State v. Cook

• Citation: 134 N.E. 655,103 Ohio St. 465
• Decision Date: 22 November 1921
• Docket Number: 16539
• Parties: The State, Ex Rel. Clarke, v. Cook, Auditor.
• Court: Ohio Supreme Court

134 N.E. 655

103 Ohio St. 465

The State, Ex Rel. Clarke, v. Cook, Auditor.

No. 16539

Supreme Court of Ohio

November 22, 1921

Supreme court - Constitutional questions determined, when - Schools - Boards of education - Limitation of powers Salaries of officers.

1. Questions involving the constitutionality of statutes will not be determined by this court, unless such determination is essential to the rendition of a proper judgment in the instant case.

2. Boards of education, and other similar governmental bodies are limited in the exercise of their powers to such as are clearly and distinctly granted. (State, ex rel. Locher Pros Atty., v. Menning, 95 Ohio St. 97, approved and followed.)

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This is an original action in mandamus. Relator is the county school superintendent of Ashtabula county. Defendant is the county auditor.

The petition avers the appointment of relator as such superintendent on the 13th day of March, 1918, by the county board of education, under Section 4744 et seq., General Code for a three-year term, at a salary of $3000 per annum.

In September, 1918, the board of education attempted by resolution to increase the salary to $3450 per year. On August 13,1919, it again attempted, by resolution, to increase relator's salary to $4000 per year. Relator presented a voucher for his salary for December, 1919, at the rate of $4000 per year. The auditor refused to issue the warrant for the amount thereof.

The auditor's answer avers that the plaintiff accepted said three-year appointment at said salary of $3000 a year for the three years, from and after August, 1918, and on this date entered upon the actual discharge of his duties; that after the attempted increase of salary in September, 1918, the certificate required by Section 4744-2 et seq., General Code, was not filed on or before August 1, 1918; that the second attempted increase of August 13, 1919, was certified on August 18,1919, and both of said alleged increases by their terms were to become effective on the respeCtive preceding first days of August, but no appointment of the plaintiff was made other than the three-year appointment made March 13, 1918; and that at the time and before the attempted increase of said salary to $4000 the clerk of the board of education did not certify that the funds for said increase were in the treasury or in the process Of collection and not otherwise appropriated as required by Section 5660.

To this answer the county superintendent demurs, and the case is heard upon such demurrer.

Messrs. Locker, Green & woods, for relator.

Mr. John G. Price, attorney general; Mr. C. A. Sargent, prosecuting attorney, and Mr. Ray Mar-tin, for respondent.

WANAMAKER J. The first question naturally and logically involved in this case is: Has the board of education in the employment of the county superintendent acted within its statutory power?

If it has not, its action in excess of power is clearly a nullity. But if it has acted within its statutory power, the next question in natural and log- ical order is: Is such statutory power conferred upon the board of education within the constitutional power?

That boards of education are purely the creatures of statute is an old and uniformly accepted doctrine. Section 3, Article VI of the Constitution adopted in 1912, provides, in part, that "Provision shall be made by law for the organization, administration and control of the public school system of the state supported by public funds."

As administrative boards created by statute their powers are necessarily limited to such powers as are clearly and expressly granted by the statute. This same doctrine as to inferior boards or commissions was recently laid down in State, ex rel. Locher, Pros. Atty., v. Menning, 95 Ohio St. 97. The following appears in a per curiam opinion concurred in by all the members of the court:

"The legal principle is settled in this state that county commissioners, in their financial transactions, are invested only with limited powers, and that they represent the county only in such transactions as they may be expressly authorized so to do by statute. The authority to act in financial transactions must be clear and distinctly granted, and, if such authority is of doubtful import, the doubt is resolved against its exercise in all cases where a financial obligation is sought to be imposed upon the county.

This doctrine as applied to boards of county commissioners in their financial transactions must in principle be equally obligatory upon boards of...