Opinion
No. 36339
Decided June 1, 1960.
Schools — Transfer of territory — From one local district to another — Not authorized, when — Section 3311.231, Revised Code — Mandamus.
APPEAL from the Court of Appeals for Fairfield County.
This action in mandamus was instituted in the Court of Appeals by relator as a resident, taxpayer and elector of the Clearcreek Local School District, Fairfield County, to require the respondent board of education "to make the transfer of the territory of the Clearcreek Local School District, Fairfield County, Ohio, to the Logan Elm Local School District, Pickaway County." Relator claims respondent's duty to make the transfer arises from the filing of a petition therefor under authority of Section 3311.231, Revised Code, the reference of such petition to the board of elections, the submission of the question of transfer to the electors, and the favorable vote of the electors.
Respondent filed an answer alleging that there was no authority in law to submit to the electors a proposal to transfer the territory as requested in the transfer petition; that the respondent board of education had no power to certify the proposal initiated by the transfer petition to the county board of elections; and that the county board of elections had no power to submit to the electors the question set forth in the ballot, i.e., "shall the proposed transfer of the territory of the Clearcreak Local School District, Fairfield County, to the Logan Elm Local School District, Pickaway County, be approved?" Respondent alleges further that the election was a nullity, and that respondent has no power or authority under any law of the state to make the transfer.
Relator demurred to the answer for the reason that on its face it is insufficient in law. The demurrer was overruled and, relator not desiring to plead further, the petition was dismissed.
An appeal as of right brings the cause to this court for review.
Mr. Joe F. Asher, for appellant.
Mr. Robert E. Johnston, Messrs. Knepper, White, Richards, Miller Roberts and Mr. Hugh A. Sherer, for appellee.
The determinative issue is whether there is any authority in law by which a county board of education can transfer the territory of a local school district in one county to a local school district in an adjoining county.
Section 3311.231, Revised Code (127 Ohio Laws, 204, 206), as in effect prior to its amendment effective July 28, 1959 (128 Ohio Laws, S. 455), is controlling.
That section then provided in part: "* * * qualified electors * * * may propose, by petition, the transfer of a part or all of one or more local school districts within the county to an adjoining county school district or to an adjoining city or exempted village school district." (Emphasis added.)
That section clearly permitted a county board to transfer a local school district "to an adjoining county school district" but did not authorize a county board to transfer a local school district to a local school district of an adjoining county school district. State, ex rel. Hall, v. Miami County Board of Education, 131 Ohio St. 506.
Mandamus will not lie to compel a board of education to exercise a power which it does not possess.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.