Opinion
Decided December 10, 1932.
Schools — Reopening suspended school, upon petition — Section 7730, General Code — Unpublished state departmental repair order, not defense for school board, when — Section 1032, General Code — "Shall" means "must," and reopening school mandatory — Board's nonfeasance not defense to statutory command — State education director's order to abandon school, not defense, when — Power of state director to refuse state aid, limited, how — Sections 7596 and 7595-1, General Code — Statutory construction — Later section on special subject takes precedence over prior general enactment — Perpetual mandamus refused to compel opening of suspended school.
1. Unpublished order of state department of industrial relations requiring new roof and ceiling as prerequisites to reopening of school held ineffective as against township residents (Sections 1032 and 1032-1, General Code).
2. Statute requiring that board of education "shall" reopen school for ensuing school year on application of parents or guardians of children within district held mandatory; word "shall" meaning "must" (Section 7730, General Code).
3. Board of education cannot create situation of its own neglect and then assert its nonfeasance as defense to statutory command (Section 7730, General Code).
4. Order of state director of education to abandon school house unless repairs were made held no defense to board of education in action to compel it to reopen school, where repairs were minor and board had sufficient money with which to make repairs (Sections 7730, 7596 [113 Ohio Laws, 260] and Section 7595-1 [114 Ohio Laws, 849], General Code).
5. Statute providing that no state aid for school shall be refused on application where certain requirements were fulfilled held to limit power of director of education to refuse state aid (Section 7596 [113 Ohio Laws, 260], and Section 7595-1 [114 Ohio Laws, 849], General Code).
6. Later section dealing with same special subject-matter has precedence over prior general enactment.
7. Perpetual mandamus compelling board of education to reopen rural school held unjustified under statute providing for reopening for ensuing school year, thus justifying mandamus to compel reopening for ensuing school year only (Section 7730, General Code).
ERROR: Court of Appeals for Monroe county.
Messrs. Matz Matz, for the relators.
Mr. John K. Sawyers, Jr., prosecuting attorney, and Mr. W.E. Moore, for respondents.
This action was originally one in mandamus brought in the court of common pleas of Monroe county, the purpose of which being that a writ should issue to the respondent trustees commanding them to make certain repairs to the school building known as sub-district No. 12 of Center township, to return thereto certain articles taken therefrom, and to hire a teacher and reopen the school. The trial court allowed the writ. A stay thereof was allowed, and respondents now prosecute error. The errors complained of are numerous. They will not be separately treated for the reason that the merit of the errors claimed may be fully considered from three separate aspects — that the judgment is contrary to law, against the manifest weight of the evidence, and the respondent trustees have not abused their discretionary power.
We regret the necessity of a prolonged statement of the pleadings and facts, but we deem such to be necessary by reason of the fact that this is the second action of its kind between the same parties. The facts of this case are enlarged by counsels' zeal and certain transactions occurring since final repose was reached in the first action.
In 1931, the respondents, as trustees, save one Charles Fisher, passed a resolution to suspend subdistrict school No. 12 in Center township, known as the "Neuhart School," and to transport its pupils to a new four-room school located in the township known as the "Kerr Consolidated School." The Kerr School had been built upon the suggestion of the state superintendent of schools, and in part by state aid; the underlying purpose being to ultimately bring all twelve subdistricts of the township to this school.
In July of that year, the patrons of the subdistrict, under and by virtue of Section 7730, General Code, petitioned the respondents to reopen the school. This the respondents denied, and proceeded with its abandonment. Blackboards, seats, desks, bell, and drinking fountain were removed therefrom.
Thereupon the first action in mandamus was begun. The answer of the board thereto was a general denial, and the board asserted that on April 4, 1930, the state department of industrial relations ordered extensive repairs to be made on the schoolhouse as a condition precedent to conducting school therein, that the schoolhouse was not a suitable building, and that the Kerr School was a good building equipped in modern fashion. As to a third defense, the board pleaded an agreement between it and the state department of education, wherein the department agreed to pay $5,000 towards the erection of the Kerr School, and the respondents agreed with the department to discontinue the one-room schools in the township and to eventually consolidate the township schools at Kerr School. The respondents further pleaded that certain one-room schools had been closed, and that the "Neuhart School" was one of the one-room schools contemplated to be closed. The respondents then pleaded that the township district required state aid, and that without such aid the schools of the township could be conducted but part time, and that the director of education on August 3 advised respondents that the board should not employ a teacher for the "Neuhart" School for the years 1931-1932, or expend any money for its repair, if the board expected state aid for the payment of the teachers and repairs.
Upon trial on these issues, the court held that the matter was within the sound discretion of the board, that it had not abused its discretion, and dismissed the relators' petition. The Court of Appeals of the Seventh Appellate District reversed this action, and remanded the cause. A motion to certify its record to the Supreme Court was then made, heard, and overruled.
Immediately thereafter the respondents returned a part of the removed property, hired a teacher, reopened the school, and conducted school therein until March 29, 1932, when the board notified the teacher that no more funds were available to pay his salary, and the school was closed. Thereupon the relators made application to the trial court for a peremptory writ of mandamus. Action thereon was stopped by state aid, furnished by the state director, which enabled the school to continue until May 16. The director then advised that no further aid would be given the school after that date.
The respondents made no attempt to repair the school or employ a teacher for the ensuing year, and on July 30, 1932, the board met and received from the relators a second proper petition to reopen the school. This the board thereafter refused, and ordered the pupils of subdistrict No. 12 transported to the "Kerr School." It thereafter bought two expensive school busses and hired drivers therefor, and the pupils were transported to "Kerr School" during the fall term.
Thereupon this second proceeding in mandamus was instituted. The petition recites, among other things, that there is a suitable building, advantageously located in the subdistrict, of sufficient size, and in as good condition as it was in the school year 1931-1932 when school was conducted there. Relators allege and prove that the repairs necessary were of a minor nature, and would cost from forty to one hundred dollars; that the board had sufficient funds with which to make these repairs, but had refused and failed to do so.
They further pleaded the fact averred in the first action, that the school is in a strictly rural community. It is charged that the respondents conspired with the state director of education to destroy the "Neuhart School," and to despoil the relators of their legal rights. To this petition the respondents make answer as in the first action. Upon trial the court found in favor of the relators, and ordered that a writ issue.
Thereafter a motion for a new trial was filed, supported by an affidavit of one of the respondents, stating that the district was without funds to conduct the school, and that state aid must be had; attached thereto is a letter under date of October 13, 1932, from the state director of education, which discloses the director's knowledge of the trial court's action, and recites that his department has the arbitrary power to withhold state aid; that it would not grant aid to the "Neuhart School;" that it was a departmental requirement that the "Neuhart School" be closed for the reasons heretofore given as a condition precedent to participation in state aid, and warning them that failure to comply with this condition would jeopardize the entire township schools' right to participate in this fund.
The motion was overruled and a peremptory writ was issued. Thereupon this proceeding in error was prosecuted. A few further facts are material. It appears that the respondents recessed the meeting of July 30 until August 20, and at this recessed meeting final order was made refusing to reopen the school; that three days prior thereto a second departmental order was made, and communicated to the respondents, ordering a new roof and ceiling in the "Neuhart School" building. This new order the board would now make, in part, responsible for its final orders made in respect to this school.
We note that this order was not published as required by Section 1032, General Code. The board had notice of this order, and no one else had. We remark that Section 1032-1, General Code, provides for an appeal from any such order so made. In this instance the board only could have appealed; it alone having notice. Before such an order can be effective as against these relators, publication thereof should have been made. As indicated, such was not done. It cannot now be asserted. An examination of the record in this suit discloses that the roof needed minor repairs, and that the ceiling sagged a bit; but the proof is overwhelming that roof and ceiling were sturdy and well constructed, and that a new roof and ceiling were not necessary.
We have read with interest and approval the opinion of this court rendered in the first action. Therein the court pointed out that Section 7620, General Code, empowered the township board of education to repair its school properties; and we note that as far back as April 4, 1930, a state departmental order required the respondents to make certain repairs, which were minor in character. The proof shows that such could have then been made at a cost of less than $100, and could now. The board was again advised by the state department to make these repairs, and the respondents neglected and refused to make them.
The seventh district court in disposing of this feature of the case observed that the board would not be heard to assert its own neglect as a defense for its abandonment of this school. It not only disregarded the statutory provision, but refused to make these minor repairs ordered by the state department. They say there was a lack of funds, yet the board had moneys with which to buy busses and employ drivers.
Section 7730, General Code, recites: "Upon petition filed with a local board of education between May 1 and August 1 of any year signed by the parents or guardians of twelve children between seven and fifteen years of age, living in the district and enrolled in school, whose residences are nearer to a certain school which has been suspended than to any other school of the district, asking that such suspended school be reopened, the local board of education shall reopen such school for the ensuing school year; provided there is a suitable school building in the territory of such suspended school as it existed prior to suspension."
We find from the evidence in this case that the resident enrollable children in this subdistrict, near forty in number, are much nearer to the "Neuhart School" than to the "Kerr School" or any other school in the township district; and that the "Neuhart School" building is a suitable one. It was suitable for the school year of 1931-1932, and the department so held by its first repair order made. In view of these conceded and determined facts, we hold that the word "shall" in the statute means must, that the statute is therefore mandatory, and that the caprice and willful neglect of the respondent board to perform its plain duty to make minor repairs cannot afford it a legal excuse for non-compliance with this second command of the statute, enjoined upon it, to reopen the school for the ensuing year; that is this present school year of 1932-1933. A board of education may not create a situation of its own neglectful making and then assert its nonfeasance as a defense to a second statutory command.
The respondents say that this action must be determined upon the law as announced in Board of Education of Albany Village School District of Athens County v. State, ex rel. Brown, 37 Ohio App. 453, 175 N.E. 217, and State, ex rel. Dennison, v. Board of Education of Canal Winchester Dist., 12 Ohio Law Abs., 529. Reverting to the first named case, we reproduce therefrom the following, quoted from Brannon v. Board of Education, 99 Ohio St. 369, 124 N.E. 235: "A court will not restrain a board of education from carrying into effect its determination of any question within its discretion, except for an abuse of discretion, or for fraud or collusion on the part of such board in the exercise of its statutory authority."
This is sound law. Now the respondents contend from these cases that the judgment of the board was based in part upon other matters than nearness and suitability; that is, the questions of lighting, heating, ventilation, and sanitation, and other factors, must be taken into consideration as having prompted the board in the exercise of its discretion. If this were true in the instant case, the argument would be well made. But, when we come to peruse the cross-examination of the board members who testified, we find that their judgment was arrived at on the exclusive features of a lack of funds, unfitness of the building due to lack of repairs, and, last, which seems to have been all-important, that state aid was necessary, that the state department was czar of that fund, and that its command must be obeyed.
We unhesitatingly reach the conclusion that, when a board of education is so dominated by the state superintendent of schools that it is unable to exercise an independent judgment, and must and does substitute its discretionary duty to the arbitrary command of another in the exercise of a statutory power conferred and imposed upon it — to be independently exercised by that other power — such supine action resulting therefrom is a failure to exercise any discretion whatsoever, and amounts to collusion, as is apparent in this case, to deny to the relators and their children the rights guaranteed them by Section 7730, General Code. We further conclude that the failure of the board to exercise any discretion is an arbitrary and unwarranted act, and an abuse of discretion of the most flagrant kind.
Perhaps what we are hereinafter about to say is unnecessary for a determination of this action, nevertheless we freely confess our inability to refrain from further comment. The respondents maintain that the state department's order of abandonment, and the threatened withdrawal of state aid, constitute a good defense; that such is true by reason of the powers conferred upon the state director of education by Section 7596, General Code, to withhold such aid. We are of opinion that this is not a defense to this action. This section provides: "If upon the examination of the situation in any school district the director of education is satisfied that any adjustments or changes in local school policy and administration should be made as a condition of participation in the state educational equalization fund, he may order such adjustments and changes to be made. For this purpose he shall have power to order any local board of education or any county board of education to exercise any power of whatsoever character in them vested by law, and such order shall be complied with forthwith, as a condition precedent to any participation in such fund."
We are not of opinion that this power vested in him is an autocratic power to do all things, other sections of the statutes notwithstanding. Section 7596, General Code, does not repeal directly or by implication those sections of the statutes which repose power in the people to resist arbitrary and undesired consolidation, centralization, or abandonment. Such a power in an officer should be, and is, wisely limited; for this is a government of the people, by the people, and for the people, and not one of despotic power in an individual appointed to serve them.
We note that Section 7596, General Code, was amended in 1929. 113 Ohio Laws, 260. If the powers therein granted are as claimed by the respondents, we direct attention to the act of the next Legislature, in 1931, Section 7595-1, General Code, 114 Ohio Laws, 849, relative to application for participation in state educational equalization fund; sinking fund, interest and bond retirement levy; and inspection and examination by director of education. Further, it is provided therein what a board of education shall do and perform in order to secure state aid, and contains the following italicized provision: "Provided, however, that no such application shall be refused if the electors of such school district have voted affirmatively on the proposition required to be submitted to them by sections 5625-18a to 5625-18c, inclusive, of the General Code, and if the board of education in making the application has levied all taxes permitted by law and under such vote of the electors."
It being, therefore, subsequently enacted "that no such application shall be refused" for state aid, if certain requirements are complied with, as the record in this case shows has been here done, we hold this clause to be a limitation on the claimed power of the director of education embodied in Section 7596, General Code, if any such had previously existed. Application of the well-recognized rule of statutory construction, in that a later section dealing with the same special subject-matter, and limiting the same, must have precedence over the prior general enactment, supports this court's conclusion.
Further digressing, we are led to say from the facts in this case that without question a preconceived plan of consolidation of Center township schools had been entered into between the state department of education and the respondents, save board member Fisher. This plan, wise or unwise, as time way disclose, seems to have been persisted in, without regard to the rights of the people of subdistrict No. 12, and of the prior order of this court and of the court of common pleas. This action was arbitrary, without sanction of law, and verges on the contemptuous.
In conclusion, we would further remark that it is our view that it was the legislative intent and policy to aid weak school districts, and to enable the children therein to obtain an education, when such districts have fully complied with the required provisions prerequisite to obtain state aid; and not to penalize the children of the district by withholding state aid as a correctional method of rebuking the parents and guardians of those children for failure to see the light of reason as seen by an appointed administrative officer. To so permit would sanction the robbing of Peter to pay Paul.
We are of opinion that the judgment of the trial court goes a bit too far in view of the last paragraph of Section 7730, General Code. We therefore modify the judgment entered in the common pleas court by striking out that part thereof which makes the order perpetual after the ensuing year, and we affirm the judgment as modified, and remand the cause.
Judgment modified and affirmed as modified.
GARVER, P.J., and LEMERT, J., concur.
Judges of the Fifth Appellate District sitting by designation in the Seventh Appellate District.