
    The State v. Board of Education.
    A special act, taking effect on the day of its passage, required the board of education of a city to release the sureties of a county treasurer from liability for school funds of the board, which came to the hands of the treasurer for disbursement, but the release, was not to be made until the question whether the sureties should be released was determined in favor of the release by a majority of all.the votes oast in such, city at the then next April election. Held, that the act is not in conflict with the constitution ; and the fact that judgment had been rendered against the sureties for the amount of such funds, will make no difference. Board of Education v. McLandsborough, 36 Ohio St. 227, followed.
    
      Mandamus.
    This is a proceeding in mandamus by Archibald Dawson and others, sureties of Jacob B. Koch, treasurer of Wayne county, to compel the board of education of Wooster, in that county, to release from liability to said board Archibald Dawson and others, sureties as aforesaid, as to the amount found to be due to said board and unpaid, which sum forms part of the judgment in favor of the county commissioners of said county and against Dawson and the other sureties; which judgment was affirmed in the preceding case of Dawson v. State, ante, 1.
    These are the facts. At the March term, 1876, of the court of common pleas of Wayne county, a judgment was rendered in favor of the county commissioners of Wayne county, against Jacob B. Koch, treasurer of that county, and Dawson and others, his sureties, for $26,210.23, based on the defalcation of Koch as such officer. It was found and adjudged in the case, that the amount due to Wayne county, the city of Wooster, and the board of education of the city, was $58,680.77, while the amount in the treasury was only $38,669.86, leaving a deficit of $20,010.91, which with interest and penalty amounted to the sum for which judgment was rendered. The county commissioners gave Koch a receipt, at the settlement for the sum so found in the treasury, and it is agreed that if the relators are entitled to a peremptory writ of mandamus requiring the board of education of Wooster to release the sureties as to any amount, such writ should require the release as to the sum of $5,285.66, which is embraced in the judgment, according to the principle determined in Commissioners v. Springfield, 36 Ohio St. 643.
    The relators claim they are entitled to have the release entered by authority of an act “for the relief of the sureties of'. Jacob B. Koch,” &c., 74 Ohio L. 417. That act took effect and was in force from and after March 20, 1877, the day of its passage. It provided that the county commissioners should release and cancel the judgment as to Dawson and the other sureties, but not as to Koch. Before making such release and cancellation, the commissioners were required to submit the question whether such act should be done, to the electors of Wayne county at the April election, 1877, upon ten days’ notice, published in one or more newspapers. Electors throughout the county were requested to vote as to the release of the amount due the county, and the ballots to be cast within the city were required to contain an expression, first, as to the release of the amount due to the county; second, as to a release of the amount due the city; and, third, as to the release of the amount due the board of education of the city. And the act further provided, that “ if a majority of all the electors of the city of Wooster, voting at said April election upon the second and third propositions, or either of them, as herein specified, shall vote ‘ yes,’ then the board of education and city council of the city of Wooster shall each respectively release all the sureties on the bonds of the said Jacob B. Koch . . . from all liability for the payment of any sum or sums of money due to the board of education or the city of Wooster on account of such suretyship.”
    A majority of the votes cast at the aforesaid election was in favor of such release as to the amount due to the board of education; but the board of education refused to make or enter' such release, and this proceeding by mandamus is to compel the board to perform that service.
    Lynch, Lay d? Lynch, for the relators :
    The law was not invalid because the release was not to be entered until it was shown that a majority of those voting at the April election were in favor of such release. 1 Ohio St. 77; 1 Ohio St. 105; 2 Ohio St. 607; 2 Ohio St. 647; 5 Ohio St. 497; 8 Ohio St. 564; 26 Ohio St. 618; 36 N. J. 72; 108 Mass. 27; 42 Md. 71; 13 Grat. 90; 26 Vt. 365; 72 Pa. St. 491; 42 Conn. 364; 10 Foster, 279.
    
      W. J. Gilmore, J. McSweeney, Sr. and J. McSweeney, Jr. for the defendant :
    As to 1st point of per curiam. Ram on Judgment, 17; Rev. Stats. § 1126; 2 Bl. Com. 137; Acherson v. Miller, 2 Ohio St. 203. As to the 2d point, Goodale v. Fennell, 27 Ohio St. 426. As to the 8d point, Rev. Stats. § 1080. As to the 4th point, Kelly v. State, 6 Ohio St. 269; Lehman v. McBride, 15 Ohio St. 573; Ex parte Hagan, 25 Ohio St. 426. As to statutes requiring a preliminary vote, 2 Ohio St. 607; 8 Ohio St. 564; 1 Ohio St. 105; 26 Ohio St. 618. In all these cases the thing to be done was prospective.
   By the Court.

Several objections are urged against the allowance of the peremptory writ:

1. The legislature is prohibited by the constitution, art. 1, § 19, from passing an act to require the release of the amount due to the board of education, which has passed into judgment.

2. The act is retroactive and impairs the obligation of a contract, and hence is prohibited by the constitution, art. 2, § 28.

3. The money directed to be released is a trust fund, under the constitution, art. 6, §§ 1, 2, and the general assembly had no such power, with respect to it.

4. The act has a general subject-matter, but being special, it is in conflict with the constitution, art. 2, § 26.

In answer to this contention it is sufficient to say that the objections are not well taken, and that the case is not distim guishable in principle from Board of Education v. McLandsborough, 36 Ohio St. 227. And see State ex rel. Corry v. Hoffman, 35 Ohio St. 435; Nelson v. Milford, 7 Pick. 18; State v. Hammonton, 38 N. J. L. 430. The only question before us is as to legislative power, and that being resolved in favor of its existence, the responsibility, as well as the power, with respect to such legislation, must rest with the general assembly.

Peremptory writ awarded, rerpairing a release as to $5,285.66.  