Opinion
No. 28229
Decided February 5, 1941.
Schools — County board may not change plan of organization, when — School Foundation Law — Section 7600-1 et seq., General Code — Transfer of territory not mandatory, when — Section 4696, General Code — Petition filed during school year covered by previously adopted organization plan — Filing petition does not prevent centralization by rural board of education, when — Petition may be disregarded in adopting organization plan for ensuing year, when.
1. Under the provisions of the School Foundation Law, Sections 7600-1 to 7600-9, inclusive, General Code, effective June 12, 1935, the county board of education has no power to modify or change a plan of organization previously adopted except in the same manner provided for its adoption.
2. When during the school year for which such a plan of organization has been previously adopted, a petition for transfer of territory, signed by 75 per cent of the electors residing in the territory sought to be transferred, is filed with the county board of education by virtue of Section 4696, General Code, no mandatory duty to make the transfer is imposed upon the county board during the school year covered by the previously adopted plan.
3. The filing of a petition to transfer territory during a school year for which a plan of organization has been previously adopted does not prevent the board of education of a rural school district, from which the transfer of territory is sought, from calling an election on centralization to be held during the same school year in which the petition was filed and, upon a favorable vote, the centralization is valid and effective notwithstanding.
4. Upon a valid adoption of centralization by a vote of the rural school district, no mandatory duty rests upon the county board of education to grant a petition to transfer territory therefrom or to give recognition to such petition in subsequently adopting a plan of organization for the ensuing school year.
APPEAL from the Court of Appeals of Hancock county.
The relators, Jesse E. Anderson, Wm. A. Beagle, Samuel F. Amstutz, Harry D. Anderson and Amos E. Klingler, on August 2, 1939, filed a petition in the Court of Appeals of Hancock county, Ohio, praying for a writ of mandamus against the respondent, the Hancock County Board of Education, to compel the transfer of territory from the Union Township Rural School District to the Bluffton-Richland Exempted Village School District.
On trial in the Court of Appeals evidence was adduced to show the following state of facts:
On March 28, 1938, a petition (bearing 103 names) was filed with the Hancock County Board of Education requesting a transfer of territory for which mandamus was sought. On April 6, 1938, the Board of Education of the Union Township Rural School District in Hancock county (the district from which the territory is sought to be transferred), adopted a resolution calling for an election to be held on April 19, 1938, to determine whether the schools in that district should be centralized. The election was held on that date and resulted in the casting of 445 votes for centralization and 15 against it.
On April 14, 1938, a supplemental petition (bearing five names) was filed with the respondent board. On April 16, 1938 (three days before the election on centralization), the board, upon representation that 88 per cent of the electors residing in such territory had signed the petition and supplemental petitions, and without further investigation adopted a resolution transferring the territory. On April 20, 1938, (the next day after the election), the board adopted a motion rescinding its prior action by which it granted the petition for transfer of territory. Thereafter other supplemental petitions and withdrawal petitions were filed and a poll of the resident electors of the territory sought to be transferred was taken.
On May 27, 1938, the petition and supplemental petitions were rejected for the following reasons:
"First, because the petition is defective;
"Second, because it lacks 75 per cent of the qualified electors;
"Third, because it is not in harmony with the school organization under the foundation program;
"Fourth, it is not for the best interests of the schools of Union Township Rural School District and the Hancock county schools."
For the meeting of the county board on May 31, 1938, the record shows the following motion and action thereon: "It was moved by Mr. Beard and seconded by Mr. Davis that the Hancock County Board of Education make no changes in the boundaries of its local school districts for the ensuing year and that the map and plan of organization before the board, which shows the boundary lines of the several school districts of said county school district to be the same as in the plan of organization heretofore adopted by this board as the plan of organization for the year 1937, be and the same is hereby adopted as the plan of organization of the Hancock County School District for the year 1938." This motion was unanimously carried.
At the meeting held on September 21, 1939, the petition for transfer was again rejected for the reasons (1) that the petition lacked 75 per cent of the resident electors, (2) that the Union Township Rural School District had been centralized since April 19, 1938, (3) that the proposed transfer is not in harmony with the school organization under the foundation program, and (4) that the transfer would not be "for the best interests of the schools of Union Township Rural School District and the Hancock county schools."
On trial of this case in the Court of Appeals a peremptory writ of mandamus was issued requiring the respondent to proceed "to pass the necessary legislation to consummate the transfer of territory described in the petition from the Union Township Rural School District, Hancock county, Ohio, to the Bluffton-Richland Exempted Village School District, Allen county, Ohio," and judgment was entered accordingly in favor of the relators.
The cause was thereupon appealed to this court as of right.
Mr. A.G. Fuller, for appellees.
Messrs. Blackford Blackford and Messrs. Knepper, White Dempsey, for appellant.
The sole question is: Did a mandatory duty rest upon the county board, the respondent below, to grant the petition to transfer territory from the rural school district to a contiguous school district?
Section 4696, General Code, provides in substance that a county board of education may make such a transfer of territory upon the petition of a majority of the resident electors and shall make the transfer upon the petition of 75 per cent of the resident electors. "Shall" as previously construed imposed a mandatory duty without qualification. State, ex rel. Brenner, v. County Board of Edn. of Franklin County, 97 Ohio St. 336, 120 N.E. 174; State, ex rel. Whartenby, v. County Bd. of Edn. of Perry County, 122 Ohio St. 463, 172 N.E. 285. On the other hand that section has no application to a centralized school district. A county board of education, however, under Section 4727, General Code, may transfer territory from a centralized school district upon the petition of two-thirds of the resident electors but no mandatory duty is imposed even though three-fourths or more of the electors join in the petition. State, ex rel. Darby, v. Hadaway, 113 Ohio St. 658, 150 N.E. 36.
The respondent contends that on April 16, 1938, after withdrawals, there were less than 73 per cent of the resident electors on the petitions. It is true that witnesses expressed an opinion to that effect, but such opinion was incompetent and cannot, as a matter of law, prevail against undisputed factual proof. A careful and painstaking examination of all the evidence discloses no conflict as to the fact that the petition and supplemental petitions, with full consideration given to all withdrawals, contained more than 75 per cent of the resident electors at all times. But Section 4696, General Code, has been modified in its application by the subsequent enactment of the School Foundation Law (Sections 7600-1 to 7600-9, inclusive, General Code, effective June 12, 1935) which requires that the county board of education shall on or before June first annually adopt a plan of school district organization. State, ex rel. Adsmond, v. Board of Education of Williams County School District, 135 Ohio St. 383, 21 N.E.2d 94. In accordance with that decision those sections must be construed together. Under such construction a petition to transfer territory may be filed with the county board during the school year and the board must consider it in formulating the plan of organization for the next school year. If at the time of the adoption of such plan there are names of 75 per cent of the resident electors on the petition after withdrawals, if any, a mandatory duty rests upon the county board to make the transfer and give recognition to it in the newly adopted organization of districts. After adoption the plan of organization can be modified and changed only "in the same manner as provided for the adoption of such plan." Section 7600-8, General Code.
In the instant case when the petition for transfer containing as it did more than 75 per cent of the resident electors was filed with the county board no mandatory duty then rested on that board to make the transfer provided a plan of organization had been previously adopted for the current school year. In event such a plan was in force the granting of the petition on April 16, 1938, was in violation of Section 7600-8, General Code (which permits no modification of a plan in operation except in the manner of its original adoption, that is, upon hearing after publication of notice thereof four times at regular intervals of not less than a week each 60 days prior to the hearing), and the rescission of its previous unlawful action (in granting the petition) by the subsequent action taken at the adjourned session on April 20, 1938, was not beyond the discretionary power of the county board, since there were and could be no intervening rights. State, ex rel. Owen, v. Carroll County Board of Education, 129 Ohio St. 262, 194 N.E. 867; Ozark School District No. 56 v. Wickes Consolidated School District, 185 Ark. 676, 49 S.W.2d 373; State v. Wormack, 4 Wn. 19, 29 P. 939; Wood v. Cutter, 138 Mass. 149; 2 McQuillin, Municipal Corporations (Rev. Ed.), 605, Section 642. So the validity of the action of the county board in rescinding its previous action likewise depended on whether a plan of organization had theretofore been adopted for the current year.
What then does the record show as to the adoption of a plan in 1937 and 1938? In disallowing the transfer of territory on May 27, 1938, the board gave as one of its reasons for disallowance that the petition for transfer was "not in harmony with the school organization under the foundation program." It also appears from a motion that was carried at the meeting on May 31, 1938, that a plan of organization had been previously adopted by the board for the year 1937 and that the same plan was adopted for the year 1938. Although there is no evidence in the record as to the details of the plan that was adopted for the 1937 school year, a presumption exists that the county board of education did its statutory duty and duly fixed the boundary lines of the school districts within the county by adopting a plan for the school year at the time and in the manner required by law. After all it is fundamental that the relator must allege and prove all the essential facts necessary to show that a clear legal duty rests on the respondent. It is therefore proper to proceed on the assumption that the duty of the county board to adopt a plan on or before June 1, 1937, for the ensuing school year had been duly performed.
It remains to consider the effect of the election on centralization.
Between the granting of the petition for transfer on April 16, 1938, and its rescission on April 20 thereafter, the rural district, in which the territory sought to be transferred was situated, had voted in favor of centralization. If the centralization was valid any duty of the county board to include the proposed transfer of territory in the next plan of organization would thereupon become discretionary. The petition for transfer was filed with the county board before the order for a vote on centralization was made by the rural board. It was held in Trumbull County Bd. of Edn. v. State, ex rel. Van Wye, 122 Ohio. St., 247, 171 N.E. 241, that, as between two governmental boards that are required to act with reference to the same subject-matter, exclusive authority with respect thereto is vested in the board that acts first. That pronouncement has no application here for reasons that are apparent. No duty rested on the county board to consider the petition for transfer until the time arrived for the adoption of the plan of organization for the ensuing year. As heretofore indicated by implication at least, the filing of such petition did not invoke the action of the board to change a plan previously adopted for the current year. There is nothing in the School Foundation Act that would prevent a vote on centralization at any time, and the filing of such a petition long before the date specified for the adoption of the plan of organization for the ensuing year would not deprive the electors of the rural district of the right to take steps to centralize the schools of the district. The conclusion is inescapable that the centralization was valid, and thereafter the inclusion of the transfer in the plan of organization to be adopted on or before June 1, 1938, was discretionary with the county board. Consequently the respondent was justified in rejecting the petition to transfer as it did on May 27, 1938, and in not including the transfer in the plan for the ensuing year in the action taken on May 31, 1938.
Since under the undisputed facts no mandatory duty rested upon the respondent, the Court of Appeals erred to the prejudice of the respondent in allowing a peremptory writ of mandamus and for such error the judgment of the Court of Appeals is reversed and final judgment entered for the respondent below.
Judgment reversed.
WEYGANDT, C.J., TURNER, MATTHIAS, HART and ZIMMERMAN, JJ., concur.
BETTMAN, J., not participating.