Opinion
No. 37580
Decided March 13, 1963.
Schools — Foundation program — Consolidation of districts — Effect on apportionment of funds to districts — Right to guaranteed minimum payments — Not nullified by subsequent repeal of statute — Section 3317.02, Revised Code — Statutory construction — Effect of repeal.
1. The repeal of a statute renders it henceforth inoperative, but it does not nullify the consequences of the statute's operation while in force unless such a result is directed by express language.
2. The provision of Section 3317.02, Revised Code, as in effect in 1960, that "whenever school districts are consolidated as a result of the creation of a new school district * * * the total apportionment of funds to the affected districts * * * for the year in which such consolidation takes place shall not be reduced on account of such consolidation during the next succeeding three years," conferred a right to such guaranteed minimum payment in a new school district which was created by consolidation during the effective period of that statute, which right, by the saving provisions of Section 1.21, Revised Code, was not nullified by the subsequent repeal of that provision of Section 3317.02, Revised Code.
IN MANDAMUS.
This is an action in mandamus brought originally in this court by relator, Board of Education of the Kenton City School District, to require the State Board of Education to apportion certain funds to it for the year 1962 according to the provisions of Section 3317.02, Revised Code, effective in 1960.
Effective July 1, 1960, the Hardin Central Local School District was consolidated with and its territory transferred to the Kenton City School District.
At the time of the consolidation, Section 3317.02, Revised Code, read as follows:
"There shall be paid during the calendar year 1960 and in each calendar year thereafter, to each local, exempted village, and city school district, which has a tax levy for current school operation for the current calendar year of at least ten mills, the total sum of the following factors:
"* * *
"Whenever school districts are consolidated as a result of the creation of a new school district or the transfer of territory from one or more school districts to another district or districts, pursuant to Chapter 3311 of the Revised Code, the total apportionment of funds to the affected districts under Sections 3317.02 and 3317.05 of the Revised Code for the year in which such consolidation takes place shall not be reduced on account of such consolidation during the next succeeding three years."
Thus, under the provisions of Section 3317.02, Revised Code, in effect at the time of the consolidation, the consolidated district was entitled for the ensuing three years to at least the sum of the amounts which had been due the two districts separately in 1960.
However, the General Assembly in 1961 amended Section 3317.02, Revised Code, effective January 1, 1962, to read in part as follows:
"There shall be paid during the calendar year 1962 and in each calendar year thereafter, to each local, exempted village and city school district, which has a tax levy for current school operation for the current calendar year of at least ten mills, the total sum of the following factors:
"* * *
"Foundation program moneys accruing to a district created under the provisions of Section 3311.26 or 3311.37 of the Revised Code shall not be less, in any year during the next succeeding three years following the creation, than the sum of the amounts received by the districts separately in the year in which the creation of the district became effective. When an entire school district is transferred to another school district or districts, pursuant to Section 3311.22, 3311.231 or 3311.38 of the Revised Code foundation program moneys accruing to the district accepting the transferred territory shall not be less, in any year during the next succeeding three years following the transfer, than the sum of the amounts received by the districts separately in the year in which the transfer was consummated."
This section now limits minimum grants to certain consolidated districts of which relator's district is not one.
It is relator's contention that the rights of its district are controlled by Section 3317.02, Revised Code, as it existed in 1960 at the time of the consolidation, while respondents contend that relator's district had no vested rights under Section 3317.02, Revised Code, and that it now stands in the same position as any other school district under the provisions of Section 3317.02, Revised Code, as it now exists.
Mr. Carlos A. Faulkner, for relator.
Mr. Mark McElroy, attorney general, and Mr. Victor S. Krupman, for respondents.
The single issue raised by this action is whether relator's district acquired rights under the provisions of Section 3317.02, Revised Code, which were not removed by the subsequent amendment thereof by the General Assembly.
It is relator's basic contention that such rights were preserved by Section 1.21, Revised Code, which reads as follows:
"When a section or an act or part thereof of the statutes of this state is repealed, such repeal does not:
"(A) Affect any rights or liabilities which exist, have accrued, or have been incurred by virtue of such section or act or part thereof * * *."
In commenting on this section in Summit Beach, Inc., v. Glander, Tax Commr., 153 Ohio St. 147, 151, Matthias, J., said:
"It is, therefore, well settled that where not otherwise specifically provided in a repealing statute the provisions of Section 26, General Code [Section 1.20, Revised Code], are to be construed as a part of such repealing statute.
"Section 26-1, General Code [Section 1.21, Revised Code], has not been previously interpreted by this court. It was enacted by the 97th General Assembly April 2, 1947 (122 Ohio Laws, 28, 29), as part of Amended Senate Bill No. 25, which bill repealed many obsolete sections of the General Code, but provided specifically however for the saving of the rights and liabilities enumerated in Section 26-1, General Code.
"The language of Section 26-1, General Code, when compared with Section 26, General Code [Section 1.20, Revised Code], in clear and unmistakable language evidences a legislative purpose to protect and continue the `rights or liabilities which exist, have accrued or been incurred under and by virtue of' the repealed section, and whereas the language of Section 26, General Code, protects only `pending actions, prosecutions, or proceedings, civil or criminal,' from the repeal or amendment of the statute, the newer section protects `rights or liabilities.'"
The question, of course, is whether rights were created in relator's district by Section 3317.02, Revised Code, as it existed in 1960, which are protected by Section 1.21, Revised Code.
Respondents urge first that no contract was created by Section 3317.02, Revised Code; that, a school district being a subdivision of the state, the state was privileged to change the method of apportionment; and that there can be no vested right in a public law.
That there is no vested right in an existing statute which will preclude the General Assembly from changing it is beyond question. However, this statement of rule begs the question. Although there is no vested right in a statute in and of itself, where one has acted under a certain statute and has changed his position in reliance thereon, a different question arises. That is whether rights which accrued while such a statute was in force are protected under Section 1.21, Revised Code. It is such rights which Section 1.21, Revised Code, was designed to protect.
Although the repeal of a statute renders it inoperative, the repeal ordinarily does not set aside acts which were consummated or deprive persons of rights which accrued under the statute.
The court in Opinion of the Justices, 89 N.H. 563, said:
"The repeal of a statute renders it thenceforth inoperative, but it does not undo or set aside the consequences of its operation while in force unless such a result is directed by express language or necessary implication. A status established in a manner which becomes proscribed is not lost by the mere fact of the proscription.
"Even, as here, where no question of vested rights is involved, the presumption is that the repeal of an act does not invalidate the accrued results of its operative tenure. To undo such results by a repeal is to give it retroactivity, and based upon elemental principles of justice a rule of construction avoids that effect if the language of the repeal does not clearly require it."
Most of respondents' argument is based on the principle that Section 3317.02, Revised Code, did not and could not create a contract by the state with relator, and, therefore, there is no vested right for Section 1.21 to protect. However, respondents are unduly limiting the provisions of Section 1.21. Rights are not necessarily a matter of contract; many rights arise purely as a matter of law resulting from the enactment of a statute. Section 1.21, Revised Code, protects rights which have accrued. It is not necessary that such rights should have arisen as a matter of contract or be vested rights.
Thus we are faced with the questions of whether any rights arose as to relator and whether they are accrued within the meaning of Section 1.21, Revised Code.
To define a "right" is impossible. As the court in Hampton v. North Carolina Pulp Co., 223 N.C. 535, 546, said, "right is an abstract term. It has no satisfactory definition or explanation except in connection with some concrete conception of the thing out of which it grows."
As stated above, the determination of what is a "right" in a situation such as the instant one must be made with respect to that particular situation or instance out of which it is claimed to have arisen.
To be guaranteed a minimum amount of money would be a substantive right, whether the guarantee is to a political subdivision or to an individual.
Here we have a statute which guaranteed a school district that in the event of a consolidation with another school district there would be a certain minimum payment to the consolidated district for a period of three years. Inasmuch as the statute was in force at the time of the consolidation in the present case, a right accrued to the consolidated district which, if the statute had not been amended, could have beyond question been enforced by a writ of mandamus. There was nothing discretionary about such provision.
Clearly, a substantive right accrued to the consolidated school district, which in the absence of a direct or specific repeal by the amending act fell within the provisions of Section 1.21, Revised Code.
An examination of the amending act shows no such direct repeal, and since there was no specific repeal of accrued rights it must be presumed that the General Assembly enacted such amendment with the provisions of the general saving clause in mind and intended to protect such rights. Sutherland Statutory Construction, Section 4938.
Thus, under the broad general provisions of Section 1.21, Revised Code, which contains no exception of political subdivisions from its operation, and since the school district is a distinct entity even though a political subdivision of the state, it is entitled to the protection of its accrued rights under Section 3317.02, Revised Code.
Respondents have raised a question as to the constitutionality of Section 3317.02, Revised Code, as in effect in 1960. They apparently base their argument on the proposition of law that one session of the General Assembly cannot enter into a contract which will create an obligation binding on the state for a period of more than two years, citing in support thereof the famous case of State v. Medberry, 7 Ohio St. 522. That case related to contracts with private individuals for a period of five years. It is not applicable to the present case. Here we are concerned not with a contract between the state and a private individual, but rather with a statute which provided that, in the event certain subdivisions of the state united, such subdivisions were entitled to a certain minimum apportionment of school funds. The statute did not bind future sessions of the General Assembly to appropriate money but merely provided the method of apportioning school funds as to districts which consolidated when the act was in effect. It created no contract or debt of the state but provided only a method of apportionment of school funds.
To summarize this matter, Section 3317.02, Revised Code, providing minimum payments to school districts which consolidated, created rights in those school districts which consolidated while such section was in effect, and such rights under the provisions of Section 1.21, Revised Code, were not affected by the subsequent amendment of the section.
The rights of the relator having arisen at the time of the consolidation, it is entitled to the benefits of Section 3317.02, Revised Code, as it existed at that time, and the writ of mandamus must issue.
Writ allowed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and GIBSON, JJ., concur.