
    McMenamy v. Board of Education of Athens County.
    (Decided October 9, 1929.)
    
      Messrs. Woolley & Rowland, for plaintiff in error.
    
      Mr. R. D. Williams, prosecuting attorney, for defendant in error.
   Mauck, J.

Thomas McMenamy, suing as a taxpayer of the Jacksonville village school district, filed his petition in the common pleas1 seeking an injunction to restrain the board of education of Athens county from turning over to a joint high school committee certain of the funds of that school district. A demurrer was sustained to the petition, judgment w!as entered upon the demurrer, and error is now prosecuted to this court. The sole question here is whether or not the petition recited facts sufficient to constitute a cause of action.

The petition pleads that at the November election, 1925, in Jacksonville school district a proposition was submitted to the electors to increase the tax levy of the district for the purpose of erecting and furnishing a new high school building for the district, and that the electors voted in favor of such increase; that bonds in the amount of $15,000 were sold in anticipation of the collection of said taxes, and the proceeds of such bond issue are now in the possession of the defendant board. It is further pleaded that the villages of Jacksonville and Trimble are adjacent to each other, and that on August 27, 1929, the boards of education of the two villages met in joint session, and by a majority vote established a joint district for high school purposes, composed of the two village districts, and created a high school committee for the joint district. Following this the board of education of the Jacksonville district by resolution ordered the proceeds of the bond issue to be turned over to this high school committee to be used for the construction of, or for an addition to, a school building in the village of Trimble, and outside of the boundaries of the Jacksonville district. It is charged that the proposed use of said funds would be contrary to the purpose for which the money was raised, and the plaintiff, Thomas McMenamy, as a taxpayer, consequently seeks to enjoin that use of the funds. The petition shows that the fund in question was created for the purpose of affording a high school building for the village of Jacksonville.

Section 7669, General Code, authorizes the boards of education of adjoining school districts to unite for high school purposes, and by the succeeding section it is provided that such high school shall be under the management of a high school committee consisting of two members of each of the boards constituting the joint district. Section 7671, General Code, provides that the high school shall be supported by appropriations from funds of each district in proportion to the property valuation of the respective districts. Section 7669 authorizes the boards of the two districts to submit to the electors of each district the question of levying a tax for the purpose of purchasing a site and erecting a building, and in such case a favorable vote must be had in both districts before the bonds can be sold for the purpose of purchasing a site and erecting a building. The petition in this case does not show that it is proposed to purchase a site, or even to erect a building, but shows that it is proposed to use the funds now in the hands of the Jacksonville board in “the construction of or an addition to a school building in the incorporated village of Trimble.” It is fairly apparent, therefore, that the two boards propose to use the high school building now owned by the Trimble district, and to put an addition thereto to take care of the needs of the new joint district. Section 7669 provides that, if the boards have sufficient money in the treasury to purchase a site and erect such building, or if there is a suitable building in either district owned by the board of education that can be used for a high school building, a vote is unnecessary, and the boards may appropriate money from their funds for the purpose of securing the high school building.

The two boards of education, in effecting a union for high school purposes, are thus given a large discretion. The statute could not be generally effective if it were otherwise. Every ease in which a union is sought almost necessarily differs from every other case in the state. The districts differ in wealth, they differ in the number of children to be educated, and these differences in turn vary in degree from year to year. Every question that arises seems to be confided to the judgment and discretion of the two boards, except in the single case of a union, where it is necessary to purchase a site and erect a building. In that case a favorable vote is required on the part of the electors of both districts. In all other cases the authority of the two boards of education is complete, and their judgment is conclusive.

In the case at bar the two boards of education do not appear to have found it necessary to purchase a site or to erect a new building. It is not clear just what is to be furnished by the Trimble board, but it would appear that it contributes a site and building to the new enterprise, and that Jacksonville contributes something like $15,000, which it has in its treasury for the purpose of securing a high school building. The propriety of this contribution was to be determined by the Jacksonville board, and there is nothing in the situation to warrant the interference of a court of equity. It is argued that the funds were raised through the favorable vote of the Jacksonville electors in 1925, and that those voters expected that the funds would be used in erecting a building Within the confines of the Jacksonville district. The petition shows, however, that the proposition voted for was not the erection of a building in the Jacksonville district, but one for the Jacksonville district, and, so voting, the electors must be supposed to have contemplated every legal use to which the funds might be put, and this included the supplying of a high school building for Jacksonville district wherever it might be lawfully located. We do not find that the defendant board of education derived any power from Section 5625-13, General Code, as amended April 27, 1929 (113 Ohio Laws, 673); nor that it required any further power than that afforded by Section 7669 et seq., General Code. The petition did not state a cause of action.

Judgment affirmed.

Middleton, P. J., concurs.

Blosser, J., not participating.  