Opinion
No. 35502
Decided March 26, 1958.
Schools — Bond issue — Authority to exceed net indebtedness limitation of six per cent — Section 133.041, Revised Code — Approval of state Department of Education necessary — Statutory requirements mandatory — Mandamus.
IN MANDAMUS.
The relator, the Board of Education of Painesville Local School District, instituted this action in mandamus in this court. In its petition it alleges the various steps taken in compliance with the requirements of the Uniform Bond Act for submission to the electors of the school district the question of issuing bonds to provide funds for the construction of additions to its school buildings and for furnishing such additions, and the various procedural steps which it has taken from the passage of the resolution of necessity to the sale of the bonds.
It alleges further that the bonds are now ready to be printed and signed by its president and by its clerk, respondent herein, and that the clerk refuses to order the printing, to sign the bonds, and to furnish the successful bidder a certified transcript of the proceedings with reference to the issuance of the bonds.
The prayer is for a writ requiring the clerk to order the printing of the bonds, to sign the same, and to furnish the successful bidder a certified transcript of the proceedings with reference to the issuance of the bonds and all information necessary to determine the regularity and validity of the bond issue.
To this petition the respondent has demurred for the reasons that the petition fails to state a cause of action in that it "fails to show that relator obtained approval of the state Department of Education prior to submission to the electors, of vote on its bond issue, as required by Section 133.041, Revised Code, in effect at the time the bond proceedings were commenced" and that it "fails to show that relator incurred the indebtedness on its bonds prior to December 31, 1957, as required by Section 133.041, Revised Code, in effect at the time the bond proceedings were commenced."
The issues presented by the petition and the demurrer thereto are whether the relator must secure the approval of the state Department of Education prior to the submission of the bond issue to popular vote, and whether the bond indebtedness must have been incurred prior to December 31, 1957.
Mr. Oliver R. Marshall, for relator.
Mr. Edward R. Ostrander, prosecuting attorney, for respondent.
On June 12, 1957, the relator determined that it was necessary to submit a bond issue to the electors and passed a resolution of necessity. At that time, Section 133.041, Revised Code (126 Ohio Laws, 615), was in effect. It read as follows:
"On or before December 31, 1957, the net indebtedness of a school district which may be imposed by popular vote with the consent of the state Department of Taxation, as provided in Section 133.04 of the Revised Code, shall be increased from six per cent to nine per cent, provided that the submission to popular vote of bond issues which would make the net indebtedness more than six per cent shall also have the approval of the state Department of Education. The state Department of Education shall determine that the proceeds of such bonds are needed for the purpose of acquiring sites and equipment or constructing any permanent improvement which a board of education is authorized to acquire or construct and that such acquisition or construction would provide a desirable permanent school center." (Emphasis added.)
It will be noted that the purpose clause of the act amending Section 133.041, Revised Code, as above quoted, recited the purpose as being "to give temporary authority to boards of education to issue bonds * * * up to nine per cent of the value of the property of the district * * * and to declare an emergency"; that the statute itself provides that it is applicable only "on or before December 31, 1957"; and that, as a condition precedent to holding a valid election creating a net indebtedness in excess of six per cent, the statute required that the board " shall have the approval" of the state Department of Education as to the necessity for such bond issue.
As disclosed by the petition, the bond issue election was held on November 5, 1957, and the state Department of Education did not approve the submission of the bond issue to popular vote until January 21, 1958.
It is obvious from the foregoing that the mandatory provisions of Section 133.041, Revised Code, were not complied with.
The act amending Section 133.04 and repealing Section 133.041, Revised Code, effective June 22, 1957 (127 Ohio Laws, S. 444), in no way affects the bond issue in question here since it was a "pending proceeding" at the time the amending and repealing act became effective. State, ex rel. City of Cincinnati, v. Flick, Aud., 153 Ohio St. 294, 91 N.E.2d 673.
Our conclusion as to the first issue makes it unnecessary to consider the second.
As the petition fails to state a cause of action, the demurrer is sustained and the writ is denied.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS and BELL, JJ., concur.
HERBERT, J., not participating.