Summary
holding that the legislature may change the organization and control of the public schools without holding an immediate public referendum
Summary of this case from Mixon v. State of OhioOpinion
No. 33678
Decided October 17, 1953.
Schools — Powers of General Assembly — Provision of efficient system — Creation of districts and methods of changes therein — No vested or contractual right to continuance of methods — Legislation prescribing methods for changes in districts remedial — Section 4831-15, General Code (Section 3311.25, Revised Code), remedial and constitutional.
1. By Sections 1, 2, and 3 of Article VI of the Ohio Constitution, the General Assembly is given broad powers to provide a thorough and efficient system of common schools by taxation and for the organization, administration, and control thereof.
2. The General Assembly has the power to provide for the creation of school districts, for changes and modifications thereof, and for the methods by which changes and modifications may be accomplished, and, where it has provided methods by which changes in school districts may be made, no citizen has a vested or contractual right to the continuation of such methods.
3. Where the General Assembly has provided methods by which changes or modifications of school districts may be accomplished, such provisions constitute remedial legislation and ordinarily may be abolished or modified without impinging upon any constitutional rights.
4. Section 4831-15, General Code (Section 3311.25, Revised Code), before its repeal was a legislative enactment of a remedial nature, and Amended House Bill No. 713, passed July 1, 1953, which repealed it and provided that all rights, elections, actions, and proceedings pending under it are null and void, did not violate any provisions of either the Ohio or United States Constitution.
IN MANDAMUS.
This is an action in mandamus instituted in this court by relator, Frank L. Core, as a duly qualified resident elector of that portion of the city of Fairview Park which is in the school district of the city of Rocky River, against respondents, Ben C. Green, Alexander L. DeMaioribus, Dan W. Duffy, and Daniel H. Wasserman, the duly appointed, qualified, and acting members of the Board of Elections of Cuyahoga County, and Ray C. Miller, clerk of such board.
In his petition which was filed July 31, 1953, relator alleges the following:
At all times mentioned in such petition there was in force a statute of Ohio known as Section 4831-15, General Code, providing that the qualified electors residing within a portion of a municipality, which is part of a school district of another municipality, may petition the board of elections to submit to the qualified electors of the territory affected the proposal to transfer such portion of a territory which is in another municipality to the municipality of residence, so as to make the lines of such school district coincide with the corporate lines of the municipality of residence.
There are situated in Cuyahoga county the city of Fairview Park and the city of Rocky River which are adjacent to each other, and a portion of Fairview Park wherein relator resides has for some years been a portion of the school district which embraces all of Rocky River as well as the aforementioned portion of Fairview Park.
Relator, together with more than 10 per cent of the qualified electors in that portion of Fairview Park in the school district of Rocky River, signed a petition proposing to transfer such territory to the school district of Fairview Park so as to make the lines of such district coincide with the corporate lines of Fairview Park in accordance with Section 4831-15, General Code.
Such signed petition was filed with respondents on February 5, 1953, asking for a special election to be held at the primary election on May 5, 1953, or at the first election thereafter, and respondents duly accepted such petition with the statement that the question would be submitted at the general election on November 3, 1953.
On July 30, 1953, relator was advised by respondents that the question of the transfer of the territory would not appear on the ballot at the November 3, 1953, election.
Relator prays that a writ of mandamus issue to the respondents commanding them to prepare for and conduct an election at the general election on November 3, 1953, on the question of transferring that portion of Fairview Park which is part of the school district of Rocky River to the school district of Fairview Park so as to make the lines of such school district coincide with the corporate lines of Fairview Park.
Answers were filed by the Board of Education of the Rocky River City School District, which had obtained leave to become a new party respondent herein, the Board of Elections of Cuyahoga County, and the clerk thereof. In the answers the allegations of the petition are admitted generally and, as a defense, it is alleged that the General Assembly enacted Amended House Bill No. 713 which was signed and approved by the Governor on July 17, 1953, and which read as follows:
"To repeal Section 3311.25 of the Revised Code relative to the transfer of school territory.
"Be it enacted by the General Assembly of the State of Ohio:
"Section 1. That Section 3311.25 of the Revised Code [Section 4831-15, General Code] is hereby repealed, and all rights, elections, actions and proceedings now pending thereunder are hereby null and void."
Respondents allege that on and after October 15, 1953, and on election day, November 3, 1953, there will be no authority in law to hold the election on the proposal set forth in relator's petition or to submit the issue to the qualified electors within that portion of Fairview Park referred to in relator's petition, and that by reason thereof it is respondents' intention not to present such question at such election.
Relator filed a demurrer to the answers, on the ground that Amended House Bill No. 713 was unconstitutional in that it violated Sections 26 and 28, Article II of the Constitution of Ohio, and Section 10, Article I, and the Fourteenth Amendment of the Constitution of the United States.
Messrs. Hamilton Kramer, Mr. Joseph R. Hague and Mr. Leonard S. Frost, for relator.
Mr. Frank T. Cullitan, prosecuting attorney, Mr. Saul S. Danaceau, Mr. Emery C. Smith, Mr. Howard M. Metzenbaum and Messrs. Shocknessy, Summers Denton, for respondents.
The Board of Elections of Cuyahoga County bases its refusal to hold an election on November 3, 1953, on the question proposed by the petitioners, on the ground that on November 3, 1953, there will be no authority to hold such an election since Amended House Bill No. 713, effective October 15, 1953, not only repealed Section 4831-15, General Code (Section 3311.25, Revised Code), but provided further that all rights, elections, actions, and proceedings pending under Section 3311.25, Revised Code, are null and void.
Relator insists that, since the petition of the Fairview Park electors was filed with the board of elections while Section 4831-15, General Code (Section 3311.25, Revised Code), was in full force and effect, the board of elections has a legal duty to provide for an election on the question presented. Relator bases his contention on the grounds that Amended House Bill No. 713 violated Section 10, Article I of the Constitution of the United States, which proscribes the passage by any state of an ex post facto law or one impairing the obligation of contracts; that it violated Section 1, Article XIV, Amendments, Constitution of the United States, which provides that no state shall deprive any person of property without due process of law or deny to any person the equal protection of the laws; that it violated Section 26, Article II of the Constitution of Ohio, which provides that all laws of a general nature shall have a uniform operation throughout the state; and that it violated Section 28, Article II of the Constitution of Ohio, which provides that the General Assembly shall have no power to pass retroactive laws or laws impairing the obligation of contracts.
Relator has filed two informative and scholarly briefs in which a large number of cases are cited supporting the proposition that laws passed in violation of the constitutional provisions above mentioned are void and of no effect, and relator argues that when the residents in Fairview Park filed their petition with the board of elections in accordance with Section 4831.15, General Code (Section 3311.25, Revised Code), there arose a contractual right which belonged to them and which could not be taken away by the repeal of the statute under which that right had ripened. In other words, relator contends that, unless this court commands the board of elections to hold an election on the proposal in question, there will be an impairment of the contractual rights of the Fairview Park petitioners, an enforcement of retroactive legislation, and a denial of due process and the equal protection of the law.
It is axiomatic that the General Assembly can not pass legislation which impairs contractual rights, whether they arose under legislative enactments or otherwise, or retroactive legislation, nor can it in any way deny due process of law or equal protection of the laws. However, in our view, the enactment of Amended House Bill No. 713 did not violate any constitutional provisions.
Under Sections 1, 2, and 3 of Article VI of the Ohio Constitution, the General Assembly is given exceedingly broad powers to provide a thorough and efficient system of common schools by taxation, and for the organization, administration, and control thereof. Gigandet v. Brewer, Treas., 134 Ohio St. 86, 91, 15 N.E.2d 964. As Section 3, Article VI of such Constitution, states, "provision shall be made by law for the organization, administration and control of the public school system of the state supported by public funds."
It follows that the General Assembly has the power to provide for the creation of school districts, for changes and modifications thereof, and for the methods by which changes and modifications may be accomplished, and, where it has provided methods by which changes in school districts may be made, no citizen has a vested or contractual right to the continuation of such methods, and if a particular method is abolished or changed by legislative enactment there can be no basis for a claim that a contractual or vested right is impaired.
The General Assembly enacted Section 4831-14, General Code (Section 3311.24, Revised Code), and Section 4831-15, General Code (Section 3311.25, Revised Code), and thereby provided two different methods by which territory might be transferred from one school district to another. When the latter section was repealed the former was left intact.
It has been held so many times as to be axiomatic that a mere change in a method or proceeding not involving any substantive rights does not violate any constitutional provision with reference to retroactive legislation or to impairment of contracts, and that a statute which provides a rule of practice, a course of procedure, or a method of review is remedial in its nature. County of Miami v. City of Dayton, 92 Ohio St. 215, 110 N.E. 726.
The claim of relator, when boiled down, amounts simply to an assertion that the residents of a portion of Fairview Park secured a contractual right to an election with reference to a change in school districts, for the reason that they filed their petition for such an election while a statute was in effect giving a right to such an election. The statute providing for the election conferred only a privilege which could be exercised so long as the statute remained in effect, but just as the General Assembly had the power to grant such a privilege it also had the power to take it away.
While the statute was in effect, the petitioners had the privelege to demand an election, but, when the statute was repealed before the election was held, such privilege was taken away without any impairment of vested or contractual rights.
We would have a different question if there had been an election previous to the repeal of the statute which authorized it.
This court has held that a candidate who is properly qualified under a law for election to a statutory office has no right to have an election for that office, which the legislature has not the power to take away.
In State, ex rel. Weller, Jr., v. Schirmer et al., Board of Elections, 131 Ohio St. 455, 3 N.E.2d 352, the relator sought by mandamus to compel the board of elections to place his name on the judicial ballot for the Court of Common Pleas for a term beginning February 9, 1937, in accordance with Section 1532, General Code, which had been repealed after the relator had filed his petition for nomination for the office.
The relator contended that since he had perfected his nomination for judge prior to the date of the repeal he acquired a right to become a candidate, and that the repealing act could not apply to the term of office which he sought without constituting a retroactive and ex post facto enactment.
This court in its per curiam opinion said:
"The Court of Appeals found that relator by reason of filing such petition acquired no vested, constitutional or other right to have his petition considered by respondents for an office provided for by the repealed section; that such office ceased to exist and had been abolished; and that relator's name should not, therefore, be placed upon the ballot for an office which had been abolished subsequent to the filing of his nominating petition and previous to the election covering such office. A writ of mandamus was denied by the Court of Appeals.
"On consideration whereof it is ordered and adjudged that the judgment of the Court of Appeals be, and the same hereby is, affirmed on authority of State, ex rel. Gustafson, v. Krause et al., Bd. of Elections, ante, 97."
In the Weller case this court decided that the General Assembly had the power to abolish a statutory office and deprive a candidate, who had qualified as such, of the privilege of an election for the office. By the same reasoning the General Assembly had the power to abolish an election method of changing school districts, even though proceedings to hold such an election had been started before the abolition. In either case, simply procedural legislation was involved under which no contractual or vested rights had accrued.
Section 26, General Code, provided:
"Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act."
Section 4831-15, General Code (Section 3311.25, Revised Code), was a remedial enactment and it might be argued that Amended House Bill No. 713 would not have affected the proceeding of the Fairview Park residents and they would have been entitled to have their question submitted at the November 3, 1953, election, except for the fact that such house bill expressly provided that all rights, elections, actions, and proceedings pending under Section 3311.25, Revised Code, are null and void.
It is argued by relator that Amended House Bill No. 713 was not of uniform operation throughout the state in that it was aimed only at the Fairview Park proceeding. However, that argument is not persuasive since the statute in its terms was of uniform operation and would apply to any case that might be similar to or like the one under consideration.
The mere fact that there may be no other such cases pending does not deprive the law of its uniform-operation character.
The demurrer to the answers is overruled and the writ is denied.
Demurrer overruled and writ denied.
WEYGANDT, C.J., MIDDLETON, TAFT, HART and ZIMMERMAN, JJ., concur.
MATTHIAS, J., not participating.