ments. There is no provision of law requiring of any superintendent of schools qualifications beyond those expressed in a valid professional certificate, nor is there any specification that such certificate must include all the branches taught in the schools of the borough, city or county, to which he has been elected superintendent.14

Eligibility of county, city or borough superintendent.

698. The opinion to Hon. Nathan C. Schaeffer, state superintendent of public instruction by Deputy AttorneyGeneral Fleitz, was as follows: "I have before me your letter of recent date, enclosing the certificate of election of A. as superintendent of the public schools of the city of Johnstown, as well as a petition signed by a number of the school directors of said city, protesting against the issuing of a commission by you to the said A., and alleging that he is ineligible under the law, for the reason that he has not taught in the public schools of the state within the past three years. It appears, however, from the papers in the case, that A. has taught successfully at Lafayette college, situated at Easton, and the University of Pennsylvania, at Philadelphia, during his time.

In response to your request for an official opinion as to whether or not you can legally issue a commission to A. as the duly elected superintendent of schools in Johnstown, I beg to submit the following: Section 13 of the act of April 9, 1867, P. L. 51, provides that 'no person shall hereafter be eligible to the office of county, city or borough superintendent in any county of this Commonwealth, who does not possess a diploma from a college legally empowered to grant literary degrees, a diploma or state certificate issued according to law by the authorities of a state normal school, a professional certificate from a county, city or borough superintendent of good standing... ..Nor shall any such person be eligible unless he has a sound moral character, and has had successful experience in teaching within three years of the time of his election.'

14.

Borough School Superintendent, 13 Pa. C. C. 458, 1893.

There is nothing in your communication or the papers before me to show that the election of A. was not due and legal in every respect. The certificate of election, signed by the president and secretary of the board, complies with the requirements of the law in every particular, and it is to be presumed, in the absence of proof to the contrary, that the full measure of the legal requirements has been filled. The language of the act above quoted by no means bears out the contention that the teaching required during the three years prior to election should be done in the public or common schools of the state; indeed, it would be a manifest absurdity to insist that a person qualified to teach successfully in the higher institutions of learning should be excluded from holding the position of superintendent of public schools, while a teacher in the common schools would be eligible. The intent of the act was clearly to provide that only persons of experience in teaching should be eligible to superintend those engaged therein. There is nothing whatever in this case which would indicate that, even technically, A. is not entitled to his commission.

I therefore advise and instruct you that upon the facts submitted to me, it is your duty to issue the commission."5 Branches to be taught.

699. It shall be the duty of each county superintend ent to see that in every district there shall be taught orthography, reading, writing, English grammar, geography, arithmetic, physiology, hygiene and a system of humane education which shall include kind treatment of birds and animals. 16

Examination of teachers.

700. It shall be the duty of the county superintendent to examine all the candidates for the profession of teacher, in the presence of the board of directors or controllers, should they desire to be present, to whom they shall first

15. Superintendent of Public Schools, 14 D. R. 635, 1905. 16. a. Act May 8, 1854, Sec. 38, P. L. 617.

b. Act April 2, 1885, P. L. 7.

c. Act March 27, 1905, P. L. 60.

apply in his county, and to give each person found qualified a certificate, setting forth the branches of learning he or she is capable of teaching; and such examination and certificate shall be renewed as often as any such teacher shall be employed in teaching any branch of learning other than those enumerated in his or her certificate, and no teacher shall be employed in any school to teach other branches than those set forth in the certificate.17

Superintendent required to examine teachers.

701. The school directors requested A. to teach a certain school in their township, whereupon she applied to the county superintendent to examine her, and if found qualified, to give her a certificate. The request was declined by the county superintendent for the reason that his rules and regulations which were published in the leading newspapers, provided that there should be no other examinations for the year 1900, and no special examinations except in urgent need to fill vacancy which cannot otherwise be filled. In reviewing the case, Justice Clark said: "It cannot be doubted that the county superintendent is required by law to examine all the candidates for the profession of teacher (in the presence of the board of school directors or controllers should they desire to be present, to whom they shall first apply in his county) and to give to each person found qualified a certificate, setting forth the branches of learning he or she is capable of teaching," etc. It is well settled that those who accept public office or employment are bound to discharge the duties required of them by law, or assign such reason for the refusal as shall be deemed sufficient by the tribunal appointed to decide. It is equally well settled that it is only where a discretionary power is given to do or omit any particular act that the refusal or omission can be justified by a general averment of causes not specified, but which are deemed sufficient by the party refusing to act. In regard to the duty of examining the candidates for teachers, there was no discretion reposed in the county superintendent. In this respect the law is imperative and

17. Act May 8, 1854, Sec. 41, P. L. 617.

nothing can justify a refusal to perform it, except in the cases of candidates of known or proved immoral character or habits, no matter what their literary or professional claims may be. The examination of persons thus disqualified, and to whom no certificate could issue, would be but a waste of time. In the case at bar, no claim has been made by the respondent, at least it does not appear in his auswer, that A., the applicant, is a person of immoral character or bad reputation, nor was the refusal of the county superintendent to examine her based upon any such charges.

There is nothing in the school laws of this Commonwealth in respect to the time when such examinations shall be held, and while I am ready to concede, by implication, the authority of county superintendents to establish reasonable, proper and necessary rules and regulations in the performance of duties required by them by virtue of their employment, election or appointment, and such as are not inconsistent with the laws relating thereto, and while such superintendents may determine the dates on which they shall hold their examinations by complying with the requisites of the law, I shall hold that there is no provision whatever in the law which will permit a superintendent to fix an arbitrary rule or regulation by which applicants may be excluded from undergoing an examination at any subsequent date, except in cases of applicants of known or proved immoral habits.18

Countersigning teachers' certificate.

702. A's school directors certified that he had taught four annual school terms in the district and that they considered him well qualified as a teacher, morally, intellectually and professionally, and recommended the State Normal School at Shippensburg, Pennsylvania, to grant him a teachers' state certificate.

This endorsement of the school board then established the fact that A. had complied with the requirements of the Act May 20, 1857, P. L. 581.

18. Stroup's Petition, 10 D. R. 301, 1901.

The county superintendent refused to countersign the school board's certificate purely upon his deliberate and conscientious judgment, formed in his official capacity, from personal supervision and inspection of A's work as a teacher. The superintendent did not specify in what respect A's work as a teacher was deficient, or designate any failure to discharge the duties of a teacher.

In reviewing the case the court held that the reason advanced by the superintendent to countersign the certificate when requested are simply the opinions and conclusions of the superintendent in regard to the ability and efficiency of A. as a teacher, without any particularization whatever of facts warranting or forming a basis for such opinions and conclusions. The act required to be done in the countersigning of the certificate, is a mere ministerial act; it is not an act to be done under the deliberative or discretionary powers of the county superintendent. The duties of this office, like that of a controller of a city, are partly ministerial and partly discretionary, and while the courts will not review his discretion, exercised in a proper case, yet he is not above the law, and his discretion is not arbitrary, but legal: Com. vs. Phila., 176 Pa. 588

It is the directors, in whose employ the teacher is, who are to certify to his good moral character, experience and proficiency in teaching, and the certificate is to be "countersigned" by the county superintendent. The directors have the requisite knowledge of the facts to be certified, and their act is not to be attested by the superintendent to validate it.

The word "countersign" used in the act does not mean to recommend or endorse, but to attest or authenticate, "to authenticate by an additional signature." Anderson's Dic. of Law, 270. 7 Am. and Eng. Ency. of Law (2 ed.) 897.

If the act of assembly prescribed that the certificate should be given by the county superintendent, then his act would be discretionary, and a refusal to sign the certificate would not be reviewable by the court. He was not asked