State ex rel. Carmean v. Board of Ed. of Hardin County

• Decision Date: 23 March 1960
• Docket Number: No. 36141,36141
• Citation: 170 Ohio St. 415,165 N.E.2d 918,11 O.O.2d 162
• Parties: , 11 O.O.2d 162 STATE ex rel. CARMEAN et al., Appellees, v. BOARD OF EDUCATION OF HARDIN COUNTY, Appellant.
• Court: Ohio Supreme Court

Page 415

170 Ohio St. 415

165 N.E.2d 918, 11 O.O.2d 162

STATE ex rel. CARMEAN et al., Appellees, v. BOARD OF EDUCATION OF HARDIN COUNTY, Appellant.

No. 36141.

Supreme Court of Ohio.

March 23, 1960.

Syllabus by the Court

1. Whether the repeal of a statute is accomplished by the enactment of new legislation incident to the repeal or whether the effectiveness of a statute terminates as a result of an expiration date contained in the act itself, the ultimate results is the same, and proceedings properly commenced under such repealed or expired statute are subject to the saving provisions contained in Sections 1.20 and 1.21, Revised Code.

2. The phrase, 'last general election,' as used in Section 3311.261, Revised Code, requiring that a petition for consolidation under such section must have signatures of 'at least 75 per cent of the qualified electors voting at the last general election,' is an event which may be accurately described without pin pointing the exact date thereof, and, under such section, the insertion of an erroneous date in a petition was mere surplusage which did not invalidate the petition.

3. The General Assembly, by inserting the phrase, 'notwithstanding Sections 3311.22, 3311.23, and 3311.26 of the Revised Code,' in Section 3311.261, clearly indicated its intent that proceedings under such section should take precedence over pending proceedings previously instituted under the other enumerated sections.

On November 14, 1958, the Hardin County Board of Education, pursuant to the provisions of Section 3311.26, Revised Code, proposed the creation of a new local school district comprised of four entire existing local school districts. A copy of such proposal was filed with the board of education of each of the local school districts and with the State Board of Education. Within 30 days after the adoption of the proposal three of the four districts approved the proposal. On December 10, 1958, the relators, electors of the fourth district, appellees herein, under the provisions of Section 3311.261, Revised Code, filed the following petition with the Hardin County Board of Education:

'We, the undersigned, qualified electors of Hardin Central Local School District, Hardin County, Ohio, representing more than 75 per cent of the number of votes cast in such district at the last general election November 5, 1957, do hereby petition the Hardin County Board of Education to consolidate the Hardin Central Local School District with Kenton Union School District, Kenton, Hardin County, Ohio, and upon receipt of this petition ask that the Hardin County Board of Education transfer such territory to the Kenton City Union School District for the determination by the Kenton Union School District in accordance with Section 3311.261, Revised Code of the state of Ohio.' (Emphasis added.)

On December 18, 1958, the board rejected the petition, whereupon the present action in mandamus was instituted in the Court of Common Pleas to require the Board of Education of Hardin County to transfer the territory to the Kenton Union City School District. On December 27, 1958, the trial court ordered the board to comply with the request in the petition and make the transfer. Respondent, appellant herein, thereupon prosecuted an appeal to the Court of Appeals, which on June 5, 1959, affirmed the judgment of the Court of Common Pleas.

The cause is before this Court pursuant to a certification of the record, the Court of Appeals finding its judgment to be in conflict with the judgment of the Court of Appeals of the Ninth Appellate District in the case of State, ex rel. Morrison, v. Wayne County Board of Education, decided April 3, 1959.

Knepper, White, Richards, Miller & Roberts and Hugh A. Sherer, Columbus, for appellant.

Kaylor & McKinley, Kenton, for appellees.

MATTHIAS, Judge.

The first assignment of error urged by appellant is that the Court of Appeals erred in remanding the cause to the Court of Common Pleas for execution of a mandate issued on December 27, 1958, commanding the performance of an act under authority of Section 3311.261, Revised Code, despite the expiration of the statute by its own terms on January 1, 1959.

That part of Section 3311.261, Revised Code, which is of immediate concern to us in relation to this assignment read as follows:

'Notwithstanding sections 3311.22, 3311.23 and 3311.26 of the Revised Code, until January 1, 1959, a county board of education may consolidate a school district having only an elementary school or schools with one or more adjoining local, exempted village, or city school district or districts having a high school, upon receipt of a petition requesting such consolidation signed by qualified electors of the district equal in number to at least 55 per cent of the qualified electors voting at the last general election residing within such elementary school district. If such petition is signed by qualified electors of the district equal in number to at least seventy-five per cent of the qualified electors voting at the last general election residing within such elementary school district the county board of education shall make such transfer. Such transfer shall be subject to the approval of the board or boards of education to which the district is being transferred.'

Basically it is appellant's contention that this was a temporary act which by its own terms terminated January 1, 1959, and that thereafter the board could exercise none of the powers or perform any of the duties set forth therein. Thus, irrespective of the fact that at the time of the filing of the petition the board had the power and duty to make the transfer, appellant claims that such power has expired and that there is no existing statute under which the court can order the board to act.

This presents the novel question as to the legal effect of a termination date contained in a statute on proceedings which had been commenced during its effective period.

The General Assembly, recognizing that the repeal or amendment of a statute was almost certain to place persons who were proceeding thereunder in a disadvantageous position, enacted Sections 1.20 and 1.21, Revised Code, which provide as follows:

Section 1.20. 'When a statute is repealed or amended, such repeal or amendment does not affect pending actions, prosecutions, or proceedings, civil or criminal. When the repeal or amendment relates to the remedy, it does not affect pending actions, prosecutions, or proceedings, unless so expressed, nor does any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.'

Section 1.21. 'When a section or an act or part thereof of the statutes of this state is repealed, such repeal does not:

'(A) Affect any rights or liabilities which exist, have accrued, or have been incurred by virtue of such section or act or part thereof:

'(B) Affect an action or proceeding for the enforcement of any rights or liabilities existing or arising thereunder;

'(C) Relieve any person from punishment for an act committed in violation of such section or act or part thereof;

'(D) Affect an indictment or prosecution for a violation of such section or act or part thereof.

'For the purposes mentioned in this section, such section or act or part thereof shall continue in full force and effect notwithstanding such repeal; provided this section does not affect the limitation of actions, prosecutions, or proceedings imposed by any other statutes of this state.'

Appellant, however, urges that a statute which terminates by its own provisions is not contemplated by the provisions of this act, and that this section ceased to exist at the termination date.

As to the institution of new proceedings under this section, appellant is correct. However, as to proceedings which had already commenced, such theory is not tenable. A transfer of territory under the provisions of this act is not a matter which is concluded immediately. Involved in such transfers are adjustments of indebtedness, division of funds and approval by the board of education to which the district is being transferred. All these matters take time, and if we were to follow appellant's theory, that at the time the statute expired all power in the boards ceased, then we would have the situation where transfers properly started could not be consummated. Such, of course, was not the intention of the General Assembly.

Repeal is defined in 2 Bouv. Law Dict., (Rawle's Third Revision, p. 2887) as 'the abrogation or destruction of a law by a legislative act.'

In Cunningham v. Smith, 143 Kan. 267, 53 P.2d 870, 873, the court said that 'when an act expires by its own limitations, the effect is the same as though it had...