Opinion
No. 22871
Decided June 3, 1931.
Schools — Transportation to high school — District board to furnish transportation when found advisable by county board — Section 7749-1, General Code — Constitutional law — Public school statutes effective upon approval of authority other than General Assembly — Section 26, Article II, Constitution.
1. The provisions of Section 7749-1, General Code, requiring a district board of education to furnish transportation of students to a high school when the county board of education find that same is advisable and practicable are not violative of the state constitution.
2. Section 26, of Article II, of the Constitution of the state, expressly sanctions the passage of statutes relating to public schools to take effect upon approval of authority other than the General Assembly.
ERROR to the Court of Appeals of Fayette county.
This is an action in mandamus, which originated in the Court of Appeals of Fayette county where the relator sought the issuance of a writ requiring the respondents as members of the board of education of Union township rural school district to provide high school transportation for his son, who was eligible for admission to high school work.
The questions presented grow out of two separate defenses — one challenges the constitutional validity of Section 7749-1, General Code, asserting that it is in conflict with Section 1, Article II of the Ohio Constitution, in that it purports to grant legislative power to the county board of education; the other defense rests upon the allegations that the bank which was a depository of the school fund of said school district was taken over by the superintendent of banks, together with all of the available funds of the board of education deposited therein, and that it therefore could not certify that the money for such expenditure was available, as required by Section 5625-33, General Code.
The Court of Appeals found in favor of the relator upon both of these contentions and granted the writ, and the case is here for review upon the petition in error.
Mr. Norman L. McLean, prosecuting attorney, for plaintiffs in error.
Mr. Troy T. Junk, for defendant in error.
Section 7749-1, General Code, provides as follows: "The board of education of any district, except as provided in Section 7749, may provide transportation to a high school within or without the school district; but in no case shall such board of education be required to provide high school transportation except as follows: If the transportation of a child to a high school by a district of a county school district is deemed and declared by the county board of education advisable and practicable, the board of education of the district in which the child resides shall furnish such transportation."
The county board of education is thus authorized to determine whether in a given situation transportation to a high school is advisable and practicable. If this finding is in the affirmative, then under this statute it becomes mandatory upon the board of education of the district in which the child resides to furnish such transportation.
In view of the provisions of Section 26 of Article II of the State Constitution, we need not inquire further as to the constitutional validity of the statute in question, for such enactment is there expressly sanctioned. It reads: "All laws, of a general nature, shall have a uniform operation throughout the State; nor, shall any act, except such as relates to public schools, be passed, to take effect upon the approval of any other authority than the General Assembly, except, as otherwise provided in this constitution." Thus even if under its terms the effective operation of the statute in question be deemed subject to and dependent upon the approval of the designated authority, it, being a law which "relates to public schools," is expressly authorized by this provision of the Constitution, and cannot therefore be held impliedly in conflict with some other provision thereof.
The close similarity of the facts presented by the third defense brings it within the rule clearly announced in State, ex rel. Masters, v. Beamer, 109 Ohio St. 133, 141 N.E. 851. That case is controlling and decisive of the question here presented.
On both grounds, therefore, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
MARSHALL, C.J., JONES, DAY, ALLEN, KINKADE and ROBINSON, JJ., concur.