Opinion
No. 27399
Decided June 7, 1939.
Schools — Transfer of territory refused by county board of education — Action not reconsidered or rescinded by requesting survey and report — State public school fund — Nonresident pupils not to be included in determining enrollment, when — Mandamus denied to compel transfer of territory or allot funds — Writ not issued to control discretion — Or to require performance of duty not enjoined by law.
IN MANDAMUS.
These facts are abstracted from the agreed statement, rearranged chronologically:
The territory described in the transfer petition, hereinafter referred to, is entirely within the Madison Township Rural School District of Butler county, but contiguous to the Carlisle Centralized Rural School District of Warren county.
On July 7, 1937, the Board of Education of Madison Township Rural School District assigned to the school at Poasttown in that school district all the pupils residing in that portion of the district referred to in the transfer petition.
On November 2, 1937, the Madison Township Rural School District became a centralized school district.
On March 17, 1938, and for several years prior thereto, a number of pupils residing in a portion of Madison township attended the schools conducted by the board of education in the village of Carlisle, Warren county.
On the last named date there was filed with the Butler County Board of Education a petition signed by more than 75 per cent of the resident electors of a portion of Madison township asking the Butler County Board of Education to transfer certain territory in that township to the Carlisle Centralized Rural School District of Warren county.
On March 18, 1938, the Butler County Board of Education refused the prayer of the transfer petition and dismissed the same from further consideration.
At the request of the Butler County Board of Education, the Director of Education caused a survey and study to be made of the facilities of Madison township and the Carlisle school districts, which survey was completed and a report thereon was made on or about June 10, 1938, and, shortly after it was filed, the Director of Education sent a copy thereof to the Butler County Board of Education.
On July 12, 1938, the Director of Education approved the plan of organization of the Butler County Board of Education, including the school district of Madison township, without amending, modifying or altering the plan so as to include the territory described in the transfer petition as a part of any district in Warren county.
Since March 17, 1938, elementary pupils residing in Madison township and in the territory set forth in the transfer petition have been attending the school in the village of Carlisle, and they have been certified to the Director of Education as attendants and pupils in the school of the relator board. The Director of Education, in the distribution of public school funds to the Carlisle Centralized Rural School District during the school year 1937-1938, prior thereto and until the quarterly distribution due and payable December 1, 1938, paid the Carlisle board of education for average daily attendance, tuition and transportation based upon a total enrollment including pupils resident of Madison township but attending the Carlisle school.
On and since the last named date the Director of Education withheld a total of $841.32 from the Carlisle board, representing former payments made or amount claimed due based on average attendance of Madison township pupils attending the Carlisle school.
The Board of Education of the Carlisle Centralized Rural School District of Warren county filed in this court a petition for a writ of mandamus commanding (1) the members of the Board of Education of Butler county to pass a resolution providing for the transfer of territory from the Madison township to the Carlisle district, (2) the Director of Education to adopt plans of organization for Butler and Warren counties incorporating the territory described in the transfer petition as a part of the school district of the relator in Warren county, and (3) the Director of Education to pay or allot funds to which relator may be entitled and which it formerly enjoyed because of the attendance of Madison township pupils in the Carlisle school.
The cause was submitted upon separate answers of the respondents, a reply, an agreed statement of facts and depositions on behalf of relator.
Mr. C. Donald Dilatush, prosecuting attorney, Mr. John D. Andrews and Mr. Ralph E. Hoskot, for relator.
Mr. Thomas J. Herbert, attorney general, and Mr. Charles F. Ohl, for respondent, E.N. Dietrich, director of education.
Mr. Paul A. Baden, prosecuting attorney, for respondent, Butler County Board of Education.
The relief sought by relator falls into two classifications: First, the transfer of territory, and, second, the allotment of funds.
The relator concedes it was held by this court in State, ex rel. Darby, v. Hadaway, 113 Ohio St. 658, 150 N.E. 36, that Sections 4696 and 4727, General Code, are in pari materia and that transfer from a centralized district is permissive and not mandatory; but relator contends that the Board of Education of Butler county in the instant case, after rejecting the petition for transfer, reconsidered the petition by adopting the resolution requesting the survey and agreed to follow the findings and recommendations of the report as to transfer of territory.
Section 4732, General Code, designates the county superintendent as the secretary of a county board of education and requires him to keep a full record of the proceedings of the board. There is nothing in the record before this court showing official action by the Butler County Board of Education either rescinding its former rejection of the transfer petition or agreeing to be bound by the recommendations in the survey report. The relator is not seeking to compel the Director of Education or the county board to perform a duty specially enjoined by law, but is asking that the writ of mandamus be issued to control the exercise of discretion. The writ will not be granted for that purpose. State, ex rel. Coen, v. Industrial Commission, 126 Ohio St. 550, 186 N.E. 398; Sutphin v. State, ex rel. Jeby, 130 Ohio St. 183, 198 N.E. 483.
As to the second classification relating to the allotment of school funds, it will be observed from the agreed statement of facts that the pupils were assigned to the Poasttown school in Butler county. Nowhere in the record before this court is there anything to show that the pupils were assigned to the Carlisle school pursuant to Section 7764, General Code; or that there was a contract by the Madison township board with the Carlisle board within the terms of Section 7734, General Code; or that the pupils lived more than one and one-half miles from the Poasttown school to which they had been assigned pursuant to Section 7684, General Code, and nearer to the Carlisle school, thereby bringing them within Section 7735, General Code.
Since these pupils were assigned to the Poasttown school and were not attending the Carlisle school as "tuition pupils" either as "fixed by law" or "pursuant to law" as those terms are used in Sections 7595-1 a or 7595-1 d, General Code, no duty is imposed upon the Director of Education to include these pupils in determining the enrollment of the Carlisle school. A writ of mandamus directed to the Director of Education will be denied. (Section 12283, General Code; 25 Ohio Jurisprudence, 995, Section 22, and cases therein cited.)
Writ denied.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.