McKinney v. Brown

285 N.E.2d 385, 31 Ohio App. 2d 25, 60 Ohio Op. 2d 129, 1972 Ohio App. LEXIS 404

• Court: Ohio Court of Appeals
• Decided: July 19, 1972
• Docket: 300
• Status: Published

Opinions

Gray, J.

This case involves questions arising out of the creation of a new school district out of two existing ones in Brown County. The admitted facts as found in the record are as follows:

“At 9:45 A. M., on January 13, 1971, the Board of Education of Brown County School District, Brown County, Ohio, adopted a resolution, pursuant to Section 3311.26, Ohio Revised Code, proposing the creation of a new local school district to be composed of the Hamersville Local School District and the Mt. Orab Local School District.

“On February 4, 1971, at 9:07 A. M., a petition of referendum was filed against the proposal of the Brown County Board of Education, pursuant to the provisions of Section 3311.26, Ohio Revised Code, with the County Superintendent of Schools. This petition was signed by plaintiffs, and other qualified electors residing in the area included in such proposed new district, equal in number to thirty-five (35%) per cent of the qualified electors voting at the last general election.

“On February 4, 1971, at 9:10 A. M., pursuant to the authority granted in Section 3311.231, Ohio Revised Code, the plaintiffs and other electors equal in number to more than fifty-five (55%) per cent of the qualified electors voting at the last general election residing in the territory known as the Hamersville Local School District, proposed, by petition, the transfer of all of such territory of the Hamersville Local School District to the adjoining Georgetown, Ohio, Exempted Village School District, by the filing of said petition with the County Superintendent of Schools.

“On May 4,1971, the Board of Elections, Brown County, Ohio, conducted an election in the Hamersville Local School District and the Mt. Orab Local School District with the following issue presented on the ballot: ‘ Shall the proposed creation of a new school district out of the territory comprising the Hamersville Local School District and the Mount Orab Local School District be approved?’

“A majority of the votes on said issue were ‘Yes.’ Plaintiffs and each of them voted ‘No’ on said issue. Thereafter the Board of Elections, following a recount, certified the result of the election as having received a majority vote in the affirmative.

“On May 17, 1971, the Board of Education, Brown County, Ohio, School District, met and acted to create a new school district as a result of the election held May 4, 1971, naming the new District ‘Western Brown Local School District’.”

The philosophy of the Supreme Court was expressed in State, ex rel. Hannan, v. DeCourcy, 18 Ohio St. 2d 73, wherein Justice Schneider speaking for the court said, at pages 80-82:

‘ ‘ This brings us directly to the final proposition of the prosecuting attorney which, to our view, is also unsound. He contends that petitions for annexation and incorporation must be fully ‘processed’ by the board of county commissioners in the order in which they were filed. There is neither statutory nor decisional requirement for this procedure. Hoye v. Schaefer, 166 Ohio St. 277, and State, ex rel. Ferris, v. Shaver, 163 Ohio St. 325, are the direct descendants of Trumbull County Board of Ed. v. State, ex rel. Van Wye, 122 Ohio St. 247. Those oases concerned two separate administrative agencies having concurrent jurisdiction of separate proceedings affecting common territory. The rule of their common ancestor, Merrill v. Lake, 16 Ohio 373, is that as between courts having concurrent jurisdiction of the same cause or subject of action, the court which first acquires jurisdiction may proceed to exhaust that jurisdiction to the exclusion of the second court, and the latter shall defer to the former.

“On the state of the record now before us, we find that when the court below heard and decided this case the board of county commissioners has sole jurisdiction of the incorporation petition (which included the four municipally-proposed annexation petitions) as well as jurisdiction of both the freeholder-proposed annexation petitions then pending. Its jurisdiction of the incorporation petition was subject to divestment solely upon its decision to deny one or more municipally-proposed annexations notwithstanding a favorable election on one or more of the same. State, ex rel. Loofbourrow, v. Board of County Commrs., 167 Ohio St. 156. Furthermore, that decision was within its sound discretion. Dabkowski v. Baumann, 175 Ohio St. 89; State, ex rel. Maxson, v. Board of County Commrs., 167 Ohio St. 458, 149 N. E. 2d 918.

“The time of filing of various petitions was not determinative of any priority for their consideration. Their order of precedence was within the discretion of the board of county commissioners subject, of course, to applicable statutory limitations. * * *”

The gist of that decision is that the board of education of Brown County had sole jurisdiction of both proceedings, the proceeding the board itself initiated and the proceedings initiated by the petitioners who desired merger with the Georgetown, Ohio, exempted village school district. The decision was within its sound discretion. The board exercised its discretion and we find no abuse thereof, especially since the voters of Hamersville local school district and the Mt. Orab local school district voted affirmatively to create a new district called the Western Brown local school district. On May 17,1971, the board of education of Brown County met and acted to create the latter school district.

On May 25, 1971, a complaint was filed by plaintiffs alleging the following:

“Plaintiffs are residents, citizens, real property owners, taxpayers and qualified electors of Brown County, Ohio, and of the area known as the Hamersville Local School District, Brown County, Ohio, and bring this action for themselves and on behalf of all other persons similarly situated.”

On May 25, 1971, there was no longer in existence an area known as the Hamersville local school district, Brown County, Ohio; hence, plaintiffs have no standing or capacity to bring this action as the basis for their alleged right no longer existed. The General Assembly has spoken on this point. R. C. 3311.231 provides, in pertinent part, as follows:

“If an entire district is transferred the board of education of such district is thereby abolished or if a member of the board of education lives in that part of a school district transferred the member becomes a nonresident of the school district from which the territory was transferred and he ceases to be a member of the board of education of such district.”

On May 4, 1971, the people of the Hamersville local school district and the Mt. Orab local school district spoke. This alone would cause us to dismiss the complaint filed in this case but, when the General Assembly decreed that the school boards of both districts were abolished, weight has been added which tips the scales heavily against the position taken by plaintiffs.

It is the duty of this court to ascertain and give effect to the object of the people in voting to create the new school district — Western Brown local school district. The court will presume that the people were dissatisfied with the set up of their, former school district; that they wanted a change; that they wanted the change they voted for; and that they wanted it as soon as possible.

Then to cap the climax, we do not think plaintiffs had the capacity, or standing to bring the action on May 25, 1971. The complaint is dismissed. Since we have dismissed the complaint for the reasons herein stated, it is unnecessary that we pass on the assignments of errors.

Complaint dismissed.

Abele, P. J., and Stephenson, J., concur.