Opinion
No. 37248
Decided February 21, 1962.
Schools — Statutes relating to public schools — Effective upon approval of authority other than General Assembly — Authorized by Constitution — Section 3311.06, Revised Code — Providing for transfer of territory — Not effective without approval of State Board of Education — No guides or standards given to board.
1. Section 26 of Article II of the Ohio Constitution authorizes enactment of statutes relating to public schools to take effect upon approval of an authority other than the General Assembly. (Paragraph two of the syllabus of Minshall et al., Board of Education of Union Township Rural School District, v. State, ex rel. Merritt, 124 Ohio St. 61, followed.)
2. The form of Section 3311.06, Revised Code, enacted in 1955 is constitutionally valid although some of the provisions therein for transfer of territory are not to take effect without the approval of the State Board of Education and the General Assembly gave that board no guides or standards for such approval.
APPEAL from the Court of Appeals for Franklin County.
This action was instituted by the Board of Education of the Jefferson Local School District (which board is herein referred to as the Jefferson board and which district is herein referred to as the Jefferson district) in the Common Pleas Court of Franklin County against the Board of Education of the Columbus City School District (which board is herein referred to as the Columbus board and which district is herein referred to as the Columbus district) and against the auditor and the treasurer of Franklin County.
In its amended petition, the Jefferson board alleges that on June 3, 1957, about 480 acres in the Jefferson district was annexed to the city of Columbus; that those 480 acres comprised part but not all of the Jefferson district; that the State Board of Education has not approved transfer of any portion of those 480 acres from the Jefferson to the Columbus district; that the Franklin County auditor for the years 1958 and 1959 wrongfully and unlawfully listed those 480 acres as being located in the Columbus district, determined from resolutions adopted by the Columbus board the sums to be levied for school purposes upon those 480 acres, apportioned and certified the amounts of such sums collected as due the Columbus district and drew warrants on the county treasurer for the payment of such amounts to the Columbus district; and that, unless prevented by court order, the county auditor will pursue a like course of action for the year 1960 and subsequent years. The Jefferson district asks for an accounting, injunction and equitable relief for the purpose of recovering from the Columbus district amounts collected from 1958 and 1959 school taxes levied on those 480 acres and for the purpose of requiring the county auditor to list those 480 acres in the Jefferson district for 1960 and subsequent years.
The demurrer of the Columbus district to that amended petition was sustained and, the plaintiff having elected not to plead further, judgment was rendered for defendants.
The opinion of the Common Pleas Court discloses that that court sustained the demurrer on the ground that the cause was moot.
The Court of Appeals found that the "cause is neither moot nor res judicata as to" the Jefferson district but that "the provision of Section 3311.06, Revised Code, which reads as follows:
"`* * * provided, that when the territory so annexed to a city or village comprises part but not all of the territory of a school district, the said territory shall become a part of the said city school district or the school district of which the village is a part only upon approval by the State Board of Education'
"is an unconstitutional delegation of legislative power without guides or standards to the state board * * * and therefore void and therefore the judgment * * * should be affirmed."
The cause is now before this court on appeal from that judgment.
Mr. Hugh A. Sherer and Messrs. Knepper, White, Richards, Miller Roberts, for appellant.
Mr. Russell Leach, city attorney, and Mr. Alba L. Whiteside, Sr., for appellee.
The portion of Section 3311.06, Revised Code, held void by the Court of Appeals was enacted in 1955 (126 Ohio Laws, 302) to appear after the following re-enacted portion of the statute:
"When territory is annexed to a city or village, such territory thereby becomes a part of the city school district or the school district of which the village is a part, and the legal title to school property in such territory for school purposes shall be vested in the board of education of the city school district or the school district of which the village is a part * * *."
It is reasonably arguable that the portion of this statute held void by the Court of Appeals does not involve a delegation of legislative power even though it contains "no guides or standards to the state board." State, ex rel. Allen, v. Ferguson, Aud. (1951), 155 Ohio St. 26, 41 to 44, inclusive, 97 N.E.2d 660; School District v. Callahan, Supt. (1959), 237 Wis. 560, 297 N.W. 407, 135 A.L.R., 1081; Kneale v. Jennings et al., Bd. of Edn. (1924), 111 Ohio St. 637, 146 N.E. 87. See Gigandet v. Brewer, Treas. (1938), 134 Ohio St. 86, 15 N.E.2d 964; Ross v. Adams Mills Rural School District (1925), 113 Ohio St. 466, 149 N.E. 634; State, ex rel. Maxwell, Pros. Atty., v. Schneider (1921), 103 Ohio St. 492, 134 N.E. 443.
However, in view of Section 26 of Article II of the Constitution of Ohio and our decision in Minshall et al., Board of Education of Union Township Rural School District, v. State, ex rel. Merritt (1931), 124 Ohio St. 61, 176 N.E. 888, we do not believe it necessary to determine whether any delegation of legislative power is involved.
That constitutional provision 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."
Under Section 3311.06 before its 1955 amendment, when territory was annexed to a city, that territory automatically became a part of the city school district. After that amendment, some of the provisions making such territory a part of a city school district are not to "take effect" except "upon the approval of" some "other authority than the General Assembly," i.e., the state board.
Such an act is expressly prohibited by Section 26 of Article II "except such [an act] as relates to public schools." Obviously, Section 3311.06, Revised Code, does relate to public schools. Thus Section 26 of Article II expressly recognizes the authority of the General Assembly to do what it did in Section 3311.06, Revised Code.
As stated in paragraph two of the syllabus in Minshall v. State, ex rel. Merritt, supra ( 124 Ohio St. 61), "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."
It follows that the form of Section 3311.06, Revised Code, enacted in 1955, as quoted above, is valid although some of the provisions therein for transfer of territory are not to take effect without the approval of the state board and although the General Assembly gave the state board no guides or standards for such approval.
In arguing for affirmance of the judgment of the Court of Appeals, the Columbus board contends further that the issues raised by the amended petition are not only moot but that the decision in State, ex rel. Board of Education of Columbus City School District, v. Dunn, Aud. (1959), 110 Ohio App. 329, 163 N.E.2d 694, bars the Jefferson board from raising them.
The 480 acres involved in the instant case represented only a part of the 630 acres annexed to the city of Columbus on June 3, 1957. The other part was not located in the Jefferson district.
In the Dunn case, the Columbus district sought to compel the county auditor to list the whole 630 acres as part of the Columbus district for the year 1958. The state board was permitted to intervene as a party and it filed a demurrer to the petition and contended that Section 3311.06, Revised Code, required its approval of transfer of the territory to the Columbus district before such transfer could become effective. In overruling that demurrer, the Common Pleas Court held that the provisions of Section 3311.06, Revised Code, requiring approval of the transfer by the state board could not constitutionally be applied. No one desiring to plead further, a writ of mandamus was issued ordering the auditor to list the property in the Columbus district for taxation. Apparently, the auditor complied with that order.
Subsequently, the Court of Appeals dismissed the appeal of the state board on the ground that the Columbus board had secured all the relief sought and hence the issues in its case had become moot.
The action of the county auditor, which gave the Columbus district all the relief that it sought in the Dunn case, took away from the Jefferson district what it is now trying to get in the instant case. Hence, the instant case is not moot so far as the Jefferson district is concerned. What the county auditor did in response to the mandamus order in the Dunn case actually created the controversy which gave rise to this action by the Jefferson district.
There are no allegations in the amended petition demurred to even suggesting that the Jefferson district was a party to the Dunn case or that it claims from or through a party to that case or that it was offered an opportunity to or did participate directly or indirectly therein or that it claims from or through anyone who was offered such opportunity or did so participate.
In such an instance, the judgment in that case could not adversely affect the claimed rights of the Jefferson district. Kluth v. Andrus, Dir. (1952), 157 Ohio St. 279, 105 N.E.2d 579.
Since no other reasons have been advanced in support of the judgment of the Court of Appeals, that judgment must be reversed and the cause remanded to the Common Pleas Court for further proceedings.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS, BELL, RADCLIFF and O'NEILL, JJ., concur.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.