Summary
In Marion Local School Dist. Bd. of Edn. v. Marion Cty. Bd. of Edn. (1958), 167 Ohio St. 543, 545, 150 N.E.2d 407, this court held that "[b]oards of education have only such powers as are conferred by statute."
Summary of this case from Shelby Assn. Support Staff v. School District Bd.Opinion
No. 35443
Decided May 7, 1958.
Schools — Transfer of territory — Authority of county board — Local board without authority to enjoin transfer — Not party having legal interest in action.
CERTIFIED by the Court of Appeals for Marion County.
This action was brought by the Board of Education of the Marion Local School District to enjoin the transfer of territory.
On December 31, 1953, the defendant Board of Education of Marion County adopted three resolutions to transfer territory. Resolution No. 1 provided for the transfer of territory from the Green Camp Local School District to the Meeker Local School District. The territory was uninhabited at the time. Resolution No. 2 provided for the transfer of territory from the Morral Local School District to the Meeker Local School District. Two families with children of school age resided in the territory at the time. Resolution No. 3 provided for the transfer of a part of the Marion Local School District to the Meeker Local School District. At the time, 64 children of school age resided in the district, seven of whom resided in the portion sought to be transferred. Thereafter, a petition was filed with the defendant board containing the signatures of more than 75 per cent of the electors of the Marion Local School District and requesting the transfer of all the territory of such district, including the portion named in resolution No. 3, to the Marion City School District.
Plaintiff alleges in its petition that the sole purpose of the transfers provided for in resolutions Nos. 1 and 2 was to make contiguous the territories of the Meeker and Marion local districts so that resolution No. 3 could be adopted; that the transfer of the territory does not relate in any way to the educational comfort, health or welfare of the children residing in the affected territory; that the resolutions were adopted for the purpose of manipulating and readjusting the taxable valuations of the school districts involved; and that in adopting such resolutions the defendant board grossly abused its discretion.
The prayer is for an order declaring the transfer by the defendant board of territory from the Marion Local School District to the Meeker Local School District to be null and void; for an injunction restraining the defendant board from taking any further proceedings in connection with the transfer provided for in resolution No. 3 and restraining the defendant county auditor from transferring territory from the Marion to the Meeker local district and from distributing any part of the taxes of the territories purportedly transferred; and for an order that the defendant board take action on the petition for transfer of all the territory of the Marion Local School District.
In its answer the defendant board, as one of its defenses, alleges that the plaintiff has no interest in the controversy involved in the case and is not a real party in interest.
No written remonstrance by electors against any of the transfers was filed.
The Court of Common Pleas rendered judgment for defendants.
The cause was appealed to the Court of Appeals on questions of law and fact and was heard on the motion of the defendant board to dismiss the appeal for the reason that the plaintiff is not a real party in interest and does not have capacity to maintain the action. The court found that the plaintiff is not a real party in interest and does not have the capacity to maintain the action, and sustained the motion to dismiss. The judges finding their judgment to be in conflict with the judgment pronounced by the Court of Appeals of another appellate district in the case of Board of Education of Cincinnati v. Board of Education of Cincinnati, 4 Ohio App. 165, certified the record to this court for final determination.
Messrs. Guthery, Harmon, Conkle Gracely, for appellant.
Messrs. Knepper, White, Richards, Miller Roberts and Mr. John A. Jenkins, for appellee Board of Education of Marion County.
Mr. Robert O. Stout, prosecuting attorney, for appellee Maurice C. Clements, county auditor.
The question presented here for determination is whether a local board of education has the power to employ counsel and challenge in the courts the validity and propriety of a change in the boundaries of its district.
Boards of education have only such powers as are conferred by statute. Verberg v. Board of Education of City School District of Cleveland, 135 Ohio St. 246, 20 N.E.2d 368.
The controlling statute in this case, Section 3311.22, Revised Code (Recodification Act of 1953), conferred on county boards of education the authority to transfer territory and read in part as follows:
"A county board of education may * * * transfer a part or all of a school district of the county school district to an adjoining district or districts of the county school district. Within ten days after the adoption of such resolution the clerk of the county board of education shall file with the county auditor * * * a map showing the boundaries of the territory transferred. Such transfer shall not take effect if, within 30 days after the filing of such map, a majority of the qualified electors residing in the territory transferred * * * file with the county board of education a written remonstrance against such transfer." Compare such section as amended effective January 1, 1958.
That section did not give to local boards any voice in a proposed transfer of territory or the right to remonstrate against the action of the county board. The right to remonstrate was conferred solely on the qualified electors of the territory affected.
The provisions of Chapter 3311 of the Revised Code, relative to the transfer of territory of school districts and the creation of new school districts by a county board of education, limit the right to protest the action of a county board exclusively to qualified electors, and give to local boards no voice in transfer proceedings and no right to protest the transfer of territory. Therefore, the plaintiff has no legal interest in the action of the county board here involved and is not entitled to maintain the instant action.
The judgment of the Court of Appeals is, therefore, affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.