
    STATE ex MIARS v BOARD OF ED OF GREENE COUNTY, Etc
    Ohio Appeals, 2nd Dist, Gr.eene Co
    No 410.
    Decided Dec 26, 1934
    HEADNOTES BY EDITORIAL STAFF
    C. Luther Swain, Wilmington, for plaintiff in error.
    Marcus McCallister, Prosecuting Attorney, Xenia, for defendant in error.
   OPINION

By THE COURT

The above entitled cause is now being determined on application for rehearing presented by counsel for plaintiff in error. We have examined with care, the application and notice that grounds No. 1 and 2 are based on claimed erroneous statements of facts as stated in our original opinion. We have again examined the record and adhere to the statements of facts as hereinbefore made. These statements made by the court were merely historical and were, in no sense, substantive facts upon which the ultimate finding of the court was based. The substantive fact was that the petition of September 8 was presented at the very hour that the Board was in session, acting upon the petition of August 16th. Even if it should be conceded that the Board had the fullest information as to every reason and purpose prompting* the filing thereof, they could not be expected to follow the procedure required of them under the law and pass on the petition that day. This is the outstanding reason upon which our decision was buttressed that the action in mandamus was premature. The case cited in memorandum, Board of Education v State, 115 Oh St 333, is not in point. There is nothing in the decision that would warrant the conclusion that an action in mandamus could be filed against the Board of Education before the expiration of a reasonable time. It is our conclusion, as announced in the original opinion, that the Board was not given a reasonable time within which to act. The motion for rehearing will be overruled.

HORNBECK, PJ, KUNKLE and BARNES, JJ, concur.  