
    Lichty v. Board of Education of Crane Township Rural School District of Paulding County.
    
      (Decided July 26, 1929.)
    
      Mr. T. T. Shcnv and Mr. S. S. Beard, for plaintiff in error.
    
      Mr. Mervin Day, for defendant in error.
   Justice, J.

The case is in this court for review from a judgment of the court of common pleas of Paulding county, and the parties stand here in the same relative position as in that court.

The action was for money only, and was originally brought before a justice of the peace, who, upon trial, found for the defendant. The plaintiff, H. C. Lichty, appealed the cause to the court of common pleas. The issue was made by a demurrer to the petition. The demurrer was sustained, and, plaintiff not desiring to further plead, the petition was dismissed and judgment rendered for the defendant. A reversal of that judgment is the object of this proceeding in error.

The essential facts are: Plaintiff is a resident of Crane township rural school district of Paulding county, Ohio. He is the father of two minor children of compulsory school age. The children reside with him. They had completed the elementary course of study of said district, and were eligible to attend a high school. No high school was maintained in Crane township rural school district, and no instructions were furnished in high school branches in said district. Prior to January 1, 1927, defendant had provided transportation for all high school pupils of said rural school district to the Paulding village high school. Since that date defendant, although requested and demanded to do so, has refused to furnish such transportation. On January 15, 1927, the county hoard of education of the Paulding county school district passed the following resolution:

“Be it resolved by the Paulding County Board of Education that in the matter of payment of high school transportation of pupils of Crane Township for the balance of this school year 1926-27, it is deemed advisable and practicable that such transportation be provided and that the Crane Township Board of Education be hereby requested to pay the transportation for the balance of the school year 1926-27.”

A copy of said resolution was served upon defendant. The defendant refused to furnish the transportation. It is averred that, by reason of the failure, neglect, and refusal of the defendant to furnish transportation for his children to any high school, plaintiff was compelled to and did provide the transportation from his residence to and from the high school at Paulding, which was the nearest high school, and more than four miles distant from his residence, and that he expended for such transportation, the sum of $44.50, which defendant refuses to repay. The prayer of the petition is that plaintiff have judgment against the defendant for $44.50, and his costs expended.

The demurrer presented two questions: First, the sufficiency of the resolution; second, the constitutionality of Section 7749-1, General Code. Of these in their order.

The resolution was adopted under and by virtue of Section 7749-1, General Code, which, so far as pertinent here, is as follows:

“The board of education of any district * * * may provide transportation to a high school within or without the school district; but in no case shall such board of education be required to provide high school transportation except as follows: If the transportation of a child to a high school by a district of a county school district is deemed and declared by the county board of education advisable and practicable, the board of education of the district in which the child resides shall furnish such transportation.”

It will be observed that the resolution alludes to the Paulding county board of education and the Crane township board of education. Strictly speaking, no such boards are known in law. The resolution, however, was passed by the board of education of the Paulding county school district, and was served on the board of education of the Crane township rural school district. Manifestly, the resolution refers to these boards. It will also be observed that the resolution does not declare in terms that the board of education of Crane township rural school district shall furnish transportation. However, the county board, by passing said resolution and causing it to be served upon the defendant, did in fact so announce and declare. A substantial compliance by the county board with the provisions of said statute, rather than a technical one, is all that the law requires. Hence it follows that the objections to the sufficiency of the resolution are not tenable.

Coming now to the second question, that is to say, the constitutionality of said Section 7749-1, General Code. The court below held said section unconstitutional for that, as it stated in its conclusion, the Legislature had therein delegated legislative power to the county board of education. With this conclusion we are not in accord.

We quote from Lewis’ Sutherland on Statutory Construction (2d Ed.), volume 1, page 148, Section 88:

“The true distinction is between the delegation of power to make the law, which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.”

In Cincinnati, W. & Z. Rd. Co. v. Commissioners of Clinton County, 1 Ohio St., 77, on page 87, Justice Ranney said:

“That the General Assembly cannot surrender any portion of the legislative authority with which it is invested, or authorize its exercise by any other person or body, is a proposition too clear for argument, and is denied by no one. * * * But * * * we think it equally undeniable, that the complete exercise of legislative power by the General Assembly, does not necessarily require the act to so apply its provisions to the subject matter, as to compel their employment without the intervening assent of other persons, or to prevent their taking effect, only, upon the performance of conditions expressed in the law.”

In State v. Messenger, 63 Ohio St., 398, at page 402, 59 N. E., 105, 106, Justice Minshall quotes from Agnew, J., in Locke’s Appeal, 72 Pa., 491, 13 Am. Rep., 716, as follows:

“The legislature cannot delegate its power to make a law, but it can make a law to delegate power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.”

In State Board of Health v. City of Greenville, 86 Ohio St., 1, at page 20, 98 N. E., 1019, 1021, Ann. Cas., 1913D, 52, Justice Donahue, in part, said:

“A court is not authorized to adjudge a statute unconstitutional where the question of its constitutionality is at all doubtful. The question of the constitutionality of every law is first determined by the Legislature itself, and every presumption is in favor of its constitutionality. Therefore it must clearly appear that the law is in direct conflict with inhibitions of the Constitution before a court will declare it unconstitutional.”

This court is, of course, bound by the pronouncements of our Supreme Court, and, in the light of these authorities, we are unanimously of the opinion that Section 7749-1, G-eneral Code, is constitutional.

It would seem that further comment will serve no useful purpose. Clearly, the petition does state a cause of action. Hence the court below erred in sustaining the demurrer and entering judgment for the defendant.

Entertaining these views, it follows that the judgment of the court below should be reversed.

Judgment reversed and cause remanded.

Hughes, P. J., and Ckow, J., concur.  