State, Ex Rel., v. Ring

Decision Date23 February 1933
Docket Number23826
Citation126 Ohio St. 203,184 N.E. 757
PartiesThe State, Ex Rel. Westcott, v. Ring.
CourtOhio Supreme Court

Schools -- Acts of de facto officer upheld, until title adjudged insufficient, when -- Member of county board of education -- Acts valid, notwithstanding pending proceeding to declare position vacant.

1. The general rule is that the acts of a de facto officer are to be upheld as valid, so far as they involve the interests of the public and of third persons, until his title to the office is adjudged insufficient.

2. The official acts of a member of a county board of education duly elected, qualified and acting, are valid, in the absence of fraud or collusion, as the acts of a de facto officer even though there is pending before a court of proper jurisdiction a proceeding to declare a vacancy in such position, the acts of such member being valid until the determination of such question by the court.

IN QUO WARRANTO.

The facts are stated in the opinion.

Mr John C. Bassett, for relator.

Mr Clarence J. Crossland and Messrs. Pugh & Van Dervoort, for respondent.

DAY, J.

This is an action in quo warranto, begun in this court. The facts out of which the controversy grows, as appear in the pleadings, the testimony taken, and the stipulations of counsel as stated to the court in the oral argument, are as follows:

Carl Vandenbark was elected as a member of the board of education of the county school district of Muskingum county for a term of four years from the third Saturday of January, 1930. In November, 1931, on Monday before Thanksgiving, Vandenbark began working as district manager at Jackson, Jackson county Ohio, for the Farm Bureau Mutual Automobile Insurance Company, working under the direction of the home office of such company in Columbus, Ohio. On the 19th day of January, 1932, Vandenbark removed with his family from such county school district in Muskingum county to the city of Jackson, in Jackson county, where he continued in the work of said employer. He appears to have taken his family and some of his household goods, and to have rented a house and installed himself and family, and he continued to maintain such habitation at Jackson until after the 25th day of June, 1932.

Vandenbark disclaims that he had any intention of surrendering his legal residence and domicile in Muskingum county, and says that his abode in Jackson county was temporary only, and that he intended ultimately to return to Muskingum county; that he had a post office box at Dresden, Muskingum county, and received personal mail at Dresden; that he voted in Muskingum county; and that he rented a room at his father's home and stored some of his goods there. During the period in which he was absent from Muskingum county he continued to return there for occasional week-ends, and on the occasions of the meetings of the school board he attended such meetings and took part in their proceedings.

On March 19, 1932, Vandenbark, and J. A. Littick and J. K. Graham, two associates on the board of education, employed F. D. Ring as county superintendent for the period of three years, beginning August 1, 1932, at a salary of $ 3,000 per year, payable in monthly installments of $ 250 each. This appointment was made about 2 o'clock in the afternoon, the other two members of the board voting against such appointment. At 11 o'clock in the morning of the same day, notice had been served upon Vandenbark, Littick and Graham that an application had been filed in the probate court to fill the vacancy claimed to exist in the board of education by reason of the removal of Vandenbark from the district on January 19 preceding, more than thirty days having elapsed since his removal, within which time the board of education, under the law, had authority to fill such vacancy; and that it having failed to do so the probate court, pursuant to statute, had undertaken that duty.

Section 7610-1, General Code, provides that in the event a board fails to fill a vacancy within thirty days after the same occurs the probate court shall act instead of the county board of education.

An examination of Section 4748, General Code, shows that any of the following grounds are sufficient to create a vacancy in any board of education: First, death of a member; second, nonresidence; third, resignation; fourth, removal from office; fifth, failure of a person elected or appointed to qualify within ten days after the organization of the board, or his appointment; sixth, removal from the district ; seventh, absence from meetings of the board for a period of ninety days, etc.

It is to be noted that nonresidence is one ground, that a separate and distinct ground is removal from the district, thus apparently indicating the...

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