
    The State, ex rel. Maxwell, Pros. Atty., v. Schneider et al.
    
      Schools — New districts — 'Section 4736, General Code — Quo war-ranto— Ouster of board members of former district — •Defenses —'Injunction pending against creation of new district — Office of former members terminates> when — Constitutional law — Notice of creation of new district.
    
    1. The pendency of an action in the court of common pleas wherein it is attempted to enjoin a county board of education from making effective its previous action creating a school district pursuant to Section 4736, General Code, is not a defense in an action in qüo warranto in this court against the members of a board of education of a school district, the whole of which has been absorbed in the creation of the new school district, the board of which has been duly appointed and qualified and has organized as provided by Section 4736, General Code.
    2. When, pursuant to the provisions of Section 4736, General Code, a new school district is created by a county board of education by proceedings in conformity with the requirements of the law, and the members of a board of education of a newly-created district are duly appointed and qualified, and such board duly organized as therein provided, the duties and authority of members of a board of education of a former school district which has been absorbed by the creation of a hew district are ipso facto terminated.
    3. The absence from the provisions of the statute relative to the creation of new school districts by the county board of education of a requirement that notice be given of action pursuant to such provisions does not invalidate the law. Section 4736, General Code, contravenes no provision of the constitution, state or federal.
    (No. 17231
    Decided November 22, 1921.)
    In Quo Warranto.
    This is an original action in quo warranto. The petition recites that on June 10, 1921, the county-board of education of Muskingum county by appropriate action and proceeding, pursuant to the provisions of Section 4736, General Code, created the Jefferson school district from-territory theretofore composing Trinway rural school district, Dresden school district, the Madison township rural school district and the east half of Cass township rural school district, and transferred the west half of the last-named school district to the Fra-zeysburg village school district in said county; that no remonstrance was filed to such action by a majority of the qualified electors residing in the territory affected by such order; and that thereafter the county board of education duly made an equitable division of the funds and indebtedness of the divided Cass township rural school district.
    It is then averred that thereafter the county board of education duly appointed certain named persons as members of the board of education of the newly-created Jefferson school district, who accepted and qualified and duly organized as a board of education of the Jefferson school district, and that no action has since been taken in any manner provided by law for the dissolution of said newly-created school district. It is then averred by the relator that the respondents John A. Schneider, W. A. Clark, G. L. Spease, C. R. Fulks and T. E. Cochran, who prior to June 10, 1921, composed the board of education of said Trinway rural school district, and the respondents Virgil V. King, J. Q. Smythe, Fred Dickey, C. P. Beck and W. S. King, who prior to June 10, 1921, composed the board of education of the Madison township rural school district, are attempting to usurp 'and officially hold and exercise office as members of boards of education in portions of territory of said Jefferson school district, and that they refuse to surrender and turn over to the duly, qualified and acting board of education of Jefferson school district the books, papers, money, property and other belongings of the former Trinway and Madison township rural 'school districts; that the persons above mentioned, who formerly constituted the board of education of Trinway rural school district, claiming and pretending to act as members of the board of education in a portion of the territory of the Jefferson school district, are attempting to submit a question of joining a portion of the Jefferson school district to a contiguous rural or village school district, and have attempted to fix the time of holding a special election for such purpose, have notified the deputy state supervisors of elections of Muskingum county thereof, and have instructed them to proceed to make provision for the holding of such election.
    The relator prays for a judgment of ouster of the respondents from the office, the duties and authority which they are seeking to exercise over a portion of said Jefferson school district.
    The defenses made by respondents to the action of the relator are voluminously' set forth in their answer, but may be briefly summarized as follows:
    (1) That no notice was given to the boards of education of the school districts known as Trinway rural school district, Dresden village school district, the Madison township rural school district, and the Cass rural school district, of the passage of the resolution creating the Jefferson school district, nor was any notice published in the newspapers or otherwise given to the taxpayers and the electors residing in said school districts. (2) That a protest was filed with the county board of education July 6, 1921, signed by 94 per cent, of the voters and duly qualified electors residing in Trin-way rural school district. (3) That the action of the county board of education is unlawful, arbitrary and unreasonable, and an abuse of discretion. (4) That no apportionment of funds or indebtedness was made at the meeting when the county board of education crfeated said new district June 10, 1921. (5) That on August 4, 1921, there was instituted in the common pleas court of Muskingum county, Ohio, and is now pending therein, an action by J. A. Schneider, a taxpayer, against J. N. Nethers et al., wherein the validity and legality of the action of the Muskingum county board of education is questioned; that a temporary injunction has been issued therein restraining said board of education from proceeding further in the creation of said school district. (6) That Section 4736, General Code, is unconstitutional and void.
    Issue is made by general demurrer of the relator to the answer of the respondents.
    
      Mr. C. A. Maxwell, prosecuting attorney, and Mr. Russell Knepper, for relator.
    
      Messrs. Meyer & Crossan, for respondents.
   Matthias, J.

The pendency of another action may be successfully pleaded as a defense only when it is clearly made to appear that such pending action is between the same parties, upon the same cause of action: The reason for such rule is that the law, which abhors a multiplicity of suits, will not permit a defendant to be harassed and oppressed by two actions for. the same cause where plaintiff has a complete remedy by one of them. It is disclosed by the answer that the action pending in the court of common pleas of Muskingum county, which is pleaded by respondents in abatement of this suit in quo warranto, is an action brought by J. A. Schneider, a taxpayer, against J. N. Nethers et al., and- it is averred that in such suit the validity and legality of the action of the Muskingum county board of education is questioned, and that the court of common pleas of Muskingum county has issued a temporary injunction restraining the Muskingum county board of education from proceeding further in the creation of said alleged special school district under the resolution passed June 10, 1921, and the members of the new district board from exercising any supervision, control or jurisdiction over the schools and school properties situated in the school districts known as Dresden, Trinway, Cass and Madison school districts.

This suit in quo warranto is neither for the same cause of action nor between the same parties. The respondents in this action are not parties either plaintiff or defendant in the injunction suit. Neither is the plaintiff, here termed relator, a party to that suit. The issue here is- the title to office and it is the only issue. Quo warranto and not injunction is the proper action for testing the; question of title to office, and in such proceeding the court of common pleas has no jurisdiction.

The respondents contend that they' still retain jurisdiction and authority as members of the boards of education of Trinway rural school district and Madison township rural school district, respectively, notwithstanding the action of the county board of education creating the new school district from territory theretofore comprising said Trin-way and Madison school districts, and other territory, and notwithstanding the appointment of members of a board of education for the newly-created school district, who have qualified and organized such board. And the respondents claim that such action of the county board is invalid.

The unconstitutionality of Section 4736, General Code, is pleaded and it is urged as a constitutional defect that no notice is required to be given to the electors or taxpayers of the action of the county board of education, and that no notice was given; but neither in the pleading nor in the brief of counsel is attention directed to any specific provision of the constitution, state or national, which is thus, violated. Section 3, Article VI of the Ohio Constitution, confers upon the legislature full power and authority over the organization, administration and control of the public school system of the state. Whether notice should or should not be given, either prior or subsequent to the action of the county board of education, is a question entirely of legislative policy, and the argument which counsel for respondents make relative thereto might well be directed to the legislative rather than to the judicial branch of the government.

The pleading that remonstrance or protest was filed by a majority of the electors of Trinway district, even if filed within the prescribed time, does not tend to show invalidity of the proceeding or in any wise warrant any interference with the further proceedings of the county board of education with reference to the creation of the new district. The provisions of Section 4736, General Code, are quite clear with reference to the filing of remonstrances and the effect thereof; and such remonstrance filed by a majority of the duly qualified electors residing in any one of the districts is of no effect whatever unless such signers constitute a majority of the qualified electors residing in the territory affected by the order complained of.

The action of a public officer, or of a board, within the limits of the jurisdiction conferred by law, is not only presumed to be valid but it is also presumed to be in good faith and in the exercise of sound judgment. Before a court will take cognizance of a claim that the action of such officer or board is unlawful, arbitrary, unreasonable, or of such character as to constitute an abuse of discretion, facts must be set forth which would warrant such conclusion. In the answer some facts with reference to distance, condition of roads, etc., are averred, but no facts are alleged which if admitted to be true would warrant the court' in substituting its judgment for that of the county board of education in a matter as to which the statute has conferred upon that board authority so full and complete.' Facts showing fraud, collusion, or such abuse of discretion as would call for the restraining action of the court, are not presented. State, ex rel. Attorney General, v. Ironton Gas Co., 37 Ohio St., 45; Brannon v. Board of Education of Tiro Consolidated School District, 99 Ohio St., 369, and County Board of Education of Hancock Co. v. Boehm, 102 Ohio St., 292.

The failure to apportion the funds and indebtedness between the newly-created district and Cass township rural school district, from which a part of the territory was taken, is also urged as a defense. However, the entries of the proceedings disclose that such order of apportionment of funds and indebtedness was in fact made, though at a subsequent meeting of the county board. A mere delay in taking such action cannot invalidate the proceeding creating the new district. The duty of ascertaining the relative valuations of the respective portions of the only district which was divided was delegated to the clerk of the board and thereafter the board ordered a division of the funds and indebtedness in a manner the validity of which has not been questioned.

The contention that the board of education of the former district is not abolished, but continues in existence, merits but little consideration. The statute to which reference has been made clearly authorizes the appointment of a board of education for the newly-created district. The members of the board of education of a district abolished in the creation of a new district have no further duties to perform, and that statute clearly contemplates that such 'boards shall cease to function. It follows without any specific provision of the statute that the creation of the board of education for a newly-created district, the acceptance and qualification of the members duly appointed thereto, and the organization thereof, as provided by law, ipso facto terminate the authority in such new district of the board of education of each district which has been wholly absorbed in the creation of the new district.

There is here no violation of Section 20, Article II of the Ohio Constitution, as suggested by counsel. That section provides that the general assembly, in cases not provided for in the constitution, shall fix the term of office of all officers. It is quite clear that the legislature may abolish an office which it is authorized to create, and no one has such a thing as a vested right therein.

Section 12303, General Code, provides that an action in quo warranto may be maintained in the name of the state against a person who usurps, intrudes into or unlawfully holds or exercises a public office within this state. The facts averred in the petition warrant the relief sought and no adequate defense thereto is made by the answer. The demurrer to the answer is therefore sustained and a judgment of ouster awarded as prayed.

Judgment for relator.

Johnson, Hough, Wanamaker, Robinson and Jones, JJ., concur.

Marshall, C. J., took no part in the consideration or determination of the case.  