zaleski School District v. Boal
104 Ohio St. (n.s.) 482

Case Details

Name
Board of Education of Zaleski School District v. Boal
Decision Date
Mar 21, 1922
Citations

104 Ohio St. (n.s.) 482

Jurisdiction
Ohio
Court
Supreme Court of Ohio

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!