Opinion
No. 33255
Decided February 3, 1954.
Schools — Transfer of territory — Section 4831-13, General Code — Petition for transfer signed by 75 per cent of electors — Duty to transfer mandatory — Mandamus.
IN MANDAMUS.
The relators, taxpayers and resident qualified electors of a certain described district which is a part of the Pike Monroe Local School District, Madison County, seek by this proceeding in mandamus to have the respondent, the Board of Education of the Madison County School District, transfer such described district to the adjoining Union County School District, Union County.
The petition in mandamus alleges that a petition, requesting such transfer and signed by more than 75 per cent of the qualified electors of the territory sought to be transferred, was filed with the respondent; that the respondent adopted a resolution objecting to the transfer and filed with the Superintendent of Public Instruction a copy of such resolution, together with a copy of the petition and maps of the district; that the superintendent approved the proposed transfer and notified the respondent of his decision; and that the respondent refuses to adopt a resolution transferring the territory.
The answer, after admitting substantially the allegations of the petition in mandamus, alleges that the superintendent acted without legal authority in approving the proposed transfer; and that the transfer would completely destroy the plan toward which respondent has been working with reference to districting the schools, would greatly damage the Monroe Local School District, would probably cause the revocation of the high school charter of such local district, and could work great and irreparable injury to the school system of Madison county.
Mr. Clifton L. Caryl and Messrs. Knepper, White Dempsey, for relators.
Messrs. Crabbe Tanner, for respondent.
Respondent contends that it is not mandatory that the territory be transferred merely because a petition bearing the signatures of more than 75 per cent of the electors was filed with the county board; that the county board has discretion in transferring or not transferring the territory; and that the superintendent abused his discretion in allowing the transfer. No appeal was taken therefrom.
All statutory procedural steps have been complied with.
Section 4831-13, General Code, provides in part:
"If there is filed with a county board of education * * * a petition requesting the transfer of territory from a local school district * * * to an adjoining county school district * * * signed by 75 per cent of the qualified electors residing in the territory which the petition seeks to have transferred * * * such county board of education shall * * * either adopt a resolution transferring the territory as requested by such petition or adopt a resolution objecting to the requested transfer. If the resolution adopted * * * is a resolution objecting to the requested transfer, then the county board of education shall * * * file a copy of the resolution * * * with the Superintendent of Public Instruction. * * * the Superintendent of Public Instruction shall either approve or disapprove such proposed transfer of territory and shall submit * * * to the county board * * * notice of his decision. If the decision * * * is an approval of the proposed transfer * * * the county board of education shall * * * adopt a resolution transferring the territory." (Emphasis added.)
Under the facts of this case, the above-quoted section imposes on the respondent a mandatory duty to adopt a resolution transferring the territory as requested and submit a copy of such resolution to the Board of Education of Union County School District.
A writ of mandamus is allowed.
Writ allowed.
WEYGANDT, C.J., MIDDLETON, TAFT, HART, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.