
    SCHOOL PROPERTY ASSESSABLE FOR STREET IMPROVEMENTS.
    Common Pleas Court of Crawford County.
    O. F. McKeehen v. The Board of Education of the New Washington Consolidated School District.
    Decided, April 15, 1926.
    
      Assessments — Change in the statutes now Makes School Districts Liable for Street Assessments.
    
    1. Since the amendment of Sections 7586 and 7587, formerly Section 8958, Revised Statutes, school property may be lawfully assessed for street improvements.
    2. The rule laid down in Toledo v. Board of Education, 48 O. S., 83, is no longer applicable by reason of changed statutes and conditions.
    
      C. F. Schaber, for plaintiff.
    
      C. U. Ahl, for defendant.
   Wright, J.

This is an action by the county treasurer to recover assessments from the defendant board of education, which were levied against the school property for the improvement of Center street in -the village of New Washington. The petition recites that the New Washington Consolidated School District was duly established and embraced all territory within the village of New Washington and the township of Cranberry in Crawford county; that the school district is the owner of certain lots against which the assessments were made; and that said lots stand so charged with the assessments upon the tax duplicate.

The defendant has demurred and says the petition does not state a cause of action against it.

The defendant in resisting payment of the assessments relies upon the case of Toledo v. Board of Education, 48 O. S., 83, the syllabus of which reads as follows:

“School property is not liable to assessment for a street improvement; nor can a judgment be rendered against the board of education for the payment of the assessment out of its contingent fund.”

This case was decided February 3, 1891.

The court does not give us the benefit of its reasoning in making the decision, or the basis upon which it worked out its conclusion. It is very brief and reads as follows:

“By the Court : The plaintiff, the city of Toledo, for the use of the contractor, is not entitled to the relief prayer for, nor,' under the prayer for general relief, can a judgment be rendered against the board of education for the payment of the amount of the assessment out of the contingent fund of the board, authorized to be raised by Section 3958, Revised Statutes. The amount must be paid out of the general fund of the city.”

I would gather from the court’s reference to Section 3958, Revised Statutes, that payment of such assessment could not be made out of the contingent fund authorized by Section 3958.

“Each board of education shall annually, at a regular or special meeting, to be held between the third Monday in April and the first Monday in June, determine by estimate, as nearly as practicable, the entire amount of money necessary to be levied as a contingent fund for the continuance of the school or schools of the district, after the state funds are exhausted, to purchase sites for schoolhouses, to erect, purchase, lease, repair and furnish school houses, and build additions thereto, and for other school expenses.”

This section was in force at the time the above decision was made by the court and provided for only one fund, viz., a contingent fund.

Section 3958 was amended April 25, 1904, Vol. 97, Ohio Laws, p. 349, as follows:

“Each board of education shall annually, at a regular or special meeting held between the third Monday in April and the first Monday in June, fix the rate of taxation necessary to be levied for all school purposes, after the state funds are exhausted; said levy shall be divided by the board of education into four funds, namely: first, tuition fund; second, building fund; third, contingent fund; fourth, bonds, interest and sinking fund, and a separate levy shall be made for each fund; provided, that in every city school district, said levies shall be submitted to the board of review of the city,” etc.

This section is now known as Sections 7586 and 7587 of the General Code. It will be noticed that the Legislature, made a division into four funds, with a separate levy for each fund. The prior statute provided for only one fund, viz., contingent fund, limited in its use to the purposes enumerated in the statute. Under the present statute the contingent fund is not limited to certain purposes for which it is to be used.

The original section as passed, referred to balances remaining from state funds, used for school purposes. As this section provided for only the contingent fund, such state balance would, consequently, appear in such contingent fund, commingled with other revenue obtained from local taxation. State funds could not be diverted or used for other than educational purposes, and as Article 6 of the Constitution provides “shall be faithfully applied tp the specific objects,” of the grants. The reason for the decision in the 48 Ohio St., is thus apparent. Since a change has been made in the statute and a separation of funds made, such reason no longer exists.

There appears ample reason for requiring boards of education to pay for street improvements. It is especially apparent in this case. The New Washington Consolidated School District comprises the whole of Cranberry township. The village of New Washington is located within Cranberry township and comprises only a small part of the area of that township. The village desires to improve its street. The school district owns real estate abutting the street. The patrons of the school district use and enjoy the street in order to get to and from their property — the school building. Why should the school district be relieved from paying the assessment and such obligation thrust on the village?

A school district is authorized by law to acquire, possess and dispose of real estate and, being permitted to enjoy all the benefits that go with the possession, should also assume its liabilities and bear its burdens.

To follow the holding of the Supreme Court in the Toledo case, under present conditions, would be a great injustice to municipalities and throw a burden upon them which should be borne by the school districts.

The demurrer is overruled. Exception noted.  