
    Clark v. Curtiss et al.
    (Decided September 23, 1927.)
    
      Mr. J. F. Hertlein and Mr. Henry Hart, for plaintiff.
    
      Mr. H. L. Peehe and Messrs. Krueger & Rosino, for defendants.
   Lloyd, J.

Plaintiff, a citizen and taxpayer of West Perkins rural school district in Erie county, on behalf of himself and other taxpayers thereof, seeks to enjoin the defendants, some of whom are members of, and acting as, the board of deputy state supervisors of elections of Erie county, and others of whom are presiding judges of certain election precincts in Perkins rural school district, from proceeding with an election to be held in said latter school district pursuant to, and in conformity with, Sections 4735-1 and 4735-2, General Code.

The above-mentioned school districts formerly constituted one district, which recently was divided into two school districts by proceedings had by the county board of education of Erie county, under the authority of Section 4736, General Code. By the election thus sought to be held, if a majority voting thereat favors such proposal, it is planned to reunite these two districts by dissolution of Perkins rural school district and joinder of the same to the newly created West Perkins special school district, thus, in effect, undoing what the county board of education had done by the taking from what was then Perkins rural school district that part thereof now constituting West Perkins special school district. Litigation followed this action of the county board of education, and a statement of the facts there involved and the law relating thereto will be found in volume 32 of the unreported decisions of this court at page 282.

Two questions are presented for consideration, one by the defendants and one by plaintiff. The defendants claim that the plaintiff, not being a resident of the school district in which the proposed election is to be held, is not privileged to bring this action. In view of the conclusion at which this court has arrived, we deem it unnecessary to examine or determine this question.

The plaintiff claims that the proceedings had and the election to be held,pursuant thereto are a nullity, because, he says, Sections 4735-1 and 4735-2, General Code, being irreconcilably in conflict with Section 4736, General Code, are, by implication, repealed thereby. All of these sections of the General Code are found in Title XIII, Chapter 5-A, Part First of the Code, under the heading “County School Districts.” The act creating the sections contained in this chapter and title were passed in 1914. Some of the sections contained therein, included among which are Sections 4735-1, 4735-2, and 4736, were amendments of sections theretofore in force. 104 Ohio Laws, p. 133, et seq.

Sections 4735-1 and 4735-2 have not since been amended and read now as when enacted in 1914. Section 4736 was amended in 1915 (106 Ohio Laws, p. 397), and in 1919 (108 Ohio Laws, pt. 1, p. 707) was again amended to read as it now appears in the General Code. Section 4736, as enacted in 1914, provides, among other things, that county boards of education shall arrange the schools according to topography and population, and to this end shall have power by resolution to change school district lines and transfer property from one to another of such districts.

As amended in 1915, the power of county boards of education was enlarged to the extent that they were given the additional authority to create a school district from one or more school districts, or parts thereof, and the section authorized the filing of a remonstrance by dissatisfied electors of the territory affected thereby.

As last amended in 1919, this section provides in part that county boards of education may, upon certain conditions, create a school district from one or more school districts, or parts thereof, reserving the right of remonstrance to the qualified electors residing in the territory affected thereby. Section 4735-1 provides, in substance, that, when a petition signed by not less than one-fourth of the electors residing within the territory constituting a rural school district, praying that the district be dissolved and joined to a contiguous district, is presented to the board of education of such district, the board shall fix the time of holding an election. Thereupon the clerk of such board is required to notify the deputy state supervisors of elections of the date of such election, and the purposes thereof, it then becoming their duty to provide therefor. Section 4735-2 provides as to what shall be done if the electors favor such dissolution, in order to consummate the joining of such district with such contiguous district.

An examination of these several sections of the General Code discloses, therefore, that, if any conflict exists between Sections 4735-1 and 4735-2 and Section 4736, such conflict has continuously existed to a greater or less degree since their enactment in 1914, at which time, as we have indicated, the General Assembly expressed in the title of the enactment containing these sections, as well as in the act itself, the intent that all of them should be equally operative. The constitutional power to determine how many and in what manner such school districts shall be created, and how those in existence may be joined or divided or dissolved, and the procedure to be followed in relation thereto, is vested in the General Assembly, and we are unable to agree with plaintiff that the statutory provisions in question are in conflict, simply because the procedure authorized by Sections 4735-1 and 4735-2, if successfully consummated, may result in combining, into one school district, territory which had theretofore constituted a single district, but had been divided into two districts by the county board of education pursuant to the authority conferred by Section 4736.

In passing, it may be suggested that at the last session of the General Assembly many sections of the General Code were repealed because obsolete, and others because unconstitutional, but nowhere among them appears any of those here in question. This is at least some additional evidence that the Legislature intends that Sections 4735-1 and 4735-2 shall continue valid and effective.

We are therefore unable to conclude that Section 4736 was intended as a substitute for Sections 4735-1 and 4735-2, or that these latter sections are so clearly in conflict with Section 4736 as not to be reconcilable therewith. So concluding, the petition of plaintiff is dismissed.

Petition dismissed.

Richards and Williams, JJ., concur.  