McCall v. Board of Ed., Eastern Local School Dist.
| Decision Date | 25 March 1959 |
| Docket Number | No. 35816,35816 |
| Citation | 157 N.E.2d 351,8 O.O.2d 11,169 Ohio St. 50 |
| Parties | , 8 O.O.2d 11 McCALL et al., Appellants, v. BOARD OF EDUCATION, EASTERN LOCAL SCHOOL DISTRICT, et al., Appellees. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. The procedure prescribed by statute to bring an election contest within the jurisdiction of a judge must be strictly followed.
2. Under the mandatory provisions of Section 3515.10, Revised Code, the hearing of an election contest must be set not more than 30 days after the filing of the petition, and a copy of the petition must be served on the contestee, and, where it is apparent that the hearing was not set in compliance with the statute, that no request for the setting of such hearing was made, and that no copy of the petition was served or was requested to be served on the contestee, the judge with whom the petition was filed has no alternative but to dismiss the same, on motion of the contestee, for lack of jurisdiction and authority to proceed.
Certain electors of Eastern Local School District, Brown County, Ohio, which district is comprised of a part of such county and parts of two townships in Highland County, filed their petition in the Court of Common Pleas of Brown County in May of 1958, ostensibly under the provisions of Section 3515.08, Revised Code, challenging the validity of an election held in such school district on May 6, 1958, whereby it was declared, after a recount of the votes, that a bond issue in the sum of $612,000 for the acquisition of land, erection of new school buildings and other related improvements had been duly passed. The petition alleges that and sets forth reasons why such election was invalid, among them being the claim that, since a portion of such school district lies within parts of two townships in Highland County, the electors in that territory should have been supplied with ballots at the election to vote on such bond issue but were not.
Later, a motion was filed by the contestee Board of Education of Eastern Local School District to strike the petition from the files on the ground that the court lacked jurisdiction over the person of the board. Such motion was sustained, whereupon the contesters perfected an appeal to this court on questions of law, as authorized by Section 3515.15, Revised Code.
Charles H. Wilson, West Union, and Angus B. Wilson, Georgetown, for appellants.
Richard F. Liggett, Prosecuting Attorney, Ripley and Rober W. Gorman, for appellees.
Counsel for the school board raises the point, and several members of this court agree with them, that because of the geographical territory embraced in the Eastern Local School District the petition to contest the election was improperly and unauthorizedly filed in the Court of Common Pleas of Brown County to be heard by the judge of such court.
That part of Section 3515.08, Revised Code, which is pertinent reads as follows:
'In the case of an office to be filled or an issue to be determined by the voters of the entire state, or for the offices of members of congress, or for judicial offices higher than that of court of common pleas, or for an office to be filled or an issue to be determined by the voters of a district larger than a county, said contest shall be heard and determined by the chief justice of the supreme court or a justice of the supreme court assigned for that purpose by the chief justice * * *.
'In the case of all other offices or issues, except judicial offices, such contests shall be heard and determined by a judge of the court of common pleas of the county in which the contest arose * * *.'
Since a part of Brown County and portions of two townships in Highland County form the Eastern Local School District, is there 'a district larger than a county' here involved within the meaning and intendment of the quoted section, whereby the hearing of the contest must be before the Chief Justice or a 'Justice' of this court?
Be that as it may, the contesters herein chose as their forum the Court of Common Pleas of Brown County, and, in order to have their petition acted upon there, it was incumbent upon them to meet certain statutory mandates. So far as it is applicable, Section 3515.10, Revised Code, recites:
(Emphasis supplied.)
It is apparent from the record that the trial date of the contest was not set within 30 days after the filing of the petition, there is no...
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