
    The County Board of Education of Hancock County v. Boehm et al.
    
      Schools — New districts created, how — Section 4736, General Code —Scope of power of county board — Remonstrance by electors — Statutory construction — Repeals and new enactments — Presumption as to legislative intent.
    
    1. When an existing statute is repealed and a new and different statute upon the same subject is enacted, it is presumed that the legislature intended to change the effect and operation of the law to the extent of the change in the language thereof.
    2. Where the legislature in plain and unambiguous language within the scope of its constitutional power vests the power and discretion in a county board of education to “create a school district from one or more school districts or parts thereof” no presumption arises that it was the intention of the legislature that the power and discretion thus vested in such board was intended to be limited or controlled by other sections of the Code theretofore enacted and unrepealed, providing for an entirely different mode of transferring territory from one district to another.
    3. Section 4736, General Code, vests in the county board of education the power to create a new school district from an existing district and a part of another existing district, and, in the absence of fraud, bad faith, or the taking of such arbitrary, whimsical and unreasonable action by the board as amounts to an abuse of discretion, the only limitation upon such power and discretion is the limitation contained in that section providing for a remonstrance by a majority of the qualified electors residing in the territory affected by such order.
    (No. 16790
    — Decided April 26, 1921.)
    Certified by the Court of Appeals of Hancock county.
    
    
      On and prior to the 13th day of December, 1913, there existed in Hancock County School District a village district named the Rawson Village School District, which district included the territory of the village of Rawson and a portion of the territory of Union Township, in which township the village of Rawson is located. The Rawson Village School District was not an exempted village district, but was under the supervision of the County Board of Education of Hancock county. On and prior to that date there also existed in the Hancock County School District the Eagle Township Rural School District also under the supervision of said board, adjacent to the Rawson Village School District. On that day, the County Board of Education of Hancock County duly passed a resolution under authority of Section 4736, General Code, creating a new school district from the Rawson Village School District and a part of the Eagle Township Rural School District and naming the new district the Rawson School District. Within thirty days thereafter a majority of the electors residing in that portion of the Eagle Township Rural District which was incorporated in the new district filed a remonstrance against the creation of the new district. The remonstrance was not signed by a majority of the electors of the entire new district. Suit was brought by the defendants in error in behalf of themselves and others similarly situated to compel the plaintiff in error to rescind its resolution and to enjoin the Board of Education of the Rawson School District from exercising jurisdiction over the portion of the school district taken from the Eagle Township Rural District-
    The petition is lengthy, but counsel for defendants in error state the following as the essential averments thereof:
    “(a) That the three sub-districts or school territories sought to be detached and transferred by the county board of education were each provided with adequate school houses, fully equipped for school purposes, and had to the time of the action of the county board maintained good and adequate schools therein.
    “(b) That the place and buildings which would be provided by the action of the county board for the pupils of the transferred districts to attend are unsanitary, and that the distances from the homes of the pupils so transferred are excessive.
    “(c) That the action of the county board was taken without a petition from any of the residents of the transferred territory, and that within the time limited by law a remonstrance, duly signed by a sufficient number of electors against the action of the county board, was filed with it and to which it paid no attention.
    “(d) That the action of .the county board was not taken for the benefit of the pupils of the transferred territory, but instead for the express and only purpose of adding taxable territory to the Rawson village district to aid that district in the payment of a bonded indebtedness; and,
    “(e) That the action of the county board was an abuse of discretion, obnoxious to equity and contrary to the spirit and letter of the provisions of law conferring authority upon it to transfer parts of one district to another.”
    A demurrer was filed to this petition upon the ground that it does not state facts sufficient to constitute a cause of action.
    Upon the hearing of the demurrer in the court of common pleas the same was overruled and the following entry spread upon the journal:
    “Upon consideration whereof the court this 12th day of April, 1920, finds: -
    “First. That the action of -the defendant, the County Board of Education, as set forth in the petition of the plaintiffs was in fact a transfer of a portion of the territory of a rural school district to a village school district, and that its act in the matter was made ineffective by the filing with it of a remonstrance against its action within thirty days thereof, signed by a majority of the electors residing in the territory sought to be so transferred.
    “Second. That under the provisions of law, county boards of education have no jurisdiction to create new district, unless, and until the question of the dissolution of the districts or parts of the districts to be affected by such creation has been submitted to the board of education of such districts on petition, or the board of education of such district has caused the question of dissolution to be voted upon by the electors in the district affected at a general or special election as provided by law.
    “Third. That as the petition of the plaintiffs avers that no petition conformable to law was filed with the defendant Board of Education of the district to be affected, and that remonstrance signed by the majority of the electors in the sub-districts sought to be transferred was duly filed to the action of the County Board of Education complained of, the petition of plaintiff states a cause of action and is not subject to the demurrer of the defendant, the County Board of Education; and that the same should be overruled and dismissed.
    “And the defendant, the County Board of Education, not desiring to plead further and the other defendants being in default for answer or other pleading to said petition:
    “Now, therefore, it is ordered, adjudged and decreed that said demurrer be and the same is hereby overruled and dismissed and that the plaintiffs have the relief in their petition prayed for, viz., that the said defendants as boards and members of said board of education are enjoined from further carrying into effect the said action of the County Board of Education in transferring the property in the petition described from the Eagle Township District to the Rawson District; and that the said County Board of Education rescind its action upon its record in said matter and restore the property, if any, taken from said Eagle Township District to the proper officers thereof; or that the decree of this Court stand in lieu of such rescission; and that said school districts involved in said matter remain in form and proceed in the performance of their functions in all matters the same as if the action of said county board of education had not been taken. And it is further ordered and decreed that the costs in this action be paid by the defendant, the county board of education.”
    
      Error was prosecuted to the court of appeals, which court upon hearing caused the following entry to be spread upon its journal:
    “July 31, 1920. This cause came on to be heard and was heard at a former day of this term of said court and was by said court taken under consideration. And the same having been duly considered, and coming on now this thirty-first day of July, 1920, for decision, on consideration thereof, it is found and adjudged that the judgment of the Court of Common Pleas of Hancock county, Ohio, therein is affirmed.
    “It is therefore considered that said defendants in error recover of plaintiff in error their costs herein,” etc.
    The judges of the court of appeals certified that they found the judgment upon which they had agreed was in conflict with the judgment pro-, nounced upon the same question by another court of appeals of the state, and the cause was, therefore, certified to this court for review and final determination.
    
      Mr. Chester Pendleton, prosecuting attorney; Mr. Harlan F. Burket, prosecuting attorney, and Mr. Russell Knepper, for plaintiffs in error.
    
      Mr. A. G. Fuller and Mr. Chas. E. Jordan, fox: defendants in error.:
    
      
       Certified as being in conflict with Shearer et al. v. Board of Education of Stark County, in which case the Coqrt of Appeals of Stark county rendered judgment upon the authorities and reasons set forth in the opinion of the court of common pleas. — Reporter.
    
   Robinson, J.

An inspection of the case of Shearer v. Board of Education of Stark County, the case with which the court of appeals of the Third Appellate District found its judgment to be in conflict, discloses that the question there under consideration was the construction of Section 4736, General Code, as it existed in 106 Ohio Laws, 397, prior to the last amendment thereof in 108 Ohio Laws, pt. 1, 707.

We conclude from an inspection of the journal entry of the court of common pleas in this case, and of the journal entry of the court of appeals in connection with its certificate of conflict, that the only question raised and decided in the courts below was as to the scope and effect of Section 4736, General Code, and the extent, if at all, in which the construction of that section is controlled by Sections 4692, 4735-1 and 4735-2, General Code, with reference to the power of a county board of education, in the proper exercise of its discretion, to create a new district out of one entire existing district and a part of another existing district, and the limitations upon that power by a remonstrance of the electors. We will, therefore, confine our consideration to that subject. Board of Commissioners of Mercer County v. Deitsch, 94 Ohio St., 1; State v. Wirick, 81 Ohio St., 343; Springfield, Jackson & Pomeroy Rd. Co. v. Western Ry. Construction Co., 49 Ohio St., 681; Pollock v. Cohen, 32 Ohio St., 514; 3 Corpus Juris, 694, 727, 794.

A review of the extensive and ever.changing legislation of this state upon the subject of its public schools, their management by the various boards, the various means of selecting such boards, and the various modes of creating and changing districts and apportioning territory and pupils among the districts, is interesting only as illustrative of the evolution of our present public school system, in keeping with the changing standards of comfort, health and education.

The fact that almost each succeeding general assembly has seen fit to revise or repeal the school legislation of its predecessor is instructive only in its emphasis of the fact that any system thus far discovered and adopted has failed to give general satisfaction. The whole structure having been built piecemeal by different legislators living at different times under different conditions and having in view different standards of attainment, the usual result has followed, to-wit, an inconsistent, inharmonious, and in some respects unintelligible code governing the powers and duties of boards of education ; and it is this situation which gives rise to the conflict between the conclusion arrived at by the lower courts in the instant case and the conclusion reached in the case of Shearer v. Board of Education, above referred to.

Before the creation of the county board of education, provision was made for township boards, special district boards, and the various other varieties of school boards then by law existing, to agree among themselves upon the distribution of territory, and provision was made for an appeal to. the probate court. The operation of that system resulted in much litigation, for.it was early discovered that each district was ambitious to hold all the taxable territory it had, and seldom were the boards able to agree upon the transfer of territory from a large and well-financed district to a small and poorly-financed district. In consequence the jurisdiction of the probate court was constantly invoked with often unsatisfactory results, and it was, in part at least, to obviate the constant contention between adjoining districts for possession of taxable territory that the present system of a county board of education was adopted. The legislature, with a view primarily to furnishing better, and, as near as might be possible, equal, school facilities and advantages to all the pupils of the state, provided that each county board upon its organization should make a survey of its county district and arrange the school districts according to topography and population in order that each school might be most easily accessible to the pupils. The county board was authorized to change the boundary lines of districts without regard to township lines, provision was made for equalizing the property valuation of adjoining rural districts, a minimum area for each rural school district was prescribed, and provision was made for an equitable division of funds and indebtedness among the new districts. As thus adopted the provision was applicable to all the county school districts of the state; and, presumably, the various county boards of education complied with the provision and each re-arranged and established its various school districts according to topography and population with a view to establishing in rural districts as nearly an equal property valuation as could be obtained, and none containing less than 15 square miles.

The provision then having served its purpose, the school districts of the state having been arranged according to topography and population with reference to the accessibility of its schools to the pupils, adjoining rural districts having been so redistricted as to be as nearly equal as possible in property valuation, and all rural districts containing 15 square miles or more, the legislature repealed the section in toto and adopted in its stead present Section 4736, General Code, which contains no provision as to topography and population, no provision as to accessibility of schools to pupils, no provision as to approximate equality of property valuation of adjoining districts, and no minimum area for any district.

It will not be presumed that the legislature by the repeal of an existing statute and the enactment of a different statute upon the same subject did not intend to change the effect of the law as it existed prior to the repeal, but on the contrary it will be presumed that it was the intention and purpose of the legislature by the repeal of the old and the enactment of the new to change the effect and operation of the statute to the extent of the change in the language thereof, and that, having taken out of the statute the requirement that the district should be arranged according to topography and population, the legislature no longer intended to require such arrangement, but relied upon the sound judgment of the county board of education, having in mind the improved facilities of transportation, to make such arrangement of the territory of the respective districts as would best serve the comfort, health and education of the pupils. Having left out of the new enactment the provision that adjoining rural districts should be made as nearly equal as possible in property valuation, it will be presumed that it no longer intended to require boards of education to make adjoining rural districts approximately equal in valuation, but left to the sound discretion of the county board of education the power and obligation of so arranging the various districts with reference to valuation as would best serve the needs of the respective districts; and that having left out of the newly-enacted section the minimum-area provision, it no longer intended to require the county board of education to observe such minimum area. In short, that in so far as it repealed the theretofore specific limitations upon the power and discretion of the county board it to that extent intended to and did enlarge the discretion of such board, and that in changing by various enactments under the same sectional number the language of Section 4736, which as amended in 104 Ohio Laws, 138, read, “To this end the county board shall have power by resolution at any regular or special meeting to change school district lines and transfer territory from one rural or village school district to another,” so as to now read, “The county board of education may create a school district from one or more school districts or parts thereof,” it intended to vest in the county board a different and additional power than that vested by the former section.

Coming now to the consideration of the construction of Section 4736, General Code, with reference to Section 4692, General Code, while it is difficult to distinguish between the creation, as in the instant case, of a district from one entire district and a portion of an adjoining district, giving to such created district a new name and appointing, a new board, under Section 4736, General Code, and the “transfer [of] a part * * * of a school district * * * to an adjoining district,” retaining the name and board of the adjoining district, under Section 4692, General Code, yet we know of no inhibition upon the power of the legislature in that respect; and if it in its wisdom has seen fit to make a distinction by name and board only, and has failed to indicate a difference in any other' respect, that of itself does not vitiate the legislation, nor make the one section conflict with the other. If, however, such conflict did exist we would still be obliged to hold that Section 4736, being the last expression of the legislature upon the subject, would control.

Nor are we able to find that Sections 4735-1 and 4735-2, General Code, enacted in 1914, qualify Section 4736, General Code, enacted in 1919, and are of opinion that even though they were of concurrent enactment Sections 4735-1 and 4735-2 are only effective to dissolve and transfer an entire existing district to another existing district upon the initiative of the electors of the district seeking dissolution and union with another district, or upon the initiative of the board of such district seeking dissolution and union with another district, thereby enabling such district to accomplish such a union with an existing district without the aid of and probably in spite of the county board of education, and in no way limit the power or the discretion vested in the county board to accomplish the same or a similar result by its own action, and that the only limitation upon the power and discretion vested in the county board of education by Section 4736, in the absence of fraud, bad faith, or the taking of such arbitrary, whimsical and unreasonable action by the board as amounts to an abuse of discretion, is the limitation expressed in the section itself.

Having reached this conclusion it follows that a remonstrance signed by less than a majority of the qualified electors residing in the territory affected by the order creating the school district is not effective to defeat the action of the county board in the creation of such district.

The judgment of the court of appeals, affirming the judgment of the common pleas court overruling the demurrer to the petition, is reversed.

Judgment reversed.

Johnson, Wanamaker, Jones and Matthias, JJ., concur.  