Opinion
No. 26832
Decided July 27, 1938.
Schools — Transfer of territory mandatory, when — Section 4696, General Code — Evidence not weighed by Supreme Court to determine number of valid signatures.
APPEAL from Court of Appeals of Fulton county.
On March 16, 1937, a petition containing names of 52 signers was filed with the County Board of Education of Fulton county to transfer a portion of the Swan Creek Township Rural School District to the contiguous Henry County School District.
The County Board of Education of the Fulton County School District at that time was formulating its reorganization plan for 1937, pursuant to Sections 7600-1 to 7600-8, inclusive, General Code. On May 21, 1937, while engaged in working upon its 1937 reorganization plan, that county board of education unanimously passed a resolution prescribing the transfer of territory in its reorganization plan for that year as requested in the transfer petition, a former resolution of the board reciting that the petition was signed by 75% of the electors and that the Court of Appeals had ruled that the transfer should be included in the organization plans. The proposed plan of organization of the Fulton County School District for 1937 was submitted to and approved by the State Director of Education, effective May 25, 1937. On June 21, 1937, the Fulton County Board of Education passed a motion to definitely table the petition for the transfer of territory to the Henry County School District.
On July 7, 1937, the relator filed an action in mandamus in the Court of Appeals of Fulton county to compel the board of education to take the necessary steps and pass the necessary legislation to transfer the territory from the Fulton to the Henry County School District as provided by law. The petition in mandamus alleged that there were 59 resident electors in the territory sought to be transferred.
On August 6, 1937, there was filed with the Fulton County Board of Education a document containing the names of 23 signers and stating that more than 25 per cent of the 59 qualified electors of the territory "withdraw and remonstrate against the transfer * * *." Of these names six were withdrawn on October 22 and 14 do not appear upon the original transfer petition.
On August 7, 1937, the county board of education filed an answer in the mandamus proceeding, denying that 75% of the electors in the territory sought to be transferred had signed the petition and alleging that the signatures to the transfer petition were secured by misrepresentation and that before any action was taken upon the transfer petition a remonstrance and withdrawal was filed containing more than 25 per cent of the electors of the district sought to be transferred. The relator filed a reply denying all allegations in the answer except such as admitted allegations of the petition.
On August 13, 1937, the County Board of Education of Fulton county passed a resolution rejecting the petition for the transfer of territory to Henry county upon the ground that a "remonstrance petition" had been filed containing more than 25 per cent of the resident electors who signed the original petition for transfer.
On October 22, 1937, there was filed with the county board of education a withdrawal from the remonstrance and withdrawal, containing the signatures of six resident electors who signed the original petition for transfer.
On October 26, 1937, there was filed with the county board of education a withdrawal and remonstrance containing seven signatures, only two of which appear upon the transfer petition.
The Court of Appeals issued an alternative writ, heard the proceedings upon the pleadings, depositions and testimony taken before a court reporter by agreement of parties, and on October 26, 1937, issued a peremptory writ.
Relator in the original action contended there were 59 electors in the territory sought to be transferred, that the original petition for transfer contained the signatures of 52 resident electors and that after taking from the original petition those who withdrew or had moved out of the district there remained 44 qualified signers and a total of 56 resident electors in the district.
The appellant contends in this court that at the time of the decision by the Court of Appeals on October 26, 1937, there were 72 electors in the territory and only 39 resident electors remained on the original transfer petition after deducting the withdrawals and removals from the territory.
Mr. A.P. Stalter and Mr. F.J. Stalter, for appellee.
Mr. John B. Meister, prosecuting attorney, Mr. Davis B. Johnson and Messrs. Knepper, White Dempsey, for appellant.
This court has made a careful study of the record in order to ascertain whether the transfer petition contained sufficient signatures of resident electors to make it mandatory upon the county board of education to transfer the territory involved, but the court will not make a detailed analysis of the status of the signers on the transfer petition, the withdrawals and the withdrawal therefrom.
There is a conflict in the testimony as to whether certain persons were residents or electors at the time the mandamus petition was filed or when the Court of Appeals issued the peremptory writ. To determine the actual number of signers at either of the times stated would require this court not only to weigh the evidence but to determine credibility of testimony. Since this court does not weigh the evidence and there is a presumption in favor of the correctness of the decision of the Court of Appeals, its judgment will be affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, WILLIAMS, MYERS and GORMAN, JJ., concur.