
    Henry M. Cist v. The State of Ohio ex rel. Josiah Wilder.
    1. In considering questions arising under the school legislation of the State, such construction should be placed upon its various enactments, and the several provisions thereof, as will give harmony to our educational system, and secure, as far as practicable, its equal benefits, and the reasonable facilities for their enjoyment, to every locality.
    2. Every portion of territory within the State, not included in any of the separate school districts specified in the sixty-seventh section of “ an act to provide for the reorganization, supervision and maintenance of common schools,” passed March 14, 1853, is a constituent part of some sub-school district, and subject to the jurisdiction of the proper township board of education, as established by the first section of said act, unless it shall have been legally withdrawn therefrom; and no portion thereof will be deemed to have been so withdrawn, until it shall become included within the limits of some separate school district organized by the actual election or appointment of a separate board of education.
    3. When an incorporated village is formed within, or to include a material part of a sub-school district, no portion thereof is, by reason of such incorporation, withdrawn from the school jurisdiction of the township, but the whole continues to be a sub-school district, until the aotual election or appointment of a separate school board; and the portion of the sub-school district not included within the limits of such incorporated village is “ territory annexed thereto for school purposes,” within the meaning of the statute of March 14, 1853, “ to provide for the reorganization, supervision and maintenance of common schools.”
    4. The incorporated village of College Hill was formed, in 1866, within, and included a material part of sub-school district No. 15, in Mill Creek township, Hamilton county. No steps having been taken to organize the same, as a separate school district, under the general school law of March 14, 1853, the territory included within the village continued to form part of said sub-school district, notwithstanding it contained a population exceeding three hundred. Hence in June, 1887, it was competent for the sub-school district, including said village, to organize as a separate sohool district, under the “supplementary act to provide for the reorganization, supervision and maintenance of common schools,” passed April 9, 1867.
    5. The clerk of the board of education of a separate school district, organized under the supplementary school law of April 9, 1867, has power to fill by appointment all vacancies occurring in such board by “ death, resignation, refusal to serve, or otherwise.”
    Error to the district court of Hamilton county.
    This cause came into this court ou a petition in error to reverse a judgment of ouster entered by the district court of Hamilton county in a proceeding in the nature of quo warranto against Henry M. Cist, the plaintiff in error.
    The facts as disclosed by the record, are as follows :
    In June, 1866 a portion of sub-school district No. 15, in Mill Creek township, Hamilton county, was organized into an incorporated village, under the name of College Hill. No separate school organization was ever effected within or by said village, under the general law of 1853. The village, with the remaining territory of the sub-district from which it was carved, continued under the control of the township board of education, the same as if the village had not been organized, until June, 1867, when the entire sub district, including said village, organized into a “separate school district” under the act of April 9, 1867, “supplementary to an act passed March 14, 1853, entitled, an act to provide for the reorganization, supervision and maintenance of common schools.” (S. & S. 717)
    Of the school board elected under this separate organization Joel Strong became clerk. In May, 1871, Joel Strong resigned the position of clerk, and J. R. Davey, another member of the board, was duly elected “to fill the vacancy.” Joel Strong then resigned his membership in the board. To fill this vacancy, Henry M. Cist, plaintiff in error, was regularly appointed, both by the clerk of Mill Creek township, and by Davey, clerk of the board of said “separate district.” Soon afterwards, Amos Worthington, another member, resigned his place in the board, and Eber P. Strong was regularly appointed to the vacancy, both by said township clerk, and by the clerk of said board. Afterwards, on the 28th of May, 1871, a portion of the electors of said “ separate district,” resident within and without the limits of College Hill, by popular election, chose the relator, Josiah Wilder, to fill the vacancy occasioned by the resignation of Joel Strong. Eor the purpose of having his right determined Wilder caused this proceeding to be instituted against Cist in the court below.
    Worthington afterwards denied his resignation, and caused a like proceeding to be instituted against Eber P. Strong.
    
      These cases are both before the court, and as the questions of law involved in them are identical, the decision of one will dispose of both.
    
      Henry M. Oist, plaintiff in error, in person :
    There is no law for holding the election of May 28, 1871, and no provisions of law for the person so elected, to hold the office he claims.
    There has been no legally constituted school board on College Hill since the organization of that village in 1866. At that date the school matters there were under the charge of a sub-district board, and this board, under the supervision of the township board of education; see section 1 school law, (S. & C. 1346); and, under the law as set forth in that section, there they must remain, until taken out by due action, under section 32, (S. & C. 1358) and the school matters of the village organized as therein provided, under the law applicable to schools in incorporated villages. See section III, of the school law. S. & C. 1347.
    While we claim that there is no legally constituted school ooard on College Hill, and while we also claim that it is the duty of the electors of that village to meet at the next annual meeting, and organize as provided in section 32, of the general school law, still we admit that there is a school board de facto controlling the school interests on College Hill. Now what law governs that board, and what law applies to the management of the affairs of the school district ? It must be the law governing either one of the three following classes of school organization : 1st. That of a sub-district under the township board of education. 2nd. That of an incorporate village, or 3rd. That of a separate school district.
    1st. If there was no validity to the attempted reorganization, in 1867, of the school matters on College Hill, then they are back just where they started from, viz : a sub-district of Mill Creek township. Sec. 1, S. & C. 1346.
    2d. But if the court should find that the law governing school matters in incorporated villages, controls these cases, then, as provided by section 34 of the school act (S. & C. 1358) amended (S. & S. 720), we claim that the clerk of the school board is the proper person to fill vacancies occurring in boards of education of incorporated villages.
    See also the opinion of the State school commissioner, and of the attorney-general. School Commissioner’s 16th annual report, page 189.
    The intention of the legislature in enacting the 35th section of the law of 1853 (S. & C., 1359), was, clearly, to make, as far as possible, the boards of education of cities and incorporated villages, to take the place, in every particular, of the township boards, with respect to the educational interests of every city or incorporated village, and to clothe them, both as a board and as officers of the board, with all the functions of the township board, and the officers connected therewith.
    Now, sec. 10 of the act provides who shall constitute the township board of education, and makes the township clerk, clerk of the board. Sec. 3 provides, as shown, that the township clerk acts to fill vacancies; and, clearly, he has this duty placed on him through his official relation to the township board of education, and by reason thereof; and as the boards of education of cities and incorporated villages are clothed with the powers of township boards, and shall do ■and perform the like duties in all respects so far as applicable,” it seems very clear that the decision of the State school commissioner and the attorney-general of the State is correct, “ that when a vacancy occurs in a board of education, organized under the thirty-second section of the school law, such vacancy must be filled by appointment, made by the clerk or recorder of said board.”
    3d. As to the law regulating separate school districts, as provided for in the act of April 9th, 1867, we claim that the attempted reorganization in 1867 of the school district of College Hill has no force or validity, and that it is null and void. See first section of the act of April 9th, 1867, S. & S., 717 ; also Anders v. Spargur, 19 Ohio St. 517.
    The village of College Hill having been duly organized in 1866, by reason of suob organization, came, at tbe date thereof, under the provisions of section 32.
    Now, being under this law, it was the duty of the electors to meet as provided therein, and organize the school board of the incorporated village. What should have been done the law will presume was done at least a party who has failed to perform his duty under the law can not avail himself of such failure. And for all the purposes of these suits the school matters of the incorporated village of College Hill, were, at the date of the attempted reorganization, in June, 1867, excluded by the very terms of that law from being brought under the provision thereof.
    The election held in May, 1871, under which Mr. Wilder claims office, was held without warrant of law, and when no vacancy existed. Such an election has no force or validity. This election was held by persons residing in the incorporated limits of College Hill, joined by persons residing in the outlying territory embraced within the limits of the old sub-district. The election was held to fill a vacancy existing in the school board of College Hill.
    This election is void for a second reason : “ Where strangers participate in a corporation election, it is void.” Felton v. Com. 8 W. & S., 271.
    On the incorporation of a portion of the territory of a sub-district into an incorporated village, the territory embraced within the limits of the village comes under the law governing school matters of a village at the date of incorporation. See Canton Union school v. Meyer et al., 9 Ohio St. 580, 587.
    
      Hoadly & Johnson for defendant in error :
    Before the organization of the village of College Hill, district No. 15 was a sub-district, under the authority of the township board of education of Mill Creek township. Upon the incorporation of that village, this sub-district became, under section 32 of the school law (S. & C. 1358), a “ separate school district,” being composed of an incorporated village, “ including the territory annexed to the same for school purposes.”
    Whether, therefore, the organization actually effected in 1867, under the act of 1867 (S. & S. 717), was valid or invalid, does not affect this case. The decision in Anders et al. v. Spargur, 19 Ohio St. 577, maybe admitted to be conclusive against the right of this sub-district to organize under the act of 1867, without affecting the result here. Eor section 32 of the act of 1853 did control this sub-district, and incorporated it as a separate school district; and the action taken, the election of three directors, being as well applicable to one form of organization as the other, will be sustained under either.
    The power of the court upon the relation of Wilder to oust Cist, does not depend upon the validity of Wilder’s title, but upon the weakness of Cist’s. Gano v. The State ex rel. Robinson, 10 Ohio St. 237.
    Cist relies on two sources of title, viz. : an appointment by the township clerk, and an appointment by Davey, claiming to be clerk of the board of this separate school district. Neither of these supports his claims.
    The township clerk is ex officio clerk of the township board of education (section 10 of the act of 1853, S. & C. 1353), but he has no duty to perform in relation to separate school districts. {Section l,p. 1346.) His power to fill vacancies, by section 3, page 1347, is limited to cases of vacancy in the office of director of a sub-district, and extends neither to township boards, nor to the boards of separate districts.
    As to the appointment by Davey. We object that he was not in fact clerk of the board. The proof shows that he was merely clerk pro tern., for the purpose of keeping the minutes of the meeting at which Strong, the clerk, resigned. His functions ended- with that meeting. It was not the purpose to elect him permanent clerk.
    But had he been permanent clerk he would not have possessed this power. There is no law which confers upon the clerk of a board of education in a separate school district the power to fill vacancies. He is not, like a township clerk, an independent officer chosen by the whole township, and in whose disinterested charge might well reside the power of selecting directors of sub-districts in case of vacancy. He is a member of the board, one of three members of equal dignity, to whom is committed the office of clerk of the board, because of real or fancied superiority in clerical ability, or for some other reason equally unconnected with the power in question.
    Section 34 of the act of 1853 (S. & C. 1358) undoubtedly requires the clerk of the board of education in separate school districts “ to do and perform all the duties required of the clerk of a township board of education.” It is also true that the same section originally made the clerk or recorder of a city or village ex officio clerk of the board of education. But, in 1862, this section was repealed and a substitute adopted (S. & S. 720) according to which it is made “the duty of said board of education of such city or incorporated village, at their first annual meeting, to elect from their own number a clerk or recorder, and the person receiving a majority of all the-votes cast shall be declared elected for one year therefrom or during the pleasure of said board, and he shall do and perform all the duties required of the clerk of a township board of education,” etc. Now, waiving the question whether Davey was such clerk as here described, we ask by what authority could he fill a vacancy? The clerk of the township board of education has no such power. His duties are manifold: see the act of 1853, passim. This is not among them.
    And the practice, under the advice and instructions of the state school commissioner, has not, since the amendment of 1862, been for the clerk of the board to appoint. See Ohio School Laws, edition of 1865, published and circulated by the commissioner, note 105, on page 58. The instructions contained in this book are issued in pursuance of sections 53 and 54 of the act of 1853.
    It follows that the vacancy must necessarily be filled in the manner provided for an original selection. And this is the right and reasonable way, and thus we avoid the mischief that a minority of the people, through the accident that their representative in the board of education, at the moment of the occurrence of a vacancy, happens to be clerk, may possess themselves of the control of power which rightfully belongs to the majority.
    It was argued that this school district never had been rightfully organized as a separate school district, and was, and is still, a sub-district under charge of the township board. If so, none of the elections have been lawful, and the offices, including that of Davey, are vacant, and must be now filled, in the manner provided in section 4 of the act of 1853 (S. & C. 1347), viz : by election by the people.
   West, J.

Of the questions raised on this record, the first in order is the inquiry, was the “ separate school district formed under the supplementary act of April 9, 1867, a legal organization ?

In considering questions arising under the school legislation of the State, such construction should be placed on the various enactments, and their several provisions, as will give harmony to the school system and secure, as far as practicable, its equal benefits, and the reasonable facilities for their enjoyment, to every locality, without doing marked injustice to any. Observing this rule, and extending the principle recognized in Canton v. Meyer et al. 9, Ohio St. 580, to villages incorporated subsequent to the passage of the general school law of 1853, an easy and rational solution of the questions arising in this case is furnished.

The supplementary school law of April 9, 1867 (S. & S. 717) provides that “any sub-district, or any two or more contiguous sub-districts containing not less than two hundred and seventy-five inhabitants, may become a separate school district,” &c., and then adds, “but the provisions of this act shall not extend to, or include any city, town, or incorporated village, now governed as to schools, by any special law, or by the Alerón law, or by the law for the better regulation of the public schools in cities, towns, etc. passed, February 21, 1849,” &c.

As the act does not, in terms, exclude from its operation cities, towns and incorporate villages, other than those specified, it was competent in the oi'ganization, under it, of sub-district No. 15, as a “separate school district,” to include therein the incorporated village College Hill, unless the same had ceased to constitute a part of said sub-district, by operation of the general school law of March 14, 1853, (S. & C. 1346.)

Section one of the last named act, after constituting townships into single school districts, to be under the control of township boards of education, and the then existing school districts and fractional districts into “sub-school districts,” to be controlled by boards of local directors under the supervision of the township boards, excepts from the operation of the act the cities, towns and incorporated villages specified in the sixty-seventh section thereof, which are the same excepted from the operation of the supplementary act of April 9, 1867, (S. & S. 717) and then enacts “that nothing in this act shall be so construed as to give to the township boards of education, or to the local directors of sub-districts, jurisdiction over any territory in the township' included within any city or incorporated village, with the territory thereto annexed for school purposes, which shall elect or appoint a board of education, as hereinafter provided.”

Section 32 of this act provides that “each city or incorporated village, including the territory annexed to the same for school purposes, not otherwise specially regulated by charter, or otherwise governed as to schools, by laws as specified in the sixty-seventh section of this act, and which, with the territory annexed, contains not less than three hundred inhabitants, shall be and is hereby created a separate school district; and the qualified voters of such city or incorporated village, with the territory annexed, shall, at the same time and in the same manner that local directors of the sub-districts of the township are elected by the provisions of this act, proceed to elect three persons who shall constitute a board of education for such city or incorporated village with the territory annexed,” &c.

The thirty-second section would seem to be peremptory, and withdraw from the jurisdiction of the township every incorporated village with the territory annexed, upon the instant it attained three hundred inhabitants, without regard to whether it takes steps to effect a separate organization or not. But this cannot have been intended; for section one excludes from the school jurisdiction of township boards not every incorporated village with the territory annexed, nor every such village upon its acquiring three hundred inhabitants, but every such village which shall “elect or appoint a board of educationFrom this language it is quite apparent that the election or appointment of a certain board of education, or, in other words, that the organization of every such incorporated village into a separate school district, must be effected as a condition precedent to the cessation of township jurisdiction over it.

A portion of territory containing much less than three hundred inhabitants could, before the enactment of the municipal code of 1869, become incorporated as a village. But such incorporation clearly did not withdraw it from the control of the township board. The village and the territory of the sub-district from which it may have been carved, continued to be united or annexed for school purposes, under township authority, until the requisite population was acquired.

But would its attainment of three hundred inhabitants, on the day or the week following the time for electing a board, withdraw it instantly from the school privileges and jurisdiction of the township ? It could not effect an organization until the next year. It would, therefore, be left without, and powerless to avail itself of, school benefits for an entire year. This could not have been intended. The first section plainly implies the contrary, and that it shall continue under township jurisdiction until a separate organization be effected, notwithstanding it shall have sooner acquired three hundred inhabitants.

The rational interpretation of the several sections, therefore, is, that every incorporated village continues to be a conatituent part of the sub-district within which it is formed, and subject to the school jurisdiction of the township, until the power of separate organization shall have been exercised, the portion of the district not included within the village being “territory annexed” thereto, in the sense of the statute.

But before such village and the “ territory annexed” attain a population of three hundred, they may organize as a separate school district under the act of April 9, 1867, which requires them to contain only two hundred and seventy-five inhabitants in order to effect the same. Now, when, after such separate organization under the act of 1867, the population of the village alone shall have reached three hundred, does it, eo instanti, cease to be a part of the separate district so organized, and become an independent district under the act of 1853, by force of section thirty-two? Surely not. We think the entire district, including the village and the territory annexed, may reorganize under the latter act, but its parts do not sever.

But let it be supposed that, before any separate organization under either act, the aggregate population of the sub-district has attained three hundred, that of the included village being much less, does any reason exist why such sub-district, including the village, may not organize and become a separate district under the act of 1853, as “ an incorporated village with the territory annexed ? ” None can be perceived; and it is certainly not repugnant to the provisions of section thirty-two.

But separate organization in the case last supposed is not obligatory. Let it be further supposed, then, that no such organization is effected until the village population alone reaches three hundred, is a severance of the village from the residue of the district instantly wrought by force of section thirty-two ? And does a reason then arise why they may not join in organizing a separate district, as an “incorporated village with the territory annexed,” the same as in the case first supposed ? To us it seems that both of these questions must be answered in the negative; otherwise, it might occur that the portion of the district not included in the village, which may have contributed substantially to the interests and efficiency of the schools within the limits of the latter, might be thus excluded from and denied the benefits of such schools, and left destitute of all educational advantage, which it is unreasonable to presume the statute intended. Still less reasonable is it, that three hundred inhabitants, part of a sub-district, may, by voluntarily pro- ’ curing themselves to be incorporated as a village, monopolize all its material and substantial school interests, its edifice and apparatus, to the exclusion and great prejudice of the remaining part.

It is not a sufficient answer, that such remaining portion continues under and may be provided for by the township board. The provisions already made for other portions of the township may not be such as to accommodate this; and we cannot think the legislature intended the educational interests of any locality or part of a district should be thus precarious and dependent on the jealousy or caprice of a neighboring locality or adjacent part.

The reasonable construction of the several provisions of the school act then is, that when an incorporated village is formed within, or to include a material and substantial portion of any sub-district, no part thereof is, by reason of such incorporation, withdrawn from the school jurisdiction of the township, but the whole continues to form and constitute one sub-district, under township authority, until the actual organization of a separate district is effected, in which the inhabitants of that portion not included within the village limits may participate, it being, in the sense of the statute, “ territory annexed.” Nor can their severance be legally effected without the joint action of the township and district boards of education as provided in section thirty-two.

No steps having been taken to organize' any part of sub-district No. 15 in Mill Creek township, into a separate district, under the act of 1853, the village of College Hill, notwithstanding its population exceeded three hundred, con-tinned to be part of said sub-district until June, 1867, at which time the entire sub-district was legally organized as a separate district under the act of April 9, 1867.

By the act of March 14, 1858, the township clerk is made clerk of the township board of education, and, as such, has devolved upon him, among others, the duty of filling vacancies in the board. (S. & C. 1347, § 3.)- By section 34 of the act, as amended, (S. & S. 720,) the board of education of the separate school districts are required to elect from their own number a clerk, who is clothed with all and singular-the powers and duties, in respect to such schools, which are devolved upon the clerk of the township board in respect to schools under its charge; one of which is to fill vacancies in the board by appointment. By the fifth section of the act of April 9, 1867, the board of education of the separate districts are invested with all the powers and charged with all the duties which by law are devolved on the boards of education of the separate districts organized under the act of March 14, 1853. The clerk of the board of education of separate school district No. 15 of Mill Creek township possesses the power legally to fill, by appointment, vacancies occurring therein by death, resignation, &c.

Wherefore, Henry M. Cist, the plaintiff in error, having been duly appointed to fill a legal vacancy in said board by the clerk thereof, is entitled to hold and exercise said office until the regular election of members of said board next ensuing.

The judgment of the district court is reversed with costs, and the cause remanded for further proceedings.

Welch, C. J., and White, Day and McIlvaine, JJ., concurred.  