Opinion
No. 19108
Decided October 22, 1925.
Schools — Replacement of condemned or destroyed schoolhouses — Section 7630-1, General Code — Department of Industrial Relations successor of Industrial Commission — Section 154-1 et seq., General Code — Department to be administered by director and records necessary — Letter from chief of factory inspection to board of education — Not order of department warranting bond issue for new building.
1. By virtue of the provisions of the Administrative Code (Section 154-1 et seq., General Code), the Department of Industrial Relations became the successor of the Industrial Commission with reference to the powers to be exercised and duties to be performed, pursuant to the provisions of Section 7630-1, General Code.
2. The provisions of such Code require the administration of the affairs of that department by the director of Industrial Relations and provide for the keeping within the department such records and journals as are necessary to exhibit its official acts and proceedings. A letter addressed to a board of education, signed only by the chief of the division of factory inspection, giving notice that the use of a school building is prohibited unless designated changes are made by a specified time, there being no record of any official action by the department with reference to such matter or showing any authority conferred upon the chief of division of factory inspection relative thereto, is not an order of the department whereon may be predicated action of a board of education to issue and sell bonds of the district for the erection of a new school building, pursuant to the provisions of Section 7630-1, General Code, as it existed April 9, 1923.
ERROR to the Court of Appeals of Darke county.
The case presented to this court is a combination of two actions brought in the court of common pleas of Darke, county:
The first was filed May 12, 1923, by Olive Williamson against the board of education of Versailles village school district. It was an action to enjoin the board of education from taking any further steps relative to the execution and delivery of a certain bond issue of $256,000, for the purchase of a site and the erection of a school building, and from certifying to the county auditor any tax levy or budget including any items relative to or caused by said bond issue or a part thereof.
The other action was filed by Bert Snyder, December 31, 1923, against the same defendant, in which he sought to enjoin the letting of any contract for the erection of a school building pursuant to an advertisement which had been published for bids, also from expending any money in acquiring a site for the proposed building, and also from expending any money therefor. By supplemental petition he asked for an order requiring the refunding to the purchasers thereof the money which had been paid the board for such bonds, and also that the contract entered into for the erection of such school building be set aside. Later these two cases were consolidated, and, upon trial, the common pleas court set aside the award of the contract, for the erection of the building, perpetually enjoined the board from expending any money in acquiring a site for the proposed new school building, or expending any money for the erection thereof, and ordered the bonds canceled and the proceeds thereof refunded.
It was charged in the amended petition in the first case referred to that on March 1, 1923, notice was given to the defendant board by the Division of Workshops, Factories, and Public Buildings, Department of Industrial Relations of the State of Ohio, that the heating and ventilating system in the public school building located in said district was inadequate; that the electric wiring should be inclosed in a metal conduit; that additional window space should be provided in certain rooms; that the stairways and floors should be repaired; and that such order further directed the defendant to make said repairs and alterations on or prior to September 1, 1923, and, in the event they were not made, it was directed that such building should not be used for school purposes after September 1, 1923.
It was averred that said board without submitting any proposal to the voters of the district proceeded to act under the authority of Section 7630-1, General Code, and by resolution declared the existence of an emergency within the intent of Section 7630-1, and authorized the issuance of bonds of the district in the sum of $251,000, and further determined not to repair or alter the present building, but to build an entirely new building on a new and different location, to purchase which it proceeded to issue $5,000 of bonds by virtue of Section 7629, General Code. It was then averred that the required repairs and alterations could have been made by the expenditure of not more than $30,000, and that thereupon such school building would have provided sufficient school facilities for the children of that school district. It was further averred that no real emergency existed and the issue of said sum of bonds for the purposes stated constituted an abuse of discretion; that if an additional indebtedness of $256,000 was permitted to be created, and an amount sufficient to create annually a fund necessary for the sinking fund charges due to said issue be certified to the county taxing authorities, it would be impossible under existing laws for the defendant board and the village of Versailles to obtain funds for the necessary performance of duties imposed upon them; that the levy of a tax sufficient to create a sinking fund for said proposed bond issue would make it impossible for defendant to pay a teaching force of its present size, and would render it impossible for the village (the district and village being practically coextensive) to maintain its police and fire departments or perform any service required thereof; that the present total tax duplicate of the board of education is $2,403,360; and that the village of Versailles has an outstanding indebtedness of $35,000, exclusive of its special assessment bonds. It was averred further that in accordance with the order referred to substantial changes and repairs have been made and that the building is now occupied and all the school children of the district are taken care of therein; that the board of education on April 9, 1923, passed a resolution purporting to find that it would be inadvisable to continue the use of the old building or to attempt to repair or alter the same in accordance with the requirements of the Department of Industrial Relations, and also determined to build an entirely new building, for which purpose it passed the resolution heretofore referred to; and that no estimate was made or attempted to be made of the cost of repairing the present building so as to meet the requirements of the order, but that said order was made an excuse for the construction of a new school building, and no bona fide effort was made to comply with the order of the Department of Industrial Relations by repairing the existing school building. And it was in these respects that it was charged that there was an abuse of discretion upon the part of the board of education.
The Court of Appeals, upon hearing, held that under the circumstances disclosed in the record the action of the board of education in failing and refusing to make the repairs ordered, and in ordering the construction of a new building, was an abuse of its discretion. It also held that the issuance of bonds for $251,000 for the erection of a building, and also the issuance of bonds for $5,000, under Section 7629, General Code, were illegal, and granted a perpetual injunction against the acquisition of a site for a new school building and also against expending any money therefor or in the construction of a new school building. It also found that the Industrial Commission and the retirement board of the state teachers' retirement system, who had been made parties and filed answers in the case, were entitled to receive, and said board of education was ordered and directed so to pay, all moneys received by it for said bonds, including interest on the bond issue, together with any and all moneys which were earned by said funds while deposited by such board of education in the various depositaries, and upon the payment by said board of education of said amount the Industrial Commission and the retirement board of the state teachers' retirement system were ordered and directed to surrender said bonds and interest coupons.
To this finding and order error was prosecuted to this court.
Mr. C.C. Crabbe, attorney general, and Mr. Wilbur E. Benoy, for plaintiffs in error Industrial Commission and Retirement Board of State Teachers' Retirement System.
Mr. Orel J. Myers, prosecuting attorney, and Mr. John F. Maher, for plaintiff in error Board of Education of Versailles Village School District.
Mr. Martin B. Trainor; Messrs. Mannix, Crawford Billingsley, and Mr. H.T. Mathers, for defendants in error.
The bonds in question, amounting to $251,000, were issued pursuant to the provisions of Section 7630-1, General Code, upon the theory that the use of the school building in the Versailles village school district had been prohibited by a valid order of the Department of Industrial Relations. The validity of that order is challenged, and all other questions presented by the record are subordinate thereto, hence the necessity of their consideration is dependent upon our view of the issue made as to the validity of such order. In our present discussion we shall assume, without deciding, that the order in question prohibits the use of said building. At the time of the passage by the board of education of the resolution for the issuance of bonds to provide funds for the erection of a new school building, Section 7630-1, General Code (109 O. L., 343), authorized the board of education to issue bonds and levy a tax to pay the same, using the fund derived therefrom to construct a schoolhouse for the proper accommodation of the schools of the district if the "use of any schoolhouse or schoolhouses for their intended purpose is prohibited by an order of the Industrial Commission of Ohio or its successor in such authority." The record discloses that the so-called order is in the nature of a letter written upon the letter head of the Division of Workshops, Factories, and Public Buildings, T.P. Kearns, Division Chief, Department of Industrial Relations of the state, and is addressed to the clerk of the board of education. It states that an inspection was made of the Versailles village school on February 12, 1923, and that in consequence "the following order is issued." Requirements are then stated which are, in substance, as follows:
(1) It will be necessary to install a heating and ventilating system in accordance with Section 21, p. 2, tit. 3, of the state Building Code; (2) place all wiring in approved metal conduits in accordance with said Code; (3) provide additional glass area in various portions of the building as therein set forth; (4) replace defective treads in stairway; (5) repair defective floors; (6) provide standard hardware on exits where locks are defective, stating that the use of the building is prohibited for school purposes on and after September 1, 1923, "unless the above orders are complied with in their entirety"; (7) discontinue use of the room in the basement theretofore used for domestic science; and (8) take immediate steps to provide additional room to care for the overcrowded condition in the high school. After directing attention to certain sections of the General Code, the communication closes as follows:
"Awaiting notification immediately upon compliance, I am, Yours truly, T.P. Kearns, Chief of Division.
"Replying mention School Order No. 224."
It is contended that the Department of Industrial Relations is the "successor in such authority" of the Industrial Commission of Ohio and that the communication above referred to is not a valid order of the Department of Industrial Relations, and is not an order whereon may be predicated the issuance of bonds to provide funds for the erection of a new schoolhouse pursuant to and by virtue of the provisions of Section 7630-1, General Code.
Referring to the history of the legislation upon the subject, it is to be observed that by virtue of the provisions of Section 871-1 et seq., General Code, enacted March 12, 1913 (103 O. L., 95), the powers and duties, which prior to September 1, 1913, devolved upon the chief inspector of workshops and factories, were on the latter date conferred upon the Industrial Commission, and, thereafter, its findings and orders were required to warrant action of the board of education pursuant to the provisions of Section 7630-1, General Code, Kinsinger v. Board of Education of De Graff Village School Dist., 101 Ohio St. 298, 127 N.E. 874. A record of its proceedings was required to be kept, and any such order to be valid was required to have the approval of a majority of the members of the commission and be so shown on such record. This provision so remained until the enactment of the so-called Administrative Code, when all the powers and duties of the Industrial Commission in the respect in question here were transferred to the Department of Industrial Relations. It may be stated, however, that in 1921, Section 7630-1, General Code, was amended, eliminating the requirement of a favorable vote of the people as a prerequisite to the issuance of bonds and providing that such bonds could be issued if the use of the schoolhouse had been prohibited by an order of "the Industrial Commission or its successor in such authority."
The Department of Industrial Relations was created by the provisions of Section 154-3, General Code, which provided that it should be "administered by the director of Industrial Relations," and it is also provided by Section 154-3 that "The director of each department shall * * * exercise the powers and perform the duties vested by law in such department."
While by this act he was authorized to prescribe regulations for the government of his department, and so forth, it was required by Section 154-18 that there be provided and kept within such department "such records and journals as may be necessary to exhibit its official actions and proceedings." The same section also requires each department to have a seal, which may be affixed to writs and authentications of copies of records and official papers, and to such other instruments as may be authorized by law or prescribed by the proper authority.
It is pointed out that by the provisions of Sections 154-6 and 154-8, General Code, chiefs of divisions of said department are created, one of them being chief of the division of factory inspection, and that under the direction, supervision, and control of the director of the department he may perform such duties as the director prescribes. It seems rather significant however that the Legislature did not confer those powers and duties upon the office of chief of the division of inspection, but, on the contrary, by the provisions of Section 154-24, General Code, provided that:
"Whenever rights, powers or duties which have heretofore been vested in or exercised by any officer, board, commission, institution or department, or any deputy, inspector or subordinate officer thereof, are, by this chapter, transferred, either in whole or in part, to or vested in a department created by this chapter, or any other department, office or institution, such rights, powers and duties shall be vested in, and shall be exercised by the department, office or institution to which the same are hereby transferred, and not otherwise."
Had it been intended by the Legislature that no more should be required than the more finding and direction of the chief of the division of inspection, it would have been very easy to have so stated in language similar to that conferring such authority by the statutes in force prior to the enactment of the provision transferring that authority to the Industrial Commission. The rule of construction seems applicable that the presumption arises that the Legislature intended some change in the effect and operation of the law by a substantial change in the language of the statute. In view of the specific language employed, conferring such powers upon the Department of Industrial Relations, including authority to make orders peremptory in character, upon which a board of education may predicate its action, without a vote of the people, to issue and sell large amounts of bonds and levy taxes beyond limitations otherwise provided by statute, orders for the violation of which severe penalties are pre scribed and may be exacted, those powers should not be extended by judicial construction beyond the import of the language used by the Legislature in conferring them. On the contrary such provisions should be strictly construed.
In this instance it does not appear that there was any record in the Department of Industrial Relations of any official action taken by the department with respect to the matter in question, nor was such matter acted upon by the department, either directly or by authorizing such action by the chief inspector, or by approving same, except by an attempted approval subsequent to the action of the board of education and subsequent to the institution of this suit. Indeed, the only thing that is disclosed either in the records or the files of the department is the copy of the letter heretofore referred to, which was in the files of the chief of division, the original of which contained his rubber stamp signature placed thereon by some one in that division; but of this the chief of the division apparently had no knowledge or recollection, and at the time his deposition was taken in this case could not say whether he ever knew that "this particular order was stamped or not." The record discloses that an inspection of said school building was made by an inspector in the department, on the direction of the chief of division, pursuant to a request of the board of education communicated by letter of the clerk, and also personally by an architect, and that the power to make such order was delegated by the chief of division, Kearns, to whoever was authorized to stamp his name on it.
The doctrine of contemporary construction and application of these provisions by this administrative department, urged by counsel, can be given no consideration whatever, even if it appear that the very material amendment of the statute in 1921 had been consistently disregarded. Such action and authority therefor were challenged in the case of Schwartz v. Board of Education of Carlisle Twp. Rural School Dist., 18 Ohio App. 17, and were denied by the decision and opinion of the Court of Appeals of Lorain county, October 23, 1923. It is our view, therefore, that the rule of long-continued construction and application of a statute as so construed can be given no effect.
For the reasons stated we are of the opinion that the so-called order of the chief of division of inspection is not an order whereon may be predicated the action of the board of education in proceeding to issue bonds for the erection of a school building pursuant to the provisions of Section 7630-1, General Code. This has reference particularly to the $251,000 of bonds for the erection of a school building. Bonds were issued at the same time in the sum of $5,000, under Section 7629, General Code, to procure funds with which to buy a site for the proposed building. Concededly this action was in excess of the power conferred by the provisions of Section 7629, General Code, under which the board of education assumed to act in that respect. The action of the board with reference to these two issues of bonds, providing funds for a site and for the erection of a building thereon, was one transaction, and presumably the one would not have been sanctioned without the other. In view of this situation we are not disposed to approve the portion of the $5,000 issue authorized by Section 7629, General Code, and hold invalid only the portion which is in excess of the board's authority, as might possibly be done under other circumstances.
Our conclusion therefore is that the judgment of the Court of Appeals should be affirmed.
Judgment affirmed.
MARSHALL, C.J., JONES, DAY, ALLEN, KINKADE and ROBINSON, JJ., concur.