Opinion
No. 37245
Decided March 14, 1962.
Schools — New district created by county board of education consolidating two districts — Tax levy outside limitation — Voted by one district before consolidation — Constitutional as to new district.
APPEAL from the Court of Appeals for Ross County.
The Board of Education of Ross County, under authority of Section 3311.26, Revised Code, passed a resolution creating a new local school district to be known as the Scioto Valley Local School District and to comprise all the territory included in the Southeastern Local School District and the Liberty-Fractional Local School District.
Prior to the effective date of the consolidation, Kellenberger, the appellant herein, brought the present action in the Court of Common Pleas seeking to enjoin the appellees from doing any act to carry out or implement the creation of such new district and to declare unconstitutional Section 3311.26, Revised Code, and the resolution creating the district, contending that the electors of Liberty-Fractional Local School District never had an opportunity to vote on the levies outside the ten-mill limitation previously passed by the Southeastern Local School District, and that this is violative of Section 2 of Article XII of the Constitution.
A demurrer to the petition was filed on the ground that the petition does not state facts sufficient to constitute a cause of action.
The Court of Common Pleas sustained the demurrer and, the plaintiff not desiring to plead further, dismissed the petition.
The Court of Appeals affirmed the judgment.
An appeal from the judgment of the Court of Appeals on a constitutional question brings the cause to this court for review.
Mr. Samuel B. Erskine, for appellant.
Mr. John S. Phillips, for appellees.
The question presented by counsel is whether the additional levy voted outside the tax limitation in one school district is valid as to the combined district, under Section 2, Article XII of the Constitution, where the district so voting is combined with another district not included in the former district at the time of the vote and which did not vote on such levy and was not a part of the taxing district at the time of such vote.
This question must be answered in the affirmative on authority of Gigandet v. Brewer, County Treas., 134 Ohio St. 86, in which the identical question was raised. The court, in that case, upheld the constitutionality of Section 4736, General Code (now Section 3311.26, Revised Code), and stated in the syllabus:
"Where a school district is created by a county board of education by the consolidation of two districts under the provisions of Section 4736, General Code, and after an equitable division of funds is made, a levy of a tax outside the one per cent limitation prescribed by Article XII, Section 2 of the Ohio Constitution as amended on November 7, 1933, on all the property in the new district, for the retirement of bonds issued for the erection of a school building by a vote of the people in only one of the districts in 1926, is not violative of the aforesaid constitutional provision."
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, 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.