Opinion
No. 25133
Decided March 20, 1935.
Schools — Creation of new district by county board of education — Section 4736, General Code — Signer to remonstrance may withdraw or cancel name, when — Sustaining remonstrance a nullity, where withdrawal of signatures invalidates remonstrance — Resolution creating new district may be reconsidered and rescinded, when.
1. Any signer to a remonstrance under the provisions of Section 4736, General Code, may withdraw or cancel his name within thirty days from the time action is taken by the county board of education.
2. When there has been a number of such withdrawals or cancellations sufficient to invalidate a remonstrance, a resolution subsequently adopted by a board of education purporting to sustain such remonstrance is a nullity.
3. When nothing has been accomplished except the adoption of an original resolution by a board of education creating a new school district, such action may in good faith be reconsidered and rescinded within a reasonable time.
IN MANDAMUS.
This is an original action in mandamus instituted by the relators as taxpayers residing in the Augusta Rural School District of Carroll county, Ohio. They seek a peremptory writ to require the respondent, the Carroll County Board of Education, to appoint a board of education for a new school district claimed to have been recently created by and at the instance of the respondent.
The petition reads in part as follows:
"At the suggestion of The State Department of Education and in order to complete a plan of reorganization of the school system of Carroll County, Ohio, in the interests of economy and the better education of the pupils of said County and more particularly the pupils of said Augusta Rural School District, the respondent Board of Education did, on October 8th, 1934, by a unanimous vote adopt the following resolution:
" 'Moved by U.G. Thompson and seconded by T.E. George that a new school district be and hereby is, created from the former school district of Augusta Rural and East Rural, and that the said new school district shall include the whole of the above mentioned former districts, and that the said Augusta Rural and East Rural School District [Districts] be hereby dissolved. The said new District shall be called the East-Augusta Rural School District.
" 'The above action is taken in conformity with the provisions of Sec. 4736 G. C. O. and the laws of the State Department of Ohio in compliance with the order of the State Aid Examiner of the State Department of Education.
" 'The above action carries with it the provisions that the East Rural District shall retain its one-room schools as long as it could retain them were East Rural to become a part of any other district.'
"Relators say that within thirty days after the adoption of said resolution, a remonstrance bearing 624 names of qualified electors residing in the affected area was filed with the Respondent board; that within thirty days after the adoption of said resolution, to-wit: on November 7, 1934, a petition was filed with the Respondent Board signed by 371 qualified electors, residing in the affected area, asking that their names be stricken from the remonstrance filed as hereinbefore set out, leaving on the original remonstrance the names of 253 qualified electors who resided in the affected area, which number was less than a majority of the qualified electors residing in the territory affected by said resolution.
"Relators further say that the Respondent Board has failed and neglected and refused to appoint a Board of Education for the newly created school district as provided by Section 4736 of the G. C. of Ohio, and, that on November 26, 1934, said Board by three to two vote adopted the following resolution.
" 'Moved by U.G. Thompson that the County Board sustain the Remonstrance presented by the East Township Patrons against the creation of a new District including the East Rural and the Augusta Rural Districts. Seconded by C.W. Palmer.'
"That said action was contrary to and without any warrant or authority in law.
"Relators say that the consolidation of Augusta Rural and East Rural School Districts are necessary in order that the schools in the affected area may qualify for state aid, and, that if said consolidation is not consummated the High School located in the Augusta Rural School District will become a temporary High School and eventually will fail to qualify as a High School and will be abolished as such, and that by reason of all of the foregoing your Relators have no adequate remedy at law."
The answer specifically admits most allegations of the petition and then denies generally the others. It also alleges that on January 8, 1935, the respondent passed a resolution rescinding its resolution of October 8, 1934.
The agreed statement of facts is mainly a recital of the actions taken by the respondent and by the electors residing in the affected area.
The relators and the respondent have filed motions asking for judgment on the pleadings and the agreed statement of facts.
Mr. Paul M. Ashbaugh, for relators.
Messrs. Oglevee Oglevee, for respondent.
The resolution of October 8, 1934, recites that it was adopted under favor of Section 4736, General Code, which reads as follows:
"The county board of education may create a school district from one or more school districts or parts thereof, and in so doing shall make an equitable division of the funds or indebtedness between the newly created district and any districts from which any portion of such newly created district is taken. Such action of the county board of education shall not take effect if a majority of the qualified electors residing in the territory affected by such order shall within thirty days from the time such action is taken file with the county board of education a written remonstrance against it. Members of the board of education of the newly created district shall be appointed by the county board of education and shall hold their office until the first election for members of a board of education held in such district after such appointment, at which said first election two members shall be elected for two years and three members shall be elected for four years, and thereafter their successors shall be elected in the same manner and for the term as is provided by section 4712 of the General Code. The board so appointed by the county board of education shall organize on the second Monday after their appointment."
Of the two questions of law here requiring discussion the first relates to the effect of the resolution of November 26, 1934, adopted to "sustain the Remonstrance presented by the East Township Patrons against the creation of a new District." Counsel agree that under the decision of this court in the case of Neiswander v. Brickner, 116 Ohio St. 249, 156 N.E. 138, the 364 signers were within their rights in withdrawing or canceling their names within thirty days from the adoption of the original resolution. 36 Ohio Jurisprudence, 119, Section 82. Counsel are likewise agreed that the withdrawal or cancellation of the 364 of the 624 names from the remonstrance reduced the number of signatures to fewer than the necessary majority of the qualified electors residing in the affected territory, thus leaving no valid remonstrance upon which the respondent could predicate its "sustaining" resolution of November 26, 1934. However, counsel disagree as to the relators' contention that this "sustaining" resolution was utterly without significance. It is urged by the respondent that although the resolution sustained nothing because legally there remained nothing to be sustained, nevertheless this action by the board of education had the effect of at least inferentially indicating an intention to proceed no further and to rescind the original resolution of October 8, 1934. This court finds itself unable to so view the matter. The resolution of November 26, 1934, mentioned nothing but the remonstrance and an intention to sustain it. Conceding that the phraseology was inexpertly selected, the fact remains that the meaning thereof is clear. Therefore, it is evident that this case must be considered and decided just the same as if no remonstrance had been filed and as if the resolution of November 26, 1934, had not been adopted.
The second question involves the effect of the final resolution adopted January 8, 1935. There is no claim of bad faith or abuse of discretion. The relators contend that under the provisions of Section 4736, General Code, the action of the respondent on October 8, 1934, was final inasmuch as there was no valid remonstrance on file at the end of the thirty day period. However, it must be observed that the creation of a new school district is an administrative matter addressed to the sound discretion of the board of education. The statute employs the word "may" and contains no language indicating an intention by the Legislature to so demarcate the powers of a board of education as to prevent a bona fide reconsideration and rescission of such action within a reasonable time and before further procedure is perfecting the new plan of operation. In the instant case neither the pleadings nor the agreed statement of facts disclose that anything whatsoever had been accomplished except the adoption of the original resolution of October 8, 1934. There had been no "equitable division of the funds or indebtedness" as the statute provides; however, it is of course true that none was necessary since the creation of the new district involved no division of an existing district but merely the merger of two entire ones. Nevertheless, with reference to the many remaining administrative matters necessarily incident to such a project, nothing had been done. Necessarily considering this question as one merely of power and not of policy, this court is of the opinion that under the circumstances of this case a board of education is not precluded from a reconsideration and rescission of its original action, as was done on January 8, 1935.
Consistent with the foregoing views the motion of the relators is overruled and that of the respondent is granted. The peremptory writ is thereby denied and the action dismissed at the costs of the relators.
Writ denied.
STEPHENSON, WILLIAMS, JONES, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.