
    (Greene County Court of Common Pleas.)
    BOARD OF EDUCATION v. BOARD OF EDUCATION.
    1. Recovera of tuition of pupils attending in district other than of legal residence.— Where'permission is not affirmatively granted by a board of education to children of school age residing more than one and one-half miles from the school where they have a legal residence, to attend the nearest school in another district, there can be no recovery for the tuition of said children, by the board of education of the last named district under sec. 1022a (90 Ohio L. 295), though said children attend said school without objection by either of said boards and with the acquiescence of the first named board of education.
    2 Word ‘-permit'’ defined. — “To permit” denotes an affirmative or decided assent, and not merely allowance, sufferance or acquiescence. .
    (Decided April, 1895.)
   SMITH, J.

This cause comes into this court on appeal. Plaintiff alleges in the petition that four children of school age, who reside more than one and one-half miles from the school where they have a legal residence in defendant’s sub-district attended plaintiff’s school, the same being, the nearest district school, during the school year 1893-4, with the permission and acquiescence of, and without objection, by, defendant. That on a day named plaintiff demanded pajunent of the per capita current expense of running the school, amounting to forty-four dollars, and payment thereof was refused, and prays judgment for said amount.

By answer defendant, for a first defense, denies that said children attend plaintiff’s school by its p>eriiiissi°ii; avers that no application was ever made to defendant by said children or by any one in their behalf for permission to attend plaintiff’s school, and that if said children did attend plaintiff’s school, it was without any permission or authority granted by the defendant.

Plaintiff demurs to the above defense. Defendant does not deny that said children attended sa-'.d school with its acquiescence and without objection on its part.

The question arises whether the attendance by said children at plaintiff’s school with the acquiescence of and without objection by, defendant is within the meaning of section 4022a Ohio L., vol. 90, 295.

tíaid section provides that “the board of education of any township district, subdistrict, special or joint sub-district, within the state of Ohio, shall permit children mf school age who reside further than one and one-half miles from the school where they have a legal residence under the school laws of Ohio, to attend the nearest sub-district, special or joint sub-district school; and the per capita current expense of running the school in the district where such children attend, for the term so attending, shall upon demand of the board of education of such district be paid by the board of education of the district where such children have a legal residence. The per capita cost of running the school in all cases shall be the quotient produced by dividing the total current expense of running such school by the total number of children of school age in such district. ”

Webster defines permit — “to grant permission — to give leave — to grant express license or liberty to do.”

As distinguished from allow or suffer, permit is more positive, denoting a decided assent, either directly or by implication; allow is more negative, and denotes only acquiescence or an abstinence from prevention; suffer is used where our feelings are averse, but we do not think best to resist. The instructor of a school may suffer some things to pass' unnoticed which he does not allow, and allow certain practices for a time which he would by no means directly permit. ”

“Permit is more positive than allow or .suffer, and denotes decided assent. It implies assent given or leave'granted. ” Anderson’s Law Dictionary; 105 Ill., 558; 18 Am. Eng. Encyclopaedia, 834.

The statute provides that the board of education “shall permit, etc.” The ordinary meaning or interpretation would be that the board of education is to do some affirmative act — grant permission to certain children to attend school elsewhere. The statute does not provide that certain children shall, upon their own motion, be entitled to attend school in some school district other than the one in which they have a legal residence. It is the board of education which is to act; permit them to attend school in a district other than the one in which they have a legal residence. As applied to this case it ivas not for the children or their parents, or for the plaintiff, to detremine whether said children were, under said statute, entitled to attend plaintiff’s school. The right, or privilege granted certain children to attend school in another district is to be exercised or enjoyed by such children, by virtue of the'permission granted by the board of education of the school district in which they have a legal residence.

Jt is claimed, however, that as the act is mandatory, if the children named are in fact within the provisions of the statute, that if was not necessary that defendant should have taken affirmative action in the matter, being bound to grant such permission anyway. But the fact- that defendant in a proper case was bound to grant permission, does not do away with the necessary permission on its part.

Should a board of education in a proper case decline to grant permission, it could be compelled to grant stick permission.

This action is based solely upon the fact that the children named are within the provisions of the statute, and have attended school in plaintiff’s district. To state a cause of action it was necessary to allege, in addition thereto, that said children attended plaintiff’s school with the permission of defendant.

There are many acts of public officers, the performance of which is mandatory under the statute, yet any proceeding to enforce a right acquired by virtue of such statutory provision must be based upon a performance of such statutory duty. In case of failure, or refusal to perform, the remedy would be first to compel performance of the official duty.

Suppose that, the children named in the petition had made application to defendant to attend plaintiff’s school, and permission had been refused, it would certainly not be claimed thal, notwithstanding such refusal defendant would be liable to plaintiff on the ground that defendant should have granted the permission it refused.

The original section 4022 provided that “the hoard of any district may contract with the board of any other district for the admission of pupils in any school in such other district on such terms as may be agreed upon by such boards, and the expense so incurred shall be paid out of the school funds of the district sending such pupils.”

Under this .section, as one board of education might contract with any other board for the admission of pupils into its school upon such terms as might be agreed upon, the question arose whether in the absence of a contract- where pupils of one district had attended school in another district with the knowledge of, and without- objection by, either board of education, there would be a liability under an implied contract-for such an amount as the tuition of said pupils was reasonably worth.

But the Supreme Court, in Board of Education v. Board of Education, 50 Ohio St. 439, held that under said section there must be an express contract; that an implied contract does not arise where pupils attend in another district without, objection by either board. There must be an express agreement evidenced by action of the board of education, and not mere silent acquiescence.

In section 4022a, the matter of a contract has been eliminated, the necessity therefor being removed in the case provided for, as the section fixes the amount to be paid for tuition.

The amount to be paid in a case within section 4022a, being fixed and determined, as also the liability to pay the same upon demand, there was no necessity for the boards of education to enter into a contract which arises under the provision of the statute, where under certain conditions a board of education grants permission to pupils to attend school in another district.

But under said section there remains an affirmative act. for the board of education to perform — grant permission to certain pupils within its jurisdiction to attend school elsewhere.

Marcus Shoup, attorney for plaintiff.

M. J. Hartley, attorney for defendant.

Some reasons may be suggested why, in the application of the statute, the legislature may have contemplated that the board of education in which the pupils have a legal residence shall affirmatively act and grant express permission to attend school in another district.

Such action would constitute the authority of the board of education having charge and control of the nearest school in such other district to receive such pupils, and assume control and jurisdiction over them.

Again, the fact that a few children are taken out of one district and attend school elsewhere, would not decrease or diminish the expense of conducting the school in the first named district, for the salary of teachers and the cost of fuel, maintaining buildings, etc., would be substantially the same. Under the statute the amount to be paid for tuition is fixed, and it- might be necessary to make special provision for such payment.

Affirmative action by a board of education granting pupils permission -to attend another school would not only evidence the authority of the other board of education to receive said pupils, but would also be a recognition by the board first named of its liability to pay, and of its duty to make provision for such payment-

The demurrer to the first defense is overruled. Plaintiff not desiring to further plead, judgment is rendered in favor-of defendant-  