Schwing v. Mcclure

• Decision Date: 10 April 1929
• Docket Number: 21493
• Parties: Schwing v. Mcclure Et Al., Trustees.
• Court: Ohio Supreme Court

166 N.E. 230

120 Ohio St. 335

Schwing v. Mcclure Et Al., Trustees.

No. 21493

Supreme Court of Ohio

April 10, 1929

Schools - Boards of education - Duties and contractual powers statutory - School property cannot be transferred or conveyed without consideration - School building, upon abandonment does not revert with land.

1.

Members of a board of education of a school district are public officers, whose duties are prescribed by law. Their contractual powers are defined by the statutory limitations existing thereon, and they have no power except such as is expressly given, or such as is necessarily implied from the powers that are expressly given.

2.

The members of the board of education of a school district are not authorized to convey or transfer to private parties without consideration, any of the property of the school district, real or personal. Hence, the acceptance by such members of the board of education of a school district of a deed providing that if at any time the premises in ques- tion shall cease to be used for school purposes, the same shall at once vest in the said grantors, their heirs and assigns forever, is not effectual to constitute a public school building erected upon such premises with public funds a part of the realty, so that such building passes with the realty upon reversion to the heirs of the grantor.

This case arises as an error proceeding to a judgment of the Court of Appeals of Hamilton county in favor of the defendants in error, the trustees of the Crosby township school district, Hamilton county, Ohio. The judgment was entered in an action filed in the court of common pleas by William Schwing, in which he alleged that he was the owner of the tract of land described in the petition, and that the deFendants claim an interest adverse to him, and are about to enter upon the premises to remove the property belonging to the plaintiff, to detach fixtures therefrom, and to harass plaintiff with proceedings in forcible entry and detainer. The plaintiff prayed for an injunction forbidding the defendants to enter upon the premises, or to remove the property or fixtures, or to harass plaintiff by proceedings in forcible entry and detainer, and for an injunction against any interference with his right and title to the property, and for other and further equitable relief.

The defendants in their answer admitted the main allegations of the petition, and, in addition, stated that in August, 1925, they found it inconvenient to continue the school upon such premises, and alleged that the plaintiff Schwing refused to permit the defendants to enter upon the premises or remove the schoolhouse, its fixtures, and equipment. The defendants therefore prayed the court for the right to remove the schoolhouse and fixtures for replacement at another location in the school district, and for other proper relief.

The court of common pleas found for the plaintiff, and quieted title of the plaintiff in the real estate described in the petition, the desks and other fixtures in the building located on the premises, and perpetually enjoined the defendants, as trustees of the board of education of Crosby township, from entering the premises and removing the desks or other fixtures from the building, and from removing the building from the premises. The trustees were also enjoined from harassing the plaintiff by proceedings in forcible entry and detainer. Upon appeal proceedings being filed in the Court of Appeals of Hamilton county, and hearing upon the merits, that tribunal made separate findings of fact, and conclusions of law, as follows:

"The court, as its separate findings of fact, finds as follows:

"That on the 12th day of September, 1910, the plaintiff William Schwing and Mabel Schwing, his wife, executed and delivered a deed to the defendant board of education for the property described in the petition. The deed contained the following clause: `It is hereby agreed and understood between the grantors and grantee that if at any time the premises herein described shall cease to be used for school purposes, the same shall at once vest in said grantors, their heirs and and assigns forever.'

"That the board thereupon erected a schoolhouse on the premises, and proceeded to conduct a public school therein until August 18, 1925. The school was known as the Edgewood School.

"On August 18, 1925, a motion was made by Charles Gimpel to discontinue the Edgewood School and transport the pupils to New Haven. That an affirmative vote was recorded for each one of the members of the board; McClure, White, Campbell, and Gimpel, yea. No sessions of school were had after this date; and, in June, 1927, the plaintiff forceably took possession of the premises by entering the schoolhouse through a window and removing some of the furniture and hooking the schoolhouse door.

"This action was commenced October 6, 1927, two years, one month, and eighteen days after the suspension of the Edgewood School by the Board of Education.

"That a necessary party is not a party to the action. "Conclusions of Law.

"As its separate conclusions of law, the court holds:

"That Section 7730-1, General Code of Ohio, applies in this case, and is controlling. That under this statute there could be no legal reverter of title to the school property until a period of four years from the date of the suspension of the school had elapsed. That, by reason thereof, the plaintiff is not entitled to maintain the action to quiet the title against the school board, and that the petition should be dismissed. Further, that the absence of a necessary party to the action would defeat relief to the plaintiff."

The case comes into this court upon allowance of motion to certify the record.

Mr. George Goodhart and Mr. John A. Scanlon, for plaintiff in error.

Mr. Nelson Schwab, prosecuting attorney, and Mr. Thomas J. Elliott, for defendants in error.

ALLEN J.

The statute in force in 1910, when the deed in question was executed, did not create any trustees in a township school district. Hence reference will be made throughout this opinion, not to the trustees, but to the board of education of the Crosby school district.

The Court of Appeals based its conclusion upon Section 7730-1, General Code, which provides that under certain circumstances a school building shall not be sold by the board of education of the district until after four years from the date of suspension of such school, and makes further provision for selling the biding and grounds of such a school, etc. This statute, however, does not affect the particular problem set out in this record. It became effective in July, 1925, long after the date of the deed, September 12, 1910, and hence could not alter the rights of the grantor and the grantees as fixed therein. To hold otherwise would be to impair the obligation of the contract, for it would restrict the force of the agreement and alter its meaning. 6 Ruling Case Law, 323 et seq.; Goodale v. Fennell, 27 Ohio St. 426, 22 Am. 321.

Neither can this case be decided upon the rule of law laid down this day in In re Copps Chapel Methodist Episcopal Church, cause No. 21246, ante, 309, 166 N.E. , 218. In that case this court held that where a deed to church trustees contains no provision for reversion or forfeiture, even though it de- clares that the grantees and their successors are to have and to hold said property so long as said lot is held and used for church purposes, all of the estate of the grantor is conveyed by such deed to the grantees. In the instant case, however, the deed contained a reverter clause, providing that "if at any time the premises herein described shall cease to be used for school purposes, the same shall at once vest in said grantors, their heirs and assigns forever," which completely differentiates the two cases upon the facts. Indeed the school board makes no claim here to the land.

It is to be observed that this case involves not merely a contract between private parties, but a contract made between private parties and public officers. It involves the question whether public officers can by indirection dispose of public property in a manner in which they could not dispose of such public property if acting directly. A member of a school board, while he is not a township, county, or city officer, is a public officer. 35 Cyc., 899; Ogden v. Raymond, 22 Conn. 379, 58 Am.Dec. 429; Morse v. Ashley, 193 Mass. 294, 79 N.E. , 481; Cline v. Martin, 94 Ohio St. 420, 115 N.E. , 37; Wogoman v. Board of Education of Rural School Dist. of Perry Twp., 95 Ohio St. 409, 116 N.E. , 1087; Leatherman v. Board of Education of Allen County, 96 Ohio St. 596, 118 N.E. , 1083.

The strictness with which the powers of public officers are to be exercised is evidenced by a great variety of cases, ending in this state with the decision in State, ex rel. A. Bentley & Sons Co., v. Pierce, Auditor, 96 Ohio St. 44, 117 N. E., 6, which holds that the contractual power of an officer or board is fixed by the statutory limitations upon his power, and that any doubt as to the power of a public officer, as between himself and the public, must be resolved in favor of the public and against the officer. Public officers have no power except such as expressly given. Ireton v. State, ex rel. Hunt, 12 C.C. (N.S.), 202, 21 C.D., 412, affirmed without opinion, 81 Ohio St. 362, 91 N. E., 1131; Peter v. Parkinson, Treas., 83 Ohio St. 36, 93 N.E. , 197, Ann.Cas., 1912A, 751.

It is in line with this theory that estoppel cannot supply a total want of statute power for purely public purposes. Board of Education of Village of Westwood v. Sinton, 41 Ohio St. 504; Lee, Treas., v. Sturges, 46 Ohio St. 153, 19 N.E. , 560, 2 L.R.A. 556. This proposition has been applied...