
    SCHOOLS.
    [Holmes (5th) Court of Appeals,
    October Term, 1914.]
    Grant, Shields and Powell, JJ.
    Albert E. Cline v. Oath Martin, et al.
    Incorporation of Village in Effect Makes Included Territory School District.
    A petition, signed by the requisite number of male citizen electors, having been filed in the proper probate court, praying that a special school district be created; and the fact being that the territory- described in the petition embraces an entire incorporated village, together with other contiguous territory outside of such village; and it further appearing that such village never had been organized as a village school district by the election of a board of education therein:
    Held: That by the creation of such village the territory within
    its limits was withdrawn from the operation of the statute providing for the establishment of special school districts, and that the probate court in the proceeding was without jurisdiction of the subject of the petition, and its order purporting to create a special school district composed in part of such village territory was inoperative and void.
    [Syllabus by the court.]
    Appeal.
   GRANT, J.

This cause is before us by appeal from the judgment of the court of common pleas. The facts necessary to an understanding of the issues involved are in substance these:

The village of Nashville became such by legal incorporation in 1881 and has so remained ever since. The territory included within its limits was taken from several townships. Nashville, as such, was never formally organized into a village school district by an election of a board of education, or by other visible exercise of whatever powers it may have possessed for that purpose, but the administration of its schools continued after its incorporation, as they had done before, under the auspices of the townships out of which the village was made up.

In May, 1913, a petition was filed in the probate court of this county, in due form of law, the object and prayer of which was the establishment of a special school district, to be composed of the territory included within the village of Nashville and the territory then attached to it for school purposes, and also other contiguous territory, properly described. The petition was signed by the requisite number of persons and contained apt allegations necessary to bring it within the statute, the aid of which was invoked in the proceeding to grant the relief sought.

The probate court took jurisdiction of the petition, and thereupon such proceedings were had in the cause as resulted in granting the prayer of the petition and the establishment of the special school district asked for, if that court had the legal power to do what it undertook to do in the premises.

After the organization of the purported special school district, and assuming that the probate court had jurisdiction to entertain and prosecute the proceedings resulting in its establishment, an election was attempted to be held in a part of the territory embraced within its limits, the object of which was to cause bonds to be issued, the avails of which were to be used in the alleged special district. The result of this purported election was declared to be in favor of the bond issue in question.

Matters standing thus, the present action was begun in the court of common pleas.

The plaintiff is a taxpayer of the territory sought to be taxed and affected for payment of the bonds voted, and sues in that capacity.

The defendants are those who claim to be the members of the board of education of the purported special school district, and one of them is the ostensible clerk of that body, and they are sued as such.

The prayer of the petition is that the defendant be perpetually enjoined from proceeding further in the selling of the bonds claimed ta have been authorized by the alleged election referred to, upon the ground that the election was wholly irregular and void. It goes further than that, and asks that the so-called school authorities be permanently prohibited from raising any money to taxation, from expending any money as such board, and from doing any act or thing under a claim of right in their assumed official capacity, for the reason, as'is said, that the probate court was without jurisdiction to act upon the petition for the creation of a special school district, and that its judgment and proceedings in that behalf were altogether null and conferred no right.

The jurisdiction which lies at the root of the existence of the special school district if it exists, being thus directly called in question, it is clear that if that contention prevails the entire proceeding in the probate court will have been void from the beginning, and the secondary question of the invalidity of the bond election will fall with it and therefore becomes relatively unimportant here.

We are therefore to address our consideration to this controlling issue in the case. It is somewhat complex and the solution of the matter is not without its difficulties. The case has been ably argued at the bar, and in the briefs of counsel the statutes and authorities deemed to be material have been marshalled with commendable industry and discrimination.

We have reached, with some diffidence, a conclusion in the ease which, while not in all respects free from doubt in our own minds, will have to stand as the judgment of the court.

By the act of 1853 and the acts amending and supplementing it, it was entirely competent for the village of Nashville, when it emerged from its theretofore township existence and became a corporate entity, to become a village school district. All that was necessary to that end was the election of a board of education, which Nashville village did not do.

The act of 1853 declared it. to be such a district. ■ But the Supreme Court, in Cist v. State, 21 Ohio St. 339, by construction held that the act was not self-executing. In that case it was further held that if an incorporated village was formed within a subdistrict, or included. a material portion thereof, no portion of such subdistrict was by reason of such incorporation withdrawn from the school jurisdiction of the township, but that the whole continued to be a subdistriet until the actual election or appointment of a separate school board, and that the. part of the subdistrict not included within the limits of such incorporated village was “territory annexed thereto for school purposes, ’ ’ within the meaning of the statute.

This, seems to fix the status of the Nashville territory and to f>ut it for the time being out of the class of village districts, no board of education having at any time been elected or appointed.' The act thus construed and as construed, keeping Nashville after its incorporation as a village where it was before in regard to its standing as a school district, was repealed in 1904 (97 O. L. 379).

The part of the repealing act which became Sec. 3889 It. S. provided that:

“ * * * Upon the creation and incorporation of a village, the same shall thereby become a village school district; and if said village ivas, previous to its creation and incorporation, included within the boundaries of a special school district but said special school district included more territory than is included within the village limits, said territory shall be, and thereby is, attached to said village school district for school purposes. ’ ’

It is not necessary now to determine whether this act by its own force made Nashville a village school district, or not. But it is to be observed as a significant fact, we think, that although territory which became a village district upon the mere incorporation of the village, ipso facto, although part of a special school district before, was not allowed to preserve that status-thereafter; the territory outside the village limits, although up to that time a part of the special district, was permitted to remain only as attached territory. It passed into, and became merged in the village district and lost its standing as well as its name of a special district. The policy of the law in Ohio for more than a half century consistently has been to make school districts coincide territorially with the political units within which they have been formed, as township, village and city districts, and to have them, as they have passed out of one status, at once emerge into the one next higher. Exceptions to this rule, such as special districts and joint districts, have been allowed only upon controlling considerations of public convenience and welfare. So that, in this case we are dealing, with what must be a departure from the line of public policy, if it is allowed.

In addition to the provisions of Sec 3889 R. S., just quoted, ' the purpose of which seems to have been to take care of the exceptional cases of territory forming a special district becoming by force of the act village districts, the next preceding Sec. 3888, declared that “Each incorporated village now existing or hereafter created, together with the territory attached to it for school purposes and excluding the territory within the corporate limits detached for school purposes, shall constitute, a village school district.” When at last our legislation on this subject passed into and became a part of the present Sec. 4687 Gr. C., thereof provided that:

“Upon the creation of a village, it shall thereby become a village school district, as herein provided; and if the territory of such village, previous to its creation, was included within the boundaries of a special school district, and such special school district included more territory than is included within the village, such territory shall thereby be attached to such village school district for school purposes.”

And by Sec. 4681 GC. 0., it was further provided that:

“Each village, together with the territory attached to it for school purposes, and excluding the territory within its corporate limits detached for school purposes, and having in the district thus formed a total tax valuation of not less than one hundred thousand dollars, shall constitute a village school district. ’ ’

By Sec. 4679, there was a still further provision that “the school districts of the state shall be styled respectively ‘city school districts,’ ‘village school districts,’ township school districts,’ and ‘special school districts.’ ”

We have now traced the rise and progress of the legislation of Ohio, so far as it seems to appertain to the status of school territory co-extensive with village territory, when the latter has passed into the village condition from the lower forms of political existence. We are to consider these latest enactments as expressing the matured legislative thought, and the purpose of the state in respect of the subject-matter. What' we conclude the legal effect of them is, as applied to the case in hand, will be remarked upon presently. We need not observe that the statutes last quoted were in force when the proceedings which are attacked in this action were begun.

Some of them were under review by the Supreme Court in the case of Buckman v. State, 81 Ohio St. 171 [90 N. E. Rep, 158].

Construeing the decisive section, the court fixes its intendment as ■ follows:

‘ ‘ By force of the provisions of Sec. 3888 R. S. as amended April 2, 1906, and in effect April 16, 1906, 98 O. L. 217, each incorporated village then existing, April 16, 1906, or since created, together with the territory attached to it for school purposes and excluding the territory within its corporate limits detached for school purposes, and having in the district thus formed a total tax valuation of not less than one hundred thousand dollars, constitutes, and is a village school district, no vote of the electors of such village being necessary to the creation or establishment of such district.”

In the course of the opinion in that case, it was said:

‘ ‘ It is the contention of counsel for defendant in error that the village of Kenmore upon its incorporation did not thereby by force of the provisions of the above statute become at once or at all, a village school district, but that in order to create or establish such district, of the territory within the municipality, it is necessary that the proposition to organize such village school district be first submitted to the electors of the village and be favorably determined by a majority vote of such electors. We are of opinion that neither the grammatical construction, nor proper interpretation of the language employed in the above statute, leads to the conclusion for which counsel for defendant in error contend. A consideration of the history a previous legislation upon the subject of the reorganization and maintenance of our common schools, discloses that from 1880 to 1906 it was the policy of the state, so declared to be by express statutory enactment, that every incorporated village within the state, together with the territory thereto attached for school purposes, should constitute a village school district, without regard to the tax valuation of the property within the district so formed, and without submitting to a vote of the electors of such village the question of establishing such village district.”

The writer of this opinion argued that case, for the losing side, in the Supreme Court, and is entirely familiar with the scope of the discussion and how far the intention at least was manifest to leave no ambiguity on the record as to any point essential to the issues involved; he personally has no doubt upon the subject. The language we have quoted from the opinion makes the meaning tolerably clear, as we think. We shall not, therefore, comment more particularly upon it.

Over against this mass of statutes We now proceed to place the one, under favor of which, if at all, the proceedings had in the probate court acquired their validity and that court its jurisdiction of the subject-matter. It is the enabling act by which the proceedings assailed here must stand or fail, according as it shall be allowed to prevail over, or yield to, the force of the statutes already quoted, taken as an entirety. It is Sec. 4728 G-. C., and it reads as follows:

“A special school district may be formed of any contiguous territory, not included within the limits of a city or village, which has a total tax valuation of not less than one hundred thousand dollars.”

As the law. at last stood when the case in the probate court was begun, as it was construed in Buckman v. State, supra, we think it would perhaps be safe to infer that the corporate existence of the village of Nashville, ipso facto and without more, constituted that territorial entity a village' school district. But, lest it be thought perilous to go so far as that, in view of the decision in Cist v. State, supra, we need not go to the length of-so holding in terms.'

But from a careful comparative reading of all the statutes referred to, we are entirely satisfied that if the village of Nashville was not at the time stated, technically and visibly a village district, it nevertheless was such district in esse. All that by possibility could have been lacking was the election of a school board. Now a trust is never allowed to fail for want of a trustee, and especially ought this to be true in the solemn trust of administering a school system in accordance with the known public policy of the state. The village district may have been still a district in gremio legis, in the bosom of the law only, but it was none the less a potential district for all that. It was, and we so hold, so far a district that its territory was no longer the subject of being formed into a special district. It was sequestered territory, territory set apart and withdrawn from appropriation to any other use than that to which the fact that Nashville was already a village had by operation of law devoted it. The policy of the state to have its school units coincide with its political units, should not permit, the mere default of villagers to elect a board of education, to defeat that policy.

Inded it would perhaps be safe to say, without this consideration, that the village territory in question is immune from appropriation as a special district by force of the words of negation found in Sec. 4728, under which, if at all, the proceedings in the probate court could be upheld. Whether a vote of the electors was necessary upon the subject, according as the valuation should pass beyond or fall short of the hundred thousand dollar mark, we do not regard as material. That question could only affect the passing of the territory from its old condition as a township district into its new status as a village district. It would not subject the territory in any event to invasion or entry by special district seekers; it was not open or unappropriated territory. It was foreclosed by what we consider the force of the statue, against entry in any form except that into which it would pass as it should emerge into- the village state. We are sure the statute contemplates no such thing as that a village, complete in all its parts, and wanting only the movement of its electors, towards forming a school board, may be seized, judicially, and thrust back, hopelessly, into a township or special district condition.

The probate court, besides being a statutory court, in the-first place, was acting in the proceeding under review specially only. Its jurisdiction, therefore, was a limited jurisdiction, and it is not'to be aided by presumption. Harrington v. Heath, 15 Ohio 483; Fee v. Iron Co. 13 Ohio St. 563; Handy v. Iron Co. 37 Ohio St. 366.

We also reach the same conclusion on another ground. We are not satisfied from the proof before us that the territory in question had a tax valuation of not less than $100,000, when the petition was filed in the probate court. The record in this respect is not satisfactory and we must require full proof on a jurisdictional fact like this. The addition claimed to have been made to the duplicate in order to reach the $100,000 mark, was of doubtful regularity and was designed to be only temporary in its effect.

We conclude and hold that the probate court, in the proceeding here challenged, was without jurisdiction of the subject thereof, and that whatever it did in that respect was inoperative and void.

This being our judgment, the election, also called in question in this action, falls under the same condemnation, and no discussion of its alleged invalidity on other and independent grounds, is deemed necessary.

The plaintiff is entitled to the relief prayed for and a perpetual injunction is awarded.

A decree may be drawn accordingly.

Shields and Powell, JJ., concur.  