State Ex Rel. Waterford Tp. v. Hickman

17 Ohio C.C. Dec. 216, 5 Ohio C.C. (n.s.) 175

• Court: Ohio Circuit Courts
• Decided: September 15, 1904
• Status: Published

Opinion

PER CURIAM.

We are unable to discover any special virtue in the facts set out in the answer, for if it contains a defense it could as well have been made by demurrer to the petition; the gist of the answer as we construe it being, besides its admissions, a plea of a pre-existing de facto special school district under the special act of April 14, 1900, and that the same is now a legally existing and valid special school district under and by virtue of the act of the general assembly of 1904, referred to.

The only question now, as we conceive, is as to whether the special school districts throughout the state created severally by special acts of the general assembly and conceded to be in contravention of the constitution, are recreated and legalized as special school districts by general reference to the same in the general act named of April 25, 1904, or is the part of the act, referring to snch districts, legislation special in character ?

Laning R. L. 6381 (R. S. 3891) provides that:

“Any school district, now existing, other than a city, village or township school district, and any school district organized under the provisions of Chap. 5 of this title, shall constitute a special school district.”

Laning R. L. 6415 (R. S. 3928) provides that:

“Nothing herein contained shall be so construed as to abolish any special school district now existing, but all such districts whether •created under the provisions of a general or special.act, including the territory now constituting such special district shall, unless changed under the provisions of this chapter, continue to be and remain and be recognized and regarded as legal special school districts.”

At the passage of the act there were no special school districts “existing,” — the acts, by which their creation had severally been attempted, had been declared void and the reference to them in the sections above must be deemed to be simply a description of territory out of which the certain several special school districts were to be created by the general act. It is beyond the power of the general assembly to create a single special school district.

Can it create ten or one hundred, if that be the number heretofore attempted to be created? Certainly not, because such attempt would be special legislation.

Is it any the less special by reason of being edged in between two sections of a general statute following Lan. R. L. 6381 (R. S. 3891), which attempts to mark out an arbitrary classification, which we think beyond the legal powers of the general assembly to make? We think not.

The holding of this court will be that the features of the act of April 25, 1904, attempting to recreate and legalize special school districts theretofore existing are in contravention of that part of Sec. 26, Art. 2 of the constitution of Ohio, which provides that all laws of a general nature shall have a uniform operation throughout the state, and are unconstitutional and void.

Demurrer to the answer sustained and judgment of ouster entered. ■