LIBRARY OF THK University of California. OIF-T OK Received , igo Accession No. 82^48 . Class No. "^"^^^^^^^i^nveynJU al ^^^^^'^n-tik^u^^c^r XX/iy^^/UA^ C, /cW-z^t^^-H^. OHIO SCHOOL LAWS IN FORCE APRIL 15TH, T8S9. A SKT OF Blank Forms, aPid Directiorxs for their Use, TO SERVE AS A GUIDE FOR SCHOOL OFFICERS. ^\ B R A /? J,- COLUMBUS : THE WESTBOTE COMPANY, STaTE PKINTERS. ISf 9. PREFACE. Section 360 of the Revised Statutes of Ohio thus provides : " He [the State Commissioner of Common Schools] shall cause as many copies of the laws as are necessary, relating to schools and teachers' institutes, with an appendix of appropriate forms and instructions for carrying into execution all such laws, to be printed in a separate volume, and distributed to each county with the laws, journals, and other docu- ments, for the use of the school officers therein, as often as any change in the laws is made of sufficient impor'tance, in the opinion of the com- missioner, to require a republication and distribution thereof." There have been i^. this office for distribution no copies of the edition of the school laws of 1883— the last edition published — for more than two years. The demand for copies throughoiat the whole State is now most importunate. There is, therefore, an urgent necessity for a new issue. The notes and the references to the decisions of courts in the edition of 1883, are very valuable and complete. Most of these notes and nearly all the citations of decisions have been retained in this edition. Neither to these notes nor to the citations has it seemed necessary to make large additions. To the comparatively few that have been made an asterisk is prefixed. In preparing this reissue of the school laws, I have been under many obligations to Attorney-General Watson for advice on legal points. Valuable help has also been obtained from a little work en- titled '* Common School Law,'' written and published by C, W. Bardeen, Syracuse, N. Y. In this volume will be found, as an appendix, the Forms and In- structions prepared by former commissioners for the guidance of school oflfixjers.. John Hancock, Stc^s Commissioner of Common Schools^ 82748 GENERAL RULES OF INTERPRETATION. "In considering questions arising under the school legislation of the State, such construction should be placed upon its various enact- ments , and the several provisions thereof, as will give harmony to our educational system, and secure, as far as practicable, its equal benefits, and the reasonable facilities for their enjoyment, to every locality." f21 O. S., 339.] "Statutes should be so construed as to give effect to the intention of the legislature, and, if possible, render every section and clause effectually operative." [1 O. 381.J " In interpreting a statute or other written instrument the inten- tion of the framers must be arrived at, if possible, and, when necessary, the strict letter of the act, instrument, or law must yield to the mani- fest intent " [39 Mo., 80.] REVISED STATUTES OF OHIO. TITLE HI. SCHOOLS. CHAPTER 1. CHAPTER 2. CHAPTER 3. CHAPTER 4. CHAPTER 5. CHAPTER 6. CHAPTER 7. CHAPTER 8. CHAPTER 9. CHAPTER 10. CHAPTER 11. CHAPTER 12. CHAPTER 13. CHAPTER 14. Classification and change of districts. City districts of the first class. City districts op the second class and i\'!ILLAGE districts. Township and special districts. Joint sub-districts. School funds. Provisions applying to all boards. School-houses and libraries. < Schools, and attendance enforced. Enumeration, treasurer, and clerk. Reports. Examiners. Teachers' institutes. Cincinnati and tolodo universities. CHAPTER 1. CLASSIFICATION AND CHANGE OF DISTRICTS. Classes of school dis- tricts. Section 3885. Classes of school districts. 3886. City districts of first class. City districts of second class. "Village districts. Change of classification in certain cases. Township districts. Si>eeial districts. 3887. 3890. 3891. Section 2892. Boundaries of -sub-districts not changed. Transfer of territory from one district to another. 3894. Township districts may be- come village districts. How vote shall be taken. How board organized. 3893. 3895. 3896. City districts ; Sec. 3885. The state is hereby divided into school dis- tricts, to be styled, respectively, city district of the first grade of the first class, city districts of the second grade of the first class, city districts of the first class, city districts of the second class, village districts, special districts, and town- ship districts. [70 v. 195, § 1; 84 v. 184.] Sec. 3886. Each city having a population of two hun- SCHOOL OFFICERS GUIDE. First class. Classification and Change of Districts. Ch. 1. dred and fifty thousand or more by the last preceding^census p.^.^^ grade, of the United States, including the territory annexed to it for ''""^^ ''^a.^^-, school purposes, and excluding the territory detached from it for school purposes, shall constitute a city district of the first grade of the first class; each city having a population of one hundred and fifty thousand or more, and less than two bun- second gra.ie, first class. dred and fifty thousand, by the last preceding census of the United States, including the territory anne "ed to it for school purposes, shall constitute a city district of the second grade of the first class; and each city having a population of ten thousand and less than one hundred and fifty thousand by the last preceding census of the United States, including the territory annexed to it for school purposes, and excluding territory detached from it for school purposes, shall constitute a city district of the first class. [70 v. 195, § 2; 8L v. 71; 84 V. 184.] Sec. 3886. Each city having a population of ten thou- qty school sand or more, including the territory attached to it for school tirst class. purposes, and excluding the territory within its corporate limits detached for school purposes, shall constitute a school districl, to be styled a city district of the first class ; and eacli district that has heretofore been constituted a city district of the fiist class shall remain such. [70 v. 195, § 2; 81 v. 71; 85 V. 91.J ■-•■Sec. 3886 (a). It will be observed there are two sections with this number. The original section 3886 was amended and repealed in 1884, and the section as amended in 1884 was amended and repealed in 1887. The author of the amendment of 1888 seems to have overlooked the amend- ment of 1887, and to gave gone back to the amendment of 1884, which had been repealed by the amendment of 1887. Under this condition of facts there Avas nothing left to do but to retain the two sections with the same number. (6) In the interpretation of several of the sections of this title, it will be necessary to observe that "eily districts of the first class," and " cities of the first class" are not related terms. A city of the first class has over 31,500 inhabitants. Sec. 3887. Observe also that "city districts of the second class," and " cities of the second class " are not co-incident. Sec. 3888. Territory attached for school purposes. — The phrase " terri- tory attached for school purposes," as used in sections 3886, 3887, and 3888, evidently applies to territory not included in the corporate limits of a city or village, but which, at the time of its organization, formed a part of the school district or sub-district to which the territory of such city or village SCHOOL OFFICERS GUIDE. Ch. 1. Classification and Change of Districts. City districts oi' set'oml class. \illage dis- tricts. (banges of '""assilioation in certain cases. Township rlistrfcts. Sec. 3887. Eftch city of the second clas?, having a population of le?.s than ten thousand by the cen.-uH of 1870, including the territory attached to it lor t^chool purposes, and excluding the territory within its corporate limits detached for school purposes, shall constitute a school district, to be styled a city district of the second class. [70 v, 195, § 3.] Sec. 3888, Each village, including the territory at- tached to it for school purposes, and excluding the territory within its corporate limits detached for school purposes, shall constitute a schcol district, to be styled a village district. [74 V. 140, § 4.] Sec. 3889. Municipal corporations hereafter created, or advanced to higher grade, except villages created by advance- ment or otherwise, shall, Irom and after their creation or advancement, be school districts corresponding to their grade as herein provided. [70 v. 195, § 5.] Sec. 3890. Each organized township, exclusive of any of its territory included in a city, village, or special district. belonged ; or to territory transferred from one district to another, for school purposes, under section 3893 of this chapter. "Territory detached for school purposes" is territory taken into the corporate limits of a city or village, hut not transferred to the village dis- trict, by mutual consent of the boards of education concerned; or it is territory formally transferred by the city or village district adjoining. Sec. 3889 (a). Villages created by advancement or otherwise, become village districts only when action is taken for that purpose under section 3912, et seq. (b) The corporate character of a school district cannot be questioned in a collateral proceeding. This is to be done in direct proceeding by quo warranto. If the corporation is acting by virtue of legislative enactment, this is sufficient as against everybody, except the State itself, and private parties cannot question the regularity. — Coolcy's Constitutional Limita- tions, 254. Sec. 3890. A change of township boundaries accordingly works a change in the township district boundaries. * Sec. 3891. The decision of the supreme court in the case of the State v. Powers, 38 O. S., 54, which declared it beyond the constitutional j)Owers of the general assembly to create a special school district, has been overruled by the same court in the case of the State ex rel. Attorney-Cjen- eral v. Shearer (February, 1889). The latter decision revives all the spe- cial districts created by the legislature, except the New London special district. Sec. 3892. Sub-districts are the sub-divisions of a township district. These sub-divisions are made by township boards of education, and by commissioners appointed by the probate court. SCHOOL OFFICERS GUIDE. Classification and Change of Districts. Ch. 1. shall constitute a school district, to hd styled a township dis- trict. [70 V. 195, § 7.J Sec. 3891. Any school district now existing, other than those mentioned in sections thirty-eight hundred and eighty-six^ thirty -eight hundred and eighty-seven, ihirty-eight hundred and eighty-eight, and thirty-eight hundred and ninety, which has been established by a vote of the people in accordance with any act of the general assembly, or which has been established by a general or local act of the general assembly, shall con- stitute a school district, to be styled a special district; and such di.-tricts may be established as provided in chapter five of this title. [70 v. 195, § 6.] Sec. 3892. The several sub-districts and joint sub-dis districts now existing within any township district shall continue, according to their respective boundaries, to be sub- districts or joint sub-districts thereof, subject to the provisions of this title. [70 v. 195, § 8.] Special dis- tricts. Boundaries of sub-districts not changed. CHANGE OF DISTRICT. fW Sec. 3893. A part or the whole of any district may be Transfer of transferreci to an adjoining district, by the mutual consent of on"* district™ th« boards of education having control of such districts; but ^^ ^•"o*^*''^- no such transfer shall take effect until a statement or map, showing the boundaries of the territory transferred, is entered upon the records of such boards, nor, except when the trans- fer is for the purpose of forming a joint sub-district, until a copy of such statement or map, certified by the clerks of the board making the transfer, is filed with the auditor of the county in which the transferred territory is situate; and any person living in the territory so transferred may appeal to Concerning jpint sub-districts, see chapter 5. Sec. 3893 (a). There is no such thing as transferring territory for Transfer of temporary purposes, witli an understanding that it shall be set back at a territory, definite future time. Such territory can be transferred again as other terri- tory may be ; thus changing again the boundaries of the district and the voting relations of residents. (6). Unless boards transfer territory, an appeal does not lie to the commissioners, under this section. But if a case arises such as is described under section 3969, the commissioners may be applied to for relief. (c). It is the evident intention of the statute that the territory to be transferred to an adjoining district must be contiguous to the district. Uguous! *'°" lO SCHOOL OFFICERS GUIDE. Ch. 1. Classification and Change of Districts. Township districts may become vil- lage districts. How vote shall be taken. How board organized. the county commissioners, as provided in section thirty-nine hundred and sixty seven, and the commissioners, at their first regular meeting thereafter, shall approve or vacate such transfer. [70 v. 195, § 40.] Sec. 3894. The board of education of any township dis- trict may decide to submit, and, on petition of one-third of the electors of the district, shall submit, at the first regular election for township officers after such decision is made or petition received, the question whether such township dis- trict shall be governed by the provisions of this title relating to village districts; and the board shall give notice of the vote to be taken, by posting up written or printed notices, in ten or more public places in the township, at least twenty days prior to such election. [70 v. 195, § 155.] Sec. 38'.i5. The election ehall be conducted by the town- ship trustees, who shall provide a separate ballot-box and separate poll-books, and make a return of the vote to the township clerk, and also to the commissioner of common schools, within five days after the election; and the per.-ons voting at such elections in favor of such change shall have written or printed on their ballots— "School District," and those opposed to such change — "No School District." [70 v. 195, § 156.] Sec. 3896. At the annual organization of the township board after any such election, if it be found that a majority of the votes cast were in favor of the change, the board shall select, by vote or lot, six persons to serve as a township board of education, two of whom shall serve for three years, two for two years, and two for one year ; and such board shall there- after be governed by the provisions of this title relating to boards of village districts. [70 v. 195, § 167.] SCHOOL officers' GUIDE. I I City Districts of the First Class. Ch. 2. CHAPTER 2. CITY DISTRICTS OF THE FIRST CLASS. Section 3897. Board of education— how consti- tuted, and how membership in- creased. 3898. When two members for each ward, how elected. 3899. When one member for each ward, how elected. Section 3900. Where certain electors to vote, plats of attached territory. 3301. Conduct of elections. 3902. How electors on attached terri- tory to cast ballots. 3903. Meetings and certnin powers of the board. Sec. 3897. In city districts of the first grade of the first Su incuy class, the board of education shall consist of one member from grlS'rsf^ each ward, and each member of the board shall be an elector tionof nfem- of the ward, or of the township, or part of the township, term's of office. which, for school p^irposes, has been or may be attached to such ward, for which he is elected or appointed; provided, that [inj city districts of the first grade of the first class, be- ginning with the annual election for city officers held in April, 1887, one member shall be elected from each ward having an even numerical designation, or from territory attached for school purposes to such ward having an even numerical designation, as above provided, who shall serve for the term of one year, and that at the annual election for city officers held in April, 188", one member shall be elected from each ward having an odd numerical designation, or from territory attached for school purposes to such ward having an odd numerical designation as above provided, who shall serve for a term of two years, and annually thereafter as the term of members elected by said ward or ward with territory attached for school purposes, as above provided, shall expire, successors shall be elected to hold for the term of two years; and if any vacancy by . ,., removal. person elected a member ot said board shall, during his term as said member, move out of the ward for which he was elected, then his term shall cease and determine, and said board shall elect a person to fill the vacancy; the members elected under this act shall hold office until their successors are elected and qualified ; provided, that the board of educa- ancf remwai* tion established by this act shall be in all respects the succes- sors of the respective board whose place they take ; but the Sec. 3897. Change of Residence.— When a member of a board of edu- cation or a local director ceases to be an elector in the district, ward, or sub- district which he was elected to represent, he vacates his office. 12 SCHOOL OFFICERS GUIDE. Oh. 2. City Districts of the First Class. New wards. Board of edu- (iation in city districts first class; elec- tion audi term of mem- l)crs. members of such board of education shall not, as individuals or as local committees, exercise supervisory authority over the schools in the several wards or districts, or have the selection or nomination of teachers- The superintendent of the public schools of said city district of the first grade o: the first class shall appoint all the teachers of said schools by and with the consent of the board of education, and the superintendent or the board of education ma)' remove for cause ; and provided further, that when a new or additional ward shall be created in such city district, the board of education shall proceed to elect a person who is an elector of such additional ward, or of territory thereto attached for school purposes, as a member of the board from such ward, to serve until the next annual election for city ofScers, at which annual election the quali- fied electors of each such new wards, and the territory an- nexed thereto for school purposes, shall elect one judicious and competent person, having the qualification of an elector of such ward or territory thereto attached for school purposes, to serve as a member of the board of education ; provided, that if such new wards have an even numerical designation, the member so elected, as provided above, shall serve until the expiration of the term of other members who are or have been elected from wards having an even numerical designa- tion, and if such new ward having an odd numerical designa- tion, the member so elected, as provided above, shall serve until the expiration of the term of other members of said board, who are or have been elected from wards having an odd numerical designation; and annually thereafter, as the term of members so elected, as above provided, shall expire, suc- cessors shall be elected, who shall serve for the terra of two years, and until the election and qualification of their suc- cessors. [77 V. 80; 82 V. 7; 84 v. 184.] Sec. 3898. In each city district of the first class, and not of the first or second grade, the board of education shall consist of two members from each ward, except in city dis- tricts organized under a law providing for one member only for each ward, in which districts the board may, at any time, by a vote of the majority of all its members, provide that thereafter each ward shall be represented by two members, and thereupon proceed to choose one additional member for SCHOOL OFFICERS GUIDE. 1 3 City Districts of the First Class. Ch. 2. each ward, to serve until the next annual election for city- officers, and until the election and qualification of his suc- cessor; and each member of the board shall be an elector of the ward for which he is elected or appointed ; and at every n ■ n- ■ -L 1-1 i-j. i Board of edn- annual election for City oincers in a city which constitutes cation in city . . - districts, (irpt districts of the first class, wherein the board consists of two class. members for each ward, there shall be elected in each ward, .by the qualified electors thereof, one judicious and competent person to serve as a member of the board of education of the districts for two years, from the third Monday of April suc- ceeding his election, and until the election and qualification of his successor ; provided, that kt the annual election for city officers, held first after a city has been constituted a city district of the first class, with a board to consist of two mem- bers from each ward, there shall be elected in each ward of such city, by the qualified electors of such ward and of said district entitled to vote in such wards, two persons of the re- quired qualifications to serve as members of the board of edu- cation of such districts, one for one year and the other for two years from the third Monday of April succeeding their election, and until the election and qualification of their suc- cessors; and provided, that any elector residing in such dis- trict, but not in any ward of such city, shall, if the territory containing his residence has not been attached to any ward for school purposes, as provided in section thirty-nine hun- dred, be entitled to vote for members of the school board in the ward nearest his residence; and in such case a separate ballot-box and poll-book shall be provided and used, as re- quired in section thirty-nine hundred and two, in each ward where any such elector may be entitled to vote; when the board of education in such city district of the first class con- sists of as many members as there are wards, there shall be elected at the annual election for city officers in the year eighteen hundred and eighty, and every two years thereafter, in each ward designated by an even number, and in the year eighteen hundred and eighty-one, and every two years there- after, in each ward designated by an odd number, by the qualified electors thereof, one member of the board, who shall hold his office for two years, and until the election and the qualification of his successor. [70 v. 195, § 11 ; 84 v. 184.] 14 SCHOOL OFFICERS GUIDE. Ch. 2. City Districts of the First Class. bSofedu- S^^- ^^^^- ^" ^^^y districts of the first class, second cation. grade, the board of education shall consist of twenty mem- bers, to be elected by districts, to serve for the term of two years, except as hereinafter provided ; and for the purpose of electing such board of education such cities shall be and are hereby divided into twenty districts, as fellows: City divided The second and fourth wards shall constitute the first into districts. district. The fifth and eighth wards shall constitute the second district. The sixth and seventh wards shall constitute the third district. The ninth and eighteenth wards shall constitute the fourth district. The nineteenth and twenty-first wards shall constitute the fifth district. The twentieth and twenty-second wards shall constitute the sixth district. The twenty-third and twenty- sixth wards shall constitute the ssvenlh district. The twenty-fifth and twenty-seventh wards shall con- stitute the eighth district. The seventeenth and twenty-fourth wards shall consti- tute the ninth district. The thirteenth and fifteenth wards shall constitute the tenth district. The twelfth and fourteenth wards shall constitute the eleventh district. The tenth and eleventh wards shall constitute the twelfth district. The first and sixteenth wards shall constitute the thir- teenth district. The third and twenty-eighth wards shall constitute the fourteenth district. The twenty-ninth and thirtieth wards shall constitute the fifteenth district. The thirty-first and thirty-third wards shall constitute the sixteenth district. The thirty-fourth and thirty-fifth wards shall constitute the seventeenth district. SCHOOL OFFICERS GUIDE. 15 City Districts of the First Class. Ch. 2. The thirty-second and thirty-sixth wards shall constitute the eighteenth district. The thirty-ninth and fortieth wards shall constitute the nineteenth district. The thirty-seventh and thirty-eighth wards shall consti- tute the twentieth district. And in said cities of the second grade, first class, there ° ' ' Election and shall be elected at the first annual municipal election to be term of mem - ^ bers. held after the passage of this act, in each district designated by an even number, by the qualified electors thereof, for the term of three years, and thereafter biennially, and in each district designated by an odd number,* by the qualified elec- tors thereof, for the term of two years, and thereafter bien- nially, one member of the board, who shall hold his office until the election and qualification of his successor. [70 v. 195, § 11; 71 v. 55, §§ 1, 2, 3; 83 v. 3 '."| Sec. 3900. An elector residing in the city district, but where cer- not in any ward of the city, shall be entitled to vote in the to"^o^efpiats ward to which he is attached by the board of education for territorjf school purposes; but an elector residing in the city, and not in the city district, shall not be entitled to vote at any elec- tion provided for in this chapter ; the board shall ascertain whether the city limits are co-extensive with the limits of the school district; and in case the school district includes territory without the corporate limits, the board shall make or cause to be made a plat of the territory so attached for school purposes, designating thereon by metes and bounds the ward or wards to which such attached territory is to be thereafter assigned; which plat shall be recorded as a part of the proceedings of the board. [70 v. 195, §§ lO, 12.] Sec. 3901. The election provided for in section thirty- conduct of eight hundred and ninety-nine shall be conducted by the judges Sec. 3900. Of course an elector residing in a city of the first class, and not in the city district, votes for school officers with the voters outside of the city, and in the same district with him. See sections 3908 and 3916. " Shall be elected by the qualified electors of such districts," however the districts may be situated as to the boundaries of cities, etc. Sec. 3901. The method of contesting an election is by quo warranto. E. S., Section 6760. (a). "Shall m!ike returns," that is, a certificate showing the vote for Returns. each candidate for the required office in the proper ward, for township, i6 SCHOOL OFUCERS GUIDE. Ch. 2. City Districts of the First Class. How electors on attached t^rritorj- to («ist ballots. I'oll-books, Contest by qno wiirritnto. and clerks of the city elections, and they shall make returns of such election to the board of education within five days from the time of holding the sara-. [70 v. 195, § 13.] Sec. 3902. The judges and clerks of city elections, in the wards to which any territory beyond the city limits has been attached by the board of education for school purposes, shall have two separate ballot-boxes and two sets of poll- books; the electors residing on such attached territory may vote at all regular and special elections in such wards for members of the board of education; the judges of- election in such wards shall receive the ballots of the electors resid- ing on such attached territory, and depo-it them in the ballot-box proviiif'd t'nr tliat p'^rnopo; the clerks of election village, or special district], at the proper date, signed by the judges and clerks of election before they disperse, sealed, marked "Election Returns," and directed and sent in this case to the board of education. See notes to section 3917. (6). Poll-books dulv certified and returned are prima fade evidence of the truth of their contents, but this presumption will be rebutted by proof that they are fraudulent and fictitious to such an extent as to render them wholly unreliable. Phelps v. Schroder, 2t> O. S., 549. (c). Where a poll-book is thus impeached and rejected, the legal voters are not disfranchised, but the burden of otherwise proving -legal votes is thrown upon the party claiming them. lb. (r/). The relator having received a certificate of election as school director, was sworn in, and some months afterward, the board having become satisfied that he had not received a majority of the votes and that defendant had, swore in the latter and excluded the relator from their meetings, and the relator thereupon filed an information in the nature of a quo uarranto, against defendant. Held, as the law for the election of school directors makes no provision for contest of election, the method adopted in this case is available. Therefore the fact that the relator had recei%'ed a certificate is not conclusive, for the court must go behind the certificate to ascertain who had the majority of votes. State ex rel., (Langdon) v. Goodale. 4 Bull., 1065, 8 Ilec, 432. (e). That this remedy is exclusive, and that a mandamus to recanvass will not lie, see 26 O. S., 216. (/). In case of fraud on the part of the judges in receiving or in counting votes, McCray on Elections, ? 184, after referring to many cases and authorities, remarks: " The safe rule probably is that where an elec- tion board are found to have willfully and deliberately committed a fraud, even though it effect a number of votes too small to change the result, it is sufficient to destroy all confidence in their official acts, and to put the party claiming anything under the election conducted by them, to the proof of his votes, by evidence, other than the returns." See Judkins v. Hill, 50 N. H., 140; Knox Co. v, Davis, 63 111., 405; Russell v. State, 11 Kan., 308." SCHOOL OFFICERS GUIDE. I J City Districts of the Second Class, and Village Districts. Ch. .S. shall enter upon the separate poll-books provided for that purpose the names of such electors so voting; and due returns of such elections for members of the board shall be made as provided by section thirty-nine hundred and one. [70 v. 195, § 12.] Sec. 3903. The board of education, except in cities of Timeof regu- ' *^ lar meetings of the first class, second grade, shall hold regular meetings ^^.^^^^^ ofiedu- once every two weeks. In cities of the first class, second grade, said board shall hold its meetings on the first and third Monday of each month following the third Monday of fngs^etc.™*^^*^" April, and in all city districts of the first class, said board may hold such special meetings as it may deem necessary ; it may fill all vacancies that occur in the board until the next annual election, and may make such rules and regula- tions for its own government as it may deem necessary ; but such rules and regulations must be consistent with the con- stitution and laws of the State. [79 v. 59.] CPIAPTER 3. CITY DISTRICTS OF THE SECOND CLASS, AND VILLAGE DISTRICTS. Section 3909. Notice of elections. 3910. Returns to be made to board. 3911. How membership increased. 3912. How village may become village district. 3913. How village district organized. 3914. Organization of board. Section 3904. Membership of board of educa- tion. 3905. Election of members in city dis- tricts. 3906. Conduct of the election. 3907. Election when as many members as wards. 3908. Election in village districts. Section 3904. In city districts of the second class, and Membership of in village districts, the board of education shall consist of cation. six members, except in districts organized under a law pro- viding for only three members, who shall have the qualifi- cations of an elector therein, and in such districts the mem- bership may be increased to six, in the manner hereinafter provided ; but the board of a city district of the second class, may provide, by a vote of the majority of its members, that tlie board shall consist of as many members as the city has wards. [70 v. 195, §§ 16, 17] Sec. 3903 (a). For manner of filling vacancies in the board, see sec- tion 3981, with the notes thereto. (6). For classification of cities, see sections 1547-8, of Revised Stat- utes. See also remarks under sections 3886 and 3887. 2 i8 OHIO SCHOOL LAWS. Ch. 3. Election of members in citv districts. Conduct of election of members of board of edu- cation in city districts, second class. City Districts of tbe Second Class, and Village Districts. Sec. 3905, In city districts of the second class, except such as are mentioned in section thirty-nine hundred and seven, members of the board of education shall be elected annually, to serve lor the term of three years from the third Monday of April succeeding their election, and until the election and qualification of their successors; if the board consists of six members, two judicious and competent persons shall be elected each year ; and if the board consists of three mem- bers, one such person shall be elected each year. [75 v. 53, § 18-] Sec. 3906. If the boundaries of the district and [the] city are identical, or, if territory has been detached from the city and attached to another district, the election shall be conducted exclusively by the judges and clerks of the city election, but electors residing within the bounds of such de- tached territory shall not vote thereat ; but if territory out- side the city limits is attached to the district, an election shall also be held for the same purpose in the township from which it was detached, and conducted by the judges and clerks of the township election, but only electors residing within the bounds of such territory shall vote thereat; the election shall be held at the same time and places as the elec- tion for city or township officers shall be held ; the names of candidates for such member shall be upon separate tickets, and all such tickets voted shall be deposited in separate ballot-boxes, which shall be provided by the board of educa- tion ; separate poll-books of the election shall be kept, and Territory dt- tached^from citv.l Territory at- tached to city dibtrict. Sec. 3906 (a). According to the first clause of this'section, a district adjoining a city district of the second class, and having attached to it some territory of the city, holds its election for school officers wholly in its own territory. All the voters resident in such district whether outside of the city or within it, vote together for members of the board. (6). According to the second clause, voters living outside the limits of a city of the second class, and yet on territory attached to such city for school purposes, do not vote within their district, that is, at the city or ward poll, but at the poll of the township in which their school-house is situated — depositing their ballots for school officers for the city district " in a separate ballot-box which shall be provided by the board of education " of the city district, since the township board is not interested in the subject. For the same reason the separate poll-book is probably to be provided by the same board. " The returns " — see note to 3901 — are to be made to the city clerk, who will combine this count with the count of those cast withia the city and returned to him. SCHOOL OFFICERS GUIDE. I9 Ch. 2. City Districts of the Second Class, and Village Districts. returns of the election shall be made to the clerk of the city which constitutes the district. [75 v. 53, § 18; 82 v. 6; 83 V. 82.] Sec. 3907. In a city district of the second class in which '' - Election after the board consists of as many members as the city has wards, piembership there shall be elected biennially in each ward, at the time and in the manner provided in the preceding chapter for election in city districts of the first class, one competent and judicious person to serve as a member of the board for two years from the third Monday of April succeeding his election, and until the election and qualification of his successor ; but at the first election after it is decided that the board shall be so constituted, the persons elected in wards designated by odd numbers shall serve for only one year from the third Monday of April succeeding their election, and until the election and qualification of their successors; and the board shall ascer- tain the limits of the district, assign attached territory to wards, and make and record a plat thereof, as provided in section thirty-nine hundred. [75 v. 53, § 18; 70 v. 195, § 101.] Sec. 3908. In village districts members of the board of Election in education shall be elected on the first Monday of April an- trict". nually, to serve for the term ©f three years from the third Monday of April succeeding their election, and until the elec- tion and qualification of their successors ; the qualified elec- tors of the district, including those residing within the bounds of territory attached to the district, but beyond the village limits, shall meet between the hours of six o'clock A.. M. and six o'clock P. M. of said day, at the usual places of Sec. 3908(a). The evident intent of the law requires that when the Opening an* polls are once opened, they should be kept open until the hour prescribed <''0''''"S^ polls, for finally closing ; but the statute on the conduct of elections, section 2929, is said to be directory, and, if so, " a departure from its strict observance will not necessarily invalidate an election, where no fraud has been practiced and no substantial right violated." Fry v. Booth, 19 O. S., 25. (6). It is presumed that the same principle holds in the school law. But the burden of proof will be on the party denying the violation of personal rights in the case. The polls should be opened and closed at the precise time designated by the statute, it the statute fixes the time, or by the notice, if so fixed. (c). For method of contesting elections, see note to section 3901. *If one candidate is ineligible, and the other is not elected, the electiea is void. See note d, Sec. 3917. 20 OHIO SCHOOL LAWS. Ch. 3. City Districts of the Second Class, and Village Districts. holding school elections, organize by the appointment of a chairman and secretary, and proceed to vote by ballot for per- sons to serve as members of the board ; and if the board consist of six members, two judicious and competent persons shall be elected each year, and if it consists of three mem- bers, one such person shall be elected each year. [75 v. 53, §18] Notice of eioc- ^^^^ 39Q9 -pj^^ ^^^^^^ ^f ^j^^ 1^^^^^^^ ^f education of each city district of the second class, and of each village district, shall publish a notice of the election and meeting provided for in the preceding sections, in a newspaper of general circulation in the district, or post written notices of such meeting in five of the most pub ic places in the district, at least ten days before the holding of the same, which notice tions. Sec. 3909 (a). In the law pertaining to such notices, a day is held to be indivisible. Hence a notice issued on any day, allows the whole of that day to be included in the ten, or other number of days' notice, provided Length of no- for by a statute. Since the ten days must all expire before the meeting begins, it must also expire before the day begins on which the meeting is held, the day itself being but a point of time. The acts of a meeting held on any other day than that expressed in the notice, are invalid. 16 O., 408. 4 Western Law Monthly, 215. (6). A notice for a school electibn must state the purpose for which it is to be held, and no other business can be legally transacted thereat, 14 Vermont, 300. The transaction of such business, however, would not Omission of invalidate acts done in accordance ^( Election of memhers. Notice and conduct of election. Sec. 3923. The board of education of each special dis- trict shall consist of three members, who shall be residents of the district, and have the qualifications of an elector therein ; and when the electors of any special district, the board of education of which consists of three members, desire that the board shall consist of six members, they may make such change in the same manner as provided for city districts of the second class and village districts, in section thirty-nine hundred and eleven. [70 v. 195, § 22.] Sec. 3924. There shall be elected annually, by ballot, on the second Mondaj'^ of April, in each special district, by the qualified electors thereof, at the usual time and place of hold- ing school elections in such district, one judicious and com- petent person to serve as member of the board for three years from the first Monday succeeding his election, and until the election and qualification of his successor ; but in special districts hereafter established, the first election for members of the board shall be held within twenty days after such establishment, at least five days' previous notice of which, stating the time and place of meeting, and signed by at least three electors of the district, shall be posted in three of the most conspicuous places in the district ; at such meeting a chairman and clerk shall be chosen, and there shall be elected three members of the board, one to serve until the third Monday of April next succeeding his election, and one to serve for one year, and one for two years from said third Mon- day, and each to serve until the election and qualification of his- successor. [71 v. 57, § 23; 75 v. 120, § 19.] Sec 3925. The clerk of the district shall post written or printed notices, in three or more conspicuous places in the district, at least six days prior to the day of election, desig- nating the day and the hour of opening and closing the elec- tion ; and the election shall proceed, and a return thereof be made, in the manner provided for elections in village dis- tricts, and shall continue at least two hours. [71 v. 57, § 24.] Sec. 3924. If not held on the day fixed by law, see note on sec. 391H. Sec. 3925. Notice on the first for an election on the sixth, is not sufii- cient. See note on sec. 3909. SCHOOL OFFICERS GUIDE. 3 1 Township and Special Districts. Ch. 4. Sec. 3926. When the electors of a special district desire ^^ZiiT^Jbrny- to abandon their organization, and become a part of the '^'^"^'f'- township district of the township in which such special dis. trict is located, they make the change in the following man- ner : Written or printed notices shall be posted in at least five of the most public places in the district, signed by a majority of the members of the board of education, or one of the board and at least six resident electors of the district, request- ing the qualified electors thereof to assemble on a day, and at an hour and a place, designated in the notices, which notices shall be posted at least ten days prior to the day designated in them, then and there to vote for or against such change . the electors, when assembled at the time and place desig- nated in the notices, shall appoint a chairman and two clerks, who shall be judges of the election, which shall con- tinue at least two hours; those in favor of the proposed change shall have written or printed on their ballots the words "School — change," and those opposed thereto the words "School — no change," and a majority of the ballots cast shall determine the question whether the change shall be made ; the judges shall within five days after the election, make due return thereof to the board of education of the district ; and if a majority of the votes cast are in favor of the change, the board shall immediately certify that fact to the township board, which shall thereupon assume jurisdiction of the terri- tory, property, and afiairs |of the special district, and there- after^treat such district as a sub-district of the township dis- trict. [72 V. 27,' § 25.] Sec. 3927. The members of the board of education of the special district shall be directors of the sub-districts so theboard'to created, for the remainder of the terms for which they were torsTdisposi- elected respectively; the clerk of the special district board erty.etc^'^"^' shall deliver to the clerk of the township board all the books and papers of the special district in his custody, and notify the county auditor, in writing, of the abandonment of the organization of the district ; the treasurer of the special dis- trict board shall deliver to the treasurer of the township Sec. 3926. The general rule in computation of time within which an act is to be done is to exclude the first day and include the last. [Am. Law Begister, N. S. X .36; 16 O. S., 208, 209.] OHIO SCHOOL LAWS. Ch. 5. Joint Sub-districts. board all the books, papers, and money of the special district in his possession; the township board shall complete all unfinished business pertaining to the special district; any debt contracted by the special district board shall be paid out of the money transferred to the treasurer of the towjiship board, as herein provided, and money arising from taxes levied by the special district board ; and if such funds are in- sufficient therefor, the remainder shall be paid by a special tax upon the property of the sub district so created. [72 v. 27,§2\] CHAPTER JOINT SUB-DISTRICTS. Section 3928. Township boards may establish by mutual agreement. How the school governed and supported. Further provisions for establish- ment. May be established on petition. What petition to contain. Clerks to give notice of tiling, etc. When petition may be filed with probate judge. Security for costs to be given. Time and place of meeting of commissioners. Publication of notice. Commissioners to be appointed. Oath and duties of commission- ers. 3929. 3930. 3931. 3932. 3933. 3934. 3935. 3936. 3937. 3938. 3939. Section 3940. Clerks to have present plats and papers. 3941. The report of the commissioners. 3941a. When local board may desig- nate site for school-house. The effect of the report. Judgment for costs; what fees al- lowed. Report and judgment for sub- district. 3945. How costs paid in such cases. 3946. Petition for other purposes. Proceedings thereon. When such petition may be filed with probate judge. Election, duties, etc., of directors. Power to change joint sub-districts limited. . 3942. 3943. 3944. 3947. 3948. 3949. 3950. Section 3928. When the better accommodation of boards may scholars makes it desirable to form a sub-district, composed of establish bv . i i j /• j • r mutual agree- Tjarts of two or morc towuships, the boards of education oi mcnt. -^ the townships interested may, by mutual agreement, at a joint meeting held for the purpose, establish the same, and fix the boundaries thereof; if there is no suitable school- house within such boundaries, or if there is one, but it is not Mutual con- sent. Teacher, where examined. Section 3928 (a). [Mutual agreement implies consent of each board interested ; that is, it requires a majority of a quorum of each board to form a joint sub-district. i^b). Joint sub-districts can be established only by a transfer of terri- tory. The teacher thereof must hold a certificate from the board of exami- ners of the county in which the school-house is situated.] {c). These proceedings should be carefully recorded. See note (c) to section 3914. SCHOOL OFFICERS GUIDE 33 Joint Sub-districts. Ch. 5. suitably located, the board shall designate a site whereon to erect such building ; but if there is a suitable school-house within such boundaries, properly located, the school shall be held therein ; a chairman and secretary shall be chosen at such meeting, and the secretary shall make a memorandum of the proceedings had thereat; a copy of such memorandum, signed by the chairman and secretary, shall be transmitted to the clerk of each of the boards, who shall record the same in his record of proceedings of the board; and the secretary shall transmit a like copy of the proceedings to the auditor of each county having territory embraced in the sub-district. [70 V. 195, § 34] Sec. 3929. The school in a joint sub-district shall be how the under the control of the board of education in the township emed and in whic;h the school house is situate, of which board the director who is clerk of the joint sub-district shall be a mem- ber ; but such school shall be supported from the school funds of the townships having territory in the joint sub-district, in proportion to the enumeration of youth, as provided in sec- tions thirty-nine hundred and sixty-one and thirty-nine hundred avid sixty-two. [75 v. 84, § 35.] Sec. 3930. Joint sub districts may be established also in Further pro- . -^ visions for es- the manner provided in succeeding sections of this chapter. tabiishment. Sec. 3931. Three or more qualified electors, resident of Maybeestah- ^ lished on pe- the territory sought to be included therein, may apply, in tition. writing, to the board of education of any township wherein any part of the territory is situate, for the creation thereof. [75 V. 120, § 1.] Sec. 3932. The petition shall describe the territory what petition •^ to contain. sought to be included in the joint sub-district, may set forth the reasons requiring the creation thereof, and shall be filed with the clerk of the board cf education to which it is addressed. [75 v. 120, § 2.] Sec. 3933. Upon the filing of such petition, such clerk . ^ r. Clerks to ^ive shall forthwith give notice thereof, in writing, to the mem- notice of fii- ing, etc. Sec. 3929 (a). "Shall be a member," let him live in which township he may. (b). No money will be contributed from a township which has no youth enumerated within the joint sub-district. 3 34 OHIO SCHOOL LAWS. Ch. 5. Joint Sub-districts. When petition for joint sub- district may ))e iiled with probate judge. Security for costs to be giren. Time and place of meet- ing of commi»- ttioners. Publication of notice. bers of the board of which he is clerk, which notices shall name a suitable and convenient place, and a day and hour, for the boards to meet; he shall also transmit a like notice, forth, with, to the clerks of all other boards of education having jurisdiction over any of the territory sought to be aflected; and such clerks, upon the receipt of such notice, shall in like manner give notice forthwith of the filing of such petition, and of the time and place of meeting, to each member o' their respective boards. [75 v. 120, § 3.] Sec. 3934. It shall be the duty of such boards .to meet and consider the petition within thirty days from the time the same is filed, but if they do not do so within sixty days from such time, or having met, established, or determined not to establish a joint sub-district, three or more electors of the territory sought to be included therein may file a petition or remonstrance, for or against the same, with the probate judge of the county ; and if the territory sought to be included there- in is situated in two or more counties, the petition may be filed with the probate judge of either county. [75 v. 120, § 4; 78 v. 8.] Sec. 3935. The petitioners shall also file with the pro- bate judge the undertaking of one or more of their number, with security to the satisfaction of the judge, in the sum of one hundred dollars, conditioned that the petitioners will pay all the cost of a proceeding if a joint sub district be not estab- lished thereby. [75 v. 120, § 5.] Sec. 3936. Upon the filing of such petiticn and under- taking, the judge shall fix a time, not more than sixty days thereafter, and a place, which shall be the school-house upon the territory, if there is one thereon, and if there is more than one school-house thereon, then the house last built, and if there is no school-house thereon, then some convenient place within the territory, for the meeting of the commissioners hereinafter directed to be appointed. [75 v. 120, § 6.] Sec. 3937. The judge shall thereupon cause to be pub- lished, for four consecutive weeks, in two newspapers of oppo- site politics, printedand of general circulation iji the county where the petition is filed, notice of the filing of ruch petition, and of the time and place of meeting of the commissioners. [75 V. 120, § 7.] SCHOOL OFFICERS GUIDE. 35 Joint Sub-districts. Ch. 5. Sec. 3938. The judge shall also make an order appoint- ing three judicious, disinterested men of the county, and not residents of either of the townships to be affected, to be com- missioners, and to act in the premises; if a person so appointed die, or fail from any cause to be present and to act, or if he give notice of his inability to serve, the judge shall forthwith, by order, appoint another in his stead, who may act as if he had been originally appointed ; and the judge shall deliver a copy of the petition and his order to the commissioners, and shall instruct them in the law applicable to such proceed- ings. [75 v. 120, § 8.] Sec. 3939. The commissioners shall take an oath to dis- charge faithfully the duties r- quired by this chapter, accord- ing to the best of their knowledge and understanding, ard shall meet at the time and place named in the published nq.- tice, may examine witnesses under oath, which may be administered by one of their own number, and consider and determine the question whether a joint sub-district ought to be established. [75 v. 120, § 9.] Sec. 3940. The clerk of the several boards of education interested shall be present at the meeting of the commission- ers, and have with them the plats of the several townships, with the lines of the several sub-districts marked thereon, and such other papers and documents as will serve to inform the commissioners, and give them a correct idea of the wants of the petitionsrs. [75 v. 120, § lO.J Sec. 3941. The commissioners shall report, in writing, to the probate judge: 1. Whether or not a joint sub-district ought to be estab- lished, and their reasons therefor. 2. If they find in favor of the establishment of a joint sub district, they shall give the lines and a plat thereof; they may also change the lines of the sub-district proposed in the petition, by including therein other territory, or exclud- ing territory included therein, or both; and if there is no Commission, ers to be ap- . pointed. Oath and du- ties of com- missioners. Clerks to liave present plats and papers. The report of the commis- sioners. Sec. 3934. The petition is first to go to the board of education and ^ .. . , . £ 1 1 . , , Petition must only in case oi there being three persons who are to be affected by the neg- he first pre- lect of the board to act, or by their establishment of, or determination not hoard^ ^° ^^^' to establish such joint sub-district, can the petition or remonstrance go to the probate judge. 36 OHIO SCHOOL LAWS. Ch. 5. Joint Sub-districts. suitable school-house within such boundaries, or, if there is one, but it is not suitably located, they shall designate a site whereon to erect such building. [75 v. 120, § 11.] t%Str'^ Sec. H941 a. Where, in any joint sub-district heretofore house!^ ^*^^°^^ established by proceedings in the probate court, there is no suitable school-house, and no site has been designated where- on to erect such building, the local directors, or a majority of them, of such joint sub-district, are hereby authorized and required to designate a site for such school-house, and report the same to the clerks ol the boards of education of the several townships having territory in such joint sub-district. And the board of education of the township in which such wiuonto es-" school-housc site is located, shall, at its next meeting there- ima e. after, at which it may make the annual estimates and levies for school purposes, make the necessary estimate to purchase such school-house site, and to erect and furnish a suitable school-house thereon, according to the provisions of section Proceedings if thirly-iiine hundred and sixly-one. And if such board of educa- tion fail to make and report such estimate, to the county auditor before the first Monday of June next thereafter, the county commissioners of such county shall, at the request of a majority of the local directors of such joint sub-district, make such estimate and levy and report at the same time to the county auditor. And such levy shall be made and the money collected in like manner as the funds are levied and collected for ot>er joint sub-districts. [80 v. 62.] The effect of gj^c. 3942, The report of the commissioners, if against the report. '^ ° the establishment of a joint sub-district, shall be a bar to any proceeding to e tablish a joint sub-district out of any of the territory described in the petition for three years ; and if the report be in favor of the establishment of a joint sub-district, Sec. 3942. There is little reason to suppose that the word "final" in intended to mean any more than it would mean, in case the boards of edu- cation had themselves proceeded to complete the formation of a joint sub- district. It becomes, by this act of the commissioners, an established joint Dissolution of sub-district, ready for the completion of its organization by the election of d^trict!^* ^^^ directors and the erection of a school-house en the site designated by the commissioners. In case the legislature had established the district, a board could not, of course, repeal its act. If the boards had formed it, they could dissolve it. It is, no doubt, in the same condition it would be in had the boards formed it. SCHOOL OFFICERS GUIDE. 37 Classification and Change of Districts. Ch. 1. it shall be final, unless set aside by the probate court for fraud. [75 v. 120, § 12.] Sec. 3943. If the report be against the establishment of S^'vvSa't*'" a joint sub district, the judge shall render judgment against ^^^^ allowed. the petitioners for all the cost of the proceeding ; and the commissioners and the judge shall receive the same fees as are authorized to be charged for like services in proceedings to establish roads, and such other fees as are authorized by law. [75 V. 120, § 13.] See. 3944. If the report be in favor of the establishment ^fg^enrfof of a joint sub-district, the judge shall make an entry con- sub-district. firming the same; and a certified copy of the report, includ- ing the plat and his order, shall be delivered to the clerk of the board of education of each township interested therein, and thereafter such joint sub-district shall be fully estab- lished, and it shall be governed and controlled in the same manner as joint sub-districts otherwise established. [75 v. 120, § 14.] Sec. 3945. In such case the judge shall tax the costs of the proceedings to the board of education of the several in such case. townships interested, in such proportion as he may deem just and equitable, and certify the same to the clerks of such boards; and the ^boards shall be liable therefor, and at the first regular or special meeting of each thereafter payment of the amount so taxed to it shall be ordered. [75 v. 120, § 15.] petition for Sec. 3916. A petition may, in like manner, be filed «^<^i^ Purposes, with the clerk of the board of education of any town.«hip, ' praying for the creation of an additional sub-district, or for changing the lines of sub-districts, or for the creation of a Sec. 3945. Concerning tlie record of these proceedings see note (c) to section 3914. Sec. 3946 (a). The petition is not applicable to a case in which it is sought to change the boundaries between two special or two village or city districts, or between a special and a village or city district. It pertains cable whenf only to cases in which the boundaries of a sub-district are in some way to be affected, as only in such cases has the township board jurisdiction. But» according to section 3893, the boards of education having the management of such special, village, or city districts may transfer their territory from one to the other. Ham. Co. Com. Pleas, Boards of Ed'n Sycamore Tp. v. Henry C. Bowen ei al. {b). As to what matters public notices must contain, see notes to sec- tion 3991. 38 OHIO SCHOOL LAWS. Ch. 5. Joint Sub.istricts. Proceedings thereon. When such petition may be filed with probate judge. Election, du- ties, etc., of directors. special school district, or for changing the lines of special or village districts, and adjoining sub-districts; but when a special or village district is interested in such proposed change, the petition may be filed either with the clerk of the township board, or the clerk of the board of education of suc'i special or village district ; ar.d when any such lines have been so changed, they shall not be altered by any board or boards of education until after the expiration of three years, except upon the written consent of two thirds of the electors residing within the territory affected by the change. ' [75 v. 120, § 16.] Sec. 3947. Such petition may be filed with the clerk of the board of education of such special or village district, with the clerk of the board of education of the township, or, if the changes sought by the petition affect territory in more than one township, with the clerk of th^ board of education of either township; and, upon the filing thereof, the members of the board or boards interested shall be notified, as provided in section thirty-nine hundred and thirty three. [75 v. 120, § 17.] Tec. 3948. It shall be the duty of such board or boards to meet and consider the petition within thirty days from the time the same is filed, but on failure to do so within sixty days of such time, or if the board or boards meet and grant, or refuse to grant, the prayer of the petition, a petition or a remonstrance may be filed with the probate judge of the county, by either party, as provided in QeQlion thirty-nine hun- dred and thirty four] and, thereafter, such proceedings may be had thereon, and they shall have the same effect as is herein provided for the formation of joint sub districts. [75 v. 120, §18; 78 V. 9.] Sec. 3949. Directors of joint sub-districts shall be elect- ed at the same time, in the same manner, and for the same term, as directors of other sub-districts, and shall organize at the same time, and in the same manner, have the same powers, perform like duties, and be subject to the same pen- alties; but in such sub-districts hereafter established, the first election shall be held within twenty days after such establishment, at least five days' previous notice of which, stating the time and pltce of meeting, and signed by at least three electors of the sub-district, shall be posted in three of SCHOOL OFFICERS GUIDE. Joint Sub-districts. Ch. 5. the most public places in the sub-district ; and at such meet- ing a chairman and clerk shall he chosen, and there shall be elected three directors, one to serve until the third Monday of April next succeeding his election, and one to serve for one year and one for two years from said third Monday, and until the election and qualification of their successors. [70 v. 195, § 31 ; 75 V. 12a § 19. j Sec. 3950 No joint sub-district which is now organized, Power to or may hereafter be organized, shall be dissolved, changed or sub-districts. altered, unless by the concurrent action of the boards of edu- cation of the several townships having territory included therein; provided, however, that when any board of educa- tion, in a joint sub-district desires to dissolve, change or alter the same, the board of education desiring such dissolu- tion, change or alteration, shall notify, in writing, tlie boards of education interested, of the time when they will meet to consider the proposed dissolution, change or alteration. The place of meeting shall be the school-house in such joint sub- district; but if there be none, then at some convenient place in the vicinity of such joint sub-district. If the joint boards fail to meet, or having met, cannot agree upon a dissolution, change or alteration, as the case may be, then the board cf education desiring such dissolution, change or alteration, may appeal to the probate court of the proper county, and the same proceedings shall be had as in case of appeals in the formation of joint sub-districts, so far as applicable, as provided in sections 3935, 3936, 3937, 3938, ProcGCdiiiffs to 3939, 3940 and 3941 ; and any joint sub-district established by eflfect change, proceedings in the probate court may be dissolved, changed or altered, as provided in this section, at any time after the expiration of five years, or the court may dissolve the same at any time upon being petitioned to do so by two-thirds of the Sec. 3950. Where a joint sub-school district is established by the pro- bate court under the provisions of sections 3930 to 3950, inclusive, of the Re- vised Statutes, and the judgment of said court remains in full force and un- reversed, an action by the board of education of the township in which such joint sub-district is established, to enjoin the county commissioners from levying a tax to support the same, can not be maintained. The judgment of the probate court is final, unless reversed for error or set aside for fraud. Board of Education of Washington township, Darke county, vs. John H. Stuck et al. 39 O. S., 259. 40 OHIO SCHOOL LAWS. Ch. 6. School Funds. voters repiding in the district which is affected by the change, when the best interests of the school demand such dissolu- tion, change or alteration. [77 v. 186; 81 v. 211; 84 v 117; 86 V. 211.] CHAPTER 6. SCHOOL FUNDS. The "state common school fund." Interest on proceeds of halt and swamp lands. Section 3951. The "state common school fund." 3952. Interest upon proceeds of salt and swamp lands. The "common school fund." Accounts of common school fund —how kept, etc. Bequests, etc., in trust for com- mon school fund. Apportionment of school funds by auditor of state. To what county common school fund paid when county line divides original surveyed township. Estimate and levy for contingent fund. Limitation as to levy for contin- gent fund. Estimate to be certified to county auditor. Contingent fund for joint sub- district. 3953. 3954. 3955. 3956. 3957. 3958. 3959. 3960. 3961. Section 3962. Same when county line divides such sub-district. 3963. Funds of district composed of ter- ritory in more than one county. 3964. Apportionment of school funds by county auditor. 3965. Distribution of money after ap- portionment. 3966. Apportionm en t of com m on school fund by county auditor when county line divides original surveyed township. 3967. Apportionment of contingent fund Dy boards of education. 3968. How contingent fund to be applied in Toledo. 3969. County commissioners to lew con- tingent fund when board' neg- lects. 3970. County auditor to collect fines, etc., and inspect section sixteen accounts. Section 3951. For the purpose of affording advantages of a free education to all the youth of the state, there shall be levied, annually, a tax upon the grand list of taxable proper- ty of the state, which shall be collected in the same manner as other state taxes are collected, and the proceeds of which shall constitute the "state common school fund; " the rate of such levy shall be designated by the general assembly at least once in two years ; and if the general assembly fail to desig-. nate the rate for any year, the same shall be one mill upon each dollar of valuation of such taxable property. [70 V. 195, § 126.] Sec. 3952. The state shall pay interest annually, at the rate of six per cent, per annum, upon all money which has been paid into the state treasury on account of sales of lands commonly called "salt lands," and upon all money hereto- fore paid, or which may hereafter be paid into the state treas- ury on account of sales of swamp lands granted to the state of Ohio by act of congress; the money received from such sales shall constitute an irreducible debt of the state ; and the SCHOOL OFFICERS GUIDE. 4 1 School Funds. Ch. 6. interest shall be apportioned annually on the same basis as the state common school fund is apportioned, and distributed to the several counties as provided in section thirty -nine hun- dred andfijtysix. [70 v. 195, § 132 ; 49 v. 40, § 1.] Sec. 3953. The money which has been, and may here- The "commQn after be paid into the state treasury on account of sales of lands granted by congress for the support of public schools in any original surveyed township, or other district of country, shall constitute the "common school fund," of which the auditor of state shall be superintendent, and the income of which shall be applied exclusively to the support of common schools, in the manner designated in this chapter. [70 v. 195, §§ 127, 128.] Sec. 3954. The common school fund shall constitute an Accounts of common irreducible debt of the state, on which the state shall pay in- ^'''^^°*^'e^^°^t7 terest annually, at the rate of six per cent, per annum, to be computed for the calendar year, and the first computation on any payment of principal hereafter made to be from the time of payment to and including the thirty-first day of December next succeeding; and the auditor of state shall keep an account of the fund, and of the interest which accrues there- on, in a book or books to be provided for the purpose, with each original surveyed township and other district of country to which any part of the fund belongs, crediting each with its share of the fund, and showing the amount of interest thereon which accrues and the amount which is disbursed annually to each. [70 v. 195, §§ 128, 129.] Sec. 3955. When any grant or devise of land, or any Bequests, etc., donation or bequest of money or other personal property, is common^"^ made to the state of Ohio, or to any person, or otherwise, in trust for the common school fund, the same shall become vested in said fund; and when the money arising therefrom is paid into the state treasury, proper accounts thereof shall be kept by the auditor of state, and the interest accruing therefrom shall be applied according to the intent of the grantor, donor, or devisor. [70 v. 195, § 131.] Sec. 3956. The auditor of state shall apportion the state Apportion- common school fund to the several counties of the state semi- ^'^"^ of school funds by.au di- annually, upon the basis of the enumeration of youth there- tor of state. in, as shown by the latest abstract of enumeration transmitted 42 OHIO SCHOOL LAWS. Ch. 6. School Funds. to him by the state commissioner of common schools; before making his February settlement with county treasurers, he shall apportion such amount thereof as he shall estimate to h ive been collected up to that time, and, in the settlement sheet which he transmits to the auditor of each county, shall certify the amount payable to the treasurer of his county ; be- fore making his final settlement with county treasurers each year, he shall apportion the remainder of the whole fund col- lected, as nearly as the same can be ascertained, and in the August settlement sheet which he transmits to the auditor of each county; shall certify the amount payable to the treas- urer of his county; in each February settlement sheet he shall also enter ihe amount of money payable to the county treasurer on the apportionment of interest specified in section thirty-nine hundred and fifty two; he ^hall also enter in each February settlement sheet the amount of money payable to the county treasurer on account of interest for the preceding year on the common school fund, and designate the source or sources from which the interest accrued; he shall transmit with each February settlement sheet a certified state- ment, showing the amount of interest derived from the common school fund payable to each original surveyed township or other district of country with- in the county; and the treasurer of each county shall, at each semi-annual settlement with the auditor of state, retain in the county treasury, from the state taxes collected by him, the amount of the funds herein mentioned shown by the settlement sheet of the auditor of state to be payable to him at that time; but if such amount for any county exceeds the •Sec. 3956 (a). By section 4036 the county auditor is authorized to employ a proper person to take the enumeration in any district whenever the same is not taken as required by law, and section 4038 makes the clerk liable for all damage or loss accruing to any school district by his neglect to cause such enumeration to be taken and returned to the county auditor. (6). The Auditor of State apportions these funds to the several coun- ties, and certifies the same to the county auditors, and they apportion them to the school districts in the couuty, giving the clerks and treasurers of school districts a copy of such apportionment, and giving orders on the county treasurer for the amounts so apportioned, and taking their receipts therefor. (c). All fines, etc., collected and paid into the county treasury should be disbursed to the proper school districts in the same manner. SCHOOL OFFICERS GUIDE. 43 School Funds. Ch. 6. amount of state taxes collected therein, the auditor of state shall draw an order on the treasurer of state, in favor of the treasurer of such county, for the balance of school funds due his county, and transmit the same to such county treasurer, and the treasurer of state shall pay such order upon its pre- sentation to him. [70 v. 195, §§ 120, 130.] Sec. 3957. If parts of an original surveyed township or fractional township are situate in two or more counties, the amount of interest on common school fund due to such town- ship shall be paid in the manner provided in the last section, to the treasurer of the county wherein the greatest relative portion of such township is situate ; but if it be uncertain in which county such portion is situate, the amount of interest due to such township shall be paid to the treasurer of the oldest county in which any part of the township is situate. [70 V. 195, § 130.] Sej. 3958. Each board of education shall, annually, at a regular or special meeting, to be held between the third Mon- day in April and the first Monday in June, determine by estimate, as nearly as practicable, the entire amount of money necessary to be levied as a contingent fund for the continu- ance of the school or schools of the district, after the state funds are exhausted, to purchase sites for school-houses, to erect, purchase, lease, repair, and furnish school-houses, and build additions thereto, and for otaer school expenses. [75 V. 526, § 56 ; 75 V. 101, § 4 ; 80 v. 17, 124 ; 81 v. 177.] To what coun- ty common school fund paid when county line di- vides original surveyed township. Board of edu- cation to make estimate for expenses. Sec. 3958 (a). "It is a general rule that statutes, so far as they limit a time for the performance of an act by a public officer, for the public bene- fit, are merely directory, when time is not the essence of the thing to be done, unless there are negative words, and the act is valid if done afterwards. (6). "A notice, by a clerk of a board of education, of a tax voted by the board, to build a school-liouse, delivered to the auditor on the 11th day of June, is sufficient authority to the auditor for carrying the tax into his duplicate." II. Western Law Monthly, page 589. (c). Tuition from non-resident pupils is to be paid to the board of ed- ucation, and disbursed like other contingent funds. Neither the teacher nor the local directors have any authority to retain or to pay out such funds. (d). The term "Contingent Fund" is used to designate the local levy; because the amount ol it is contingent on the difference between the wants of the district and the amount of State funds received. It includes both the amount levied for the payment of teachers, and that for building, repairs, and other expenses. The language of this section and that of section 3967 seems to imply that the State funds are to be used only for the payment of teachers. Statutes when directory. When tax may be placed on duplicate. Tuition of non-resident pnpils. M|^hat the con- tingent fund is. 44 OHIO SCHOOL LAWS. Ch. 6. School Funds. Amount of levj- Estimate to be certified to county au- ditor. Contingent fund of joint sub-district. Sec. 3959. Such estimate and levy shall not exceed, in cities of the first grade of the first class, tnree and one fourth mills, provided, however, that the boards of education in said cities may levy one mill additional for every five thousand pupils over and above twenty five thousand enrolled in the public schools of said citie.^, which levy, however, shall in no case exceed four mills; and in cities of the second grade, first class, five mills; and in all other districts, seven mills on each dollar of valuation of taxable property. [61 v. 63, § 2 ; 63 V. 15, § 1 ; 75 v. 101, § 4; 75 v.. 526, § 56; 79 v/80; 80 v. 124; 81 V. 177.] Sec. 3960. The amount so estimated the board shall cer- tify, in writing, on or before the first Monday in June in each year, to the auditor of the county to which the district belongs, who shall assess the entire amount upon all the tax- able property of the district, and enter it upon the tax list of the county, and the county treasurer shall collect the same, at the same time and in the same manner as state and county taxes are collected, and pay it to the treasurer of the district, upon the warrant of the county auditor ; and unless he is paid a fixed salary, he shall receive one per centum on all mone}'' so collected, and no more. [70 v. 195, §§ 57, 58.J ' Sec. 3961. For a joint sub-district the estimate required by section thirty-nine hundred and fifty eight shall be made by the board of education having control of the school thereof, and apportioned to the several townships having territory therein in proportion to the enumeration of youth in the ter- Levy voted by electors. Boards liable for failure'to provide school advantages. Transfer of joint sub-dis- trict funds. Sec. 3960 (a). The board must also certify any additional amount for building or other purposes which may have been voted at a special meeting of electors, and so required to be certified in Sec. 3992. The board may certify the amount of money, not rates of levy. If the certificate is sent in after the day, the auditor is still to levy the tax, if possible. See note and authority on section 3958. (6). If the board of education fails to provide for all the youth of School age in the district, the county commissioners are to perform the work of the board, and the members of the board "shall each be severally liable in a renalty" of $2o to $50 for such failure. See section 3969. Sec. 3961. As the auditor does not actually handle or transfer the moneys, the word "transfer," must here refer to his record and warrant. He certifies to the clerk and treasurer of each township the amounts due to the joint sub-districts from such township, that the money may be properly paid by the treasurer of each township district to the joint sub districts, and that the accounts may be fully adjusted by each. SCHOOL officers' GUIDE. 45 School Funds. Ch. 6. ritory belonging to each; the board shall certify such esti- mate, so apportioned, to the county auditor, who shall add the portion for each township to the estimate for a contin- gj^nt fund certified to him by its board of education, and place it on the tax list therewith for collection as part of the township estimate; when the county auditor apportions the school funds he shall transfer to the township having control of the school, from the other townships, the amounts so assessed and collected, and certify to the clerk and treasurer of each township the amount due the joint sub-district, in- cluding state tax, interest on the common school fund, con- tingent fund, and money received from other sources, which amount shall be paid to the treasurer of the board having control of the school ; and such board shall cause to be kept such accounts as will show the funds received from each town- ship, and the disposition thereof, and transmit to the other board or boards interested, at the end of the school year, a statement of such receipts and expenditures. [75 v. 84, § 35.] Sec. 3962. When a joint sub-district is composed of „. „ ,. li'.iiii Same when fractions of two or mors counties, such estimate* shall be county line divides such apportioned to townships, as provided in the preceding sec- sub-district, tion, and the amount apportioned to the township or town- ships belonging to each county shall be certified by the board £o the auditor thereof, whose duties in the premises shall be the same as prescribed for the auditor in the preceding sec- tion, so far as the provisions thereof are applicable ; and the board shall keep accounts, and report receipts and expendi- tures, as provided in said section. [72 v. 63, § 36 ] Sec. 3963. The funds belonging to a district composed Fundsofdis- of territory in more than one county shall be paid by the tbanonr^'^*' treasurer of the other counties to the treasurer of the county *^°^"*^' in which the school-houpe of the district is situate; the audi- tors of other counties shall make settlement on account of such funds with the auditor of the county in which such school-house is situate ; and the treasurer of the district shall make the settlement required by section thirty-nine hundred and sixty-six with such auditor. Sec. 3964. Each county auditor shall, annually, imme- ^pPj ol^gchooi diately after his annual settlement with the county treasurer, t^'^udit^or""" apportion the school funds for his county ; the state common 4^ OHIO SCHOOL LAWS. Ct. 6, School Funds. school fund shall be apportioned in proportion to the enumer- ation of youth, to districts, sub-districts, and joint sub- districts, and fractions of districts and joint sub districts, within the county; but if an enumeration of the youth of any district, for any year, has not been taken and returned, such district shall not be entitled to receive any portion of said fund; the contingent funds collected from the several districts shall be paid to the districts to which they respectively belong; money received from the state on account of interest on the common school fund, shall be apportioned to the school districts and parts of school districts within the territory designated by the auditor of state as entitled thereto, in proportion to the enumeration of youth therein, and all other money in the county treasury for the support of common schools, and not otherwise appropriated by law, shall be apportioned annually in the same manner as the state common school fund. [70 v. 195, § 120; S. & C. 64, § 2; S. &C. 1406, §3; 77 v. 58.] o/money^after Sec. 3965. The auditor shall, immediately after such nfem^ ^^^ apportionment is made, enter the same in a book to be kept for that purpose, and furnish a certified copy of the appor- tionment to each school treasurer and clerk in his county; and he shall give to each of such treasurers an order on the countj"^ treasurer for the amount of money payable to him, and take his receipt therefor. [70 v. 195, § 120.J Apportion- Sec. 3966. When an original surveyed township or ment of com- . . , ..... monsc.iooi fractional township is situate in two or more counties, and fuud by eoun- ' ty auditor the land granted thereto bv congress for the support of pub- when county , o r r r linecuvides \[q schools has been sold, the auditor of the county, to whose original sur- ' •' ' shm^*"^^°' treasurer the interest on the proceeds of such sale is paid, shall apportion such interest to the counties in which such township is situate, in proportion to the youth of the town- ship enumerated in each ; such auditor shall certify to the auditor of each of the other counties the amount so ascer- tained to belong to the part of the township situate in his county, and transmit to the treasurer of each of such counties an order on the treasurer of his own county for such amount ; and the auditor of each county shall apportion the amount of such interest belonging to the part of the township in his county, to the districts or parts of districts entitled thereto, in SCHOOL OFFICERS GUIDE. 47 School Funds. Ch. 6. proportion to the enumeration of youth therein, and certify and pay the same to the proper school officers, as provided in the preceding section. [70 v. 195, §§ 121, 122; 72 v. 63, § 36.] Sec. 3967. So much of the contingent fund as may be g^ximumoJ set apart by a township board for the continuance of schools after the state funds are exhausted, shall be so apportioned by the board that the schools in all the sub-districts of the township s^hall be continued the same length of time each year; and if the apportionment be not satisfactory to the directors of any sub-district, or a majority of them, they may give notice thereof, in writing, to the county commissioners, who, at their first regular meeting for the transaction of busi- ness after the receipt of such notice, shall revise the appor- tionment, and the amount aforesaid shall be apportioned in the manner determined by the commissioners; but neither the township board nor thj commissioners shall reapportion any funds which were apportioned among the sub-districts before any preceding annual settlement, and in making an apportionment of funds, the amount set apart for any sub- district shall not be increased or diminished by reason of any deficit or surplus in the funds previously apportioned to such sub-district. [70 v. 195, § 60; 82 v. 92.J Sec. 3968. In the city of Toledo, at each annual settle- ment of the treasurer of the board of education with the coun- gent fund to be applied in ty auditor, th^re shall be placed to the credit of a sinking Toledo. fund so much of the proceeds of the levy for contingent fund as would ' e produced by a levy of two mills, and the treas- urer shall apply the same in payment of school bonds, and interest thereon, and to no other purpose. [75 v. 526, § 56.] Sec. 3967 (a). The custom which has prevailed in some township dis- school funds tricts of dividing the contingent fund and placing it in the hands of direc- remain in cus- tors, is not legal. All school funds should be retained in the custody of the treasurers, township treasurer until drawn out for the payment of expenses legally in- curred. (6). It is advisable for each board to require directors to report for contracts to be payment all contracts made under the provisions of this section to the reported, board at their next meeting after the making of such contracts. (c). Inasmuch as the larger sub-districts receive more of the State funds than the smaller sub-districts, the latter ought to receive proportion- men^of^" ally more of the township tuition fund than the former. If, however, the funds, larger sub-districts contain two or more schools, or actually require more 48 OHIO SCHOOL LAWS. Ch. 6. School Fund. County cam- missioners to levy contin- gent fund when board neglects. Sec. 3969. If the board of education of any district fail in any year to estimate and certify the levy for a contingent fund, as required by this chapter, or to provide sufficient school privilege for all the youth of t-chool age in the district, or to provide for the continuance of any school in the district' for at least six months in the year, or to provide for each school an equitable share of school advantages as required by In case of tie. Should con- tinue schools the usual time. tuition money than the smaller to sustain their schools an equal length of time, they are entitled to more. The larger sub-districts may, in some instances, be obliged to pay higher wages than the smaller. The intention of the law is to require boards of education to provide the necessary funds, all the circumstances , being duly considered, for continuing the schools of the several sub-districts an equal length of time. *(d). The adding together of Ihe State and contingent funds, and then dividing the sum equally among the several sub-districts, as is so frequent- ly done by township boards, is not a compliance with either the letter or the spirit of the law. An equal division, except in rare instances, cannot be an equitable division. (e). In case the township tuition fund is distributed by the board illegally, complaint should be made to the county commissioners under this section. Sec. 3969 (a). Several questions have come up under this section. In solving any doubts that have arisen, it has seemed proper to consider that the purpose of the section is to provide an absolute remedy against the sus- pension of a school, and to assure to each pupil in the State reasonably convenient facilities for attending school six months each year. *If, however, a board has levied up to the full limit allowed by law, and the sum produced is not sufficient to continue the schools of the district for six months, there seems to be no remedy. But if a levy under this limit fails to sustain the schools tor the minimum time prescribed in this section, then an appeal should be made to the county commissioners, whose duty it will be to raise the levy to the highest limit warranted by the law ; and they will be justified in acting as soon as they are satisfied that the amount levied by the board of the district will be insufficient to meet the demands of the law. (6). If in a large city, where teachers have been paid each month, a board of education stands at a tie in its organization, so that it can not act for months together, and the prospect for action does not brighten, the case would seem to be one in which the schools must stop unless the means are provided for continuing them. In such case the commissioners should in- terfere. (c). The law does not seem to intend that the commissioners shall stop a school which has come under their control, when six months' school has been taught during the year. They should be governed by the customs of the district. In a city they should keep up the schools 40 weeks, if that has been the custom. SCHOOL OFFICERS GUIDE. 49 School Funds. Ch. 6. this title, or to provide suitable school-houses for all the schools under its control, the commissioners of the county to which such district belongs, upon being advised and satisfied thereof, shall do and perform any or all of said duties and acts, in as full a manner as the board of education is by this title authorized to do and perform the same; and the members of a board who cause such failure shall be each severally liable, in a penalty not exceeding fifty nor less than twenty five dollars, to be recovered in a civil action in the name of the state, upon complaint of any elector of the district, which sum shall be collected by the prosecuting attorney of the county, and when collected shall be paid into the treasury of the county, for the benefit of the school or schools of the dis- trict. [72 V. 59, §59.] Sec. 3970. The auditor of each county shall collect, or cause to be collected, all fines and other money, for the eun- county luuii- •' ' i tor to collect port of common schools in his county, and pay the same to fnsp*ec*t*8ecUon the county treasurer; he shall inspect all accounts of inter- e'ounts!*^*^ est accruing on account of section sixteen or other school lands, whether the same is payable by the state or by the debtors; and he shall take all proper measures to secure to each school district in his county the full amount of school funds to which it is entitled. [70 v. 195, § 120.] (d). Local directors, or patrons of the school, may appeal to the com- missioners under the fourth item here enumerated, if the township board of education have treated the sub-district unjustly in the apportionment of funds, or continue to treat families unjustly by imposing the necessity of excessive travel to reach a school. (e). Under the fifth item, if a school building is unsafe, or becomes so, any persons interested may, after due appeal to the board of education, ap- peal to the commissioners, who should consider the necessity for action. The same is true in case the scliool-house or school premises are in condi- tion to engender disease, or great discomfort, or are intolerably near to a nuisance or source of disease, as a glue factory, slaughter-house, ,'untidy stable, stagnant pool, or the like. v Sec. 3970. The list of such fines is here appended : m! Sec. 3479 (Amended 1881). Penalty /or avoiding toll on turnpikes o« plankroads. Sec. 4033. Penalty against the clerks of local boards who fail to take th# enumeration. Secs. 4201-04. Penalty for allowing certain animals to run at large. «• Sec. 4382. Penalty against owners or keepers ofv:harf boats. Local direc- tors may ap- peal from towuship boards. Case of unsafe school houses, nuisances, etc. Penalties and forfeitures payable into the township (district) treasury. 50 OHIO SCHOOL LAWS. Ch. 6. School Funds. Penalties and forfeitures payable into the county ireasury. Penalties and forfeitures vavable into the State treasnrv. Secs. 4401-02. Penalty against peddlers that do not obtain a license. Sec. 1504. (A. mended 1883). Penalty against township clerk failing to make detailed statement — act relating to oil wells. Laws of 1883, page 191. Sec. 288. Penalty against insurance corporations and others violating the provisions of Chapter YIII, Title III, Revised Statutes. Secs. 1052 and 4215. Relating to dog tax. Sec. 1279. Relating to the disposition, by the prosecuting attorney, of the proceeds of the sale of timber tliat grew on State or school lands. Secs. 1280-81. Providing for the disposition of the proceeds of the sale of property, stolen, embezzled, or ohtiined under false pretenses. Sec. 1375. Penalty against township trustees and treasurers who refuse to serve. Sec. 3969. Penalty against members of a board of education v. ho fail to perform certain duties. Sec. 4027. Penalty against parents and guardians for detaining chil- dren from school contrary to law. Sec. 4038. Penalty against the clerk of a local board for failing to take the school enumeration. Sec. 4045.' Penalty against treasurers of school districts for failing to make their annual settlement. Sec. 4061. Penalty a^^'inst county auditors and clerks of boards of educa- tion for failing to make certain reports. Sec. 4063. Penalty against county auditors. Secs. 4088-89. Penalty against institute committee for failing to make required report. Secs. 4217-18. Penalty against fishing unlawfully in Lake Erie. Sec. 4398 (amended) 4399. Relating to pedd/ers' /icense. Sec. 4487. Penalty against auditors, engineers, commissioners, and probate judges, who fail to perform certain duties relating to county ditches. Sec. 6396. Penalty against assessors, physicians, midwives, clergymen, sex- tons, and probate judges, who fail to furnish statistics of births and deaths. Sec. 19 of act relating to sinkholes and fissures. Laws 1883, page 2ll. Secs. 1050-51. 'Pennlty against county auditors tor failing to report to State Auditor. Sec. 1524. Penalty against assessors for neglecting or refusing to make out and return statistics. Sec. 1525. Penalty against any person, company, or corporation, refusing to make out and deliver a statement of facts for taxation. Sec. 3225. Relating to the proceeds of the sale of unclaimed goods by express companies, common carriers, etc. * Penalties for the violation of the compulsory education act, passed April 15, 1889. SCHOOL OFFICERS GUIDE. 51 Provisions Applying to all Boards. Ch. 7. CHAPTER 7. PROVISIONS APPLYING TO ALL BOARDS. Section 3071. Powers of boards of education. 3972. What property the boards have title to. 3973. School property exempt from taxation. 3974. Conveyances and contracts. .3975. Boards may accept bequests. 3976. Process against boards and how served. Duties of prosecuting attorney and city solicitor. Tie votes to be decided by lot. Oath of members and other offi- cers. 3977. .3078. 3979. Section 39-<0. Organization of board. Vacani;ics in board, and how filled. Quorum ; yeas and nays to be trtken in certain cases. Absence of president or clerk. Record of proceedings, and attes- tation thereof. Boards to make rules ; illegal meetings. Boards may make and enforce rules for vaccination. 3981. 3982. 3983. 398-1. 3985. 3986. Section 3971. The boards of education of all gchool disr tricts now organized and established, and of all school dis- tricts organized under the provisions of this title, shall be and they are hereby declared to be bodies politic and corpor- ate, and, as such, capable of suing and being sued, contractiDg and being contracted with, acquiring, holding, possessing, and disposing of property, both real and personal, and taking and holding in trust, for the use and benefit of such districts, any grant or devise of land, and any donation or bequest of money or other personal property, and of exercising such other powers, and having such other privileges as are con- Boards of edu- cation — pow- ers and duties. Sec. 3971 (a). Corporations must take and grant by their corporate names. 2 Kent, II Ed., 351. (b). A board of education is not liable in its corporate capacity, for damages for an injury resulting to a pupil while attending a common school, from its negligence in the discharge of its official duty in the erec- tion and maintenance of a common school building under its charge, in the absence of a statute creating a liability. Finch v. Board of Education, 30 O. S., 37. (c). It is never desirable or proper, and it is questionable whether a board of education has the right, to build on property to which it has not acquired a clear title by lease, deed, or process of law. In the latter case either the time for appeal to a higher court should have elapsed, or the ap- peal, if made, should have been decided. (d). The power to contract, implies the power to settle with contractors and to do this in the interest of the district, so as to avoid the expense of litigation. Where a contracting party has rights which he can enforce in equity, a board of education is, like other municipal corporations, author- Liability of boards for in- jury to persons. Building on land without clear title. Powers of boards to con- sider equities in contracts. 52 ' OHIO SCHOOL LAWS. Ch. 7. Provisions Applying to all Boards. ferred by this title; but when a board of education decides to dispose of any property, real or personal, held by it in its corporate capacity, exceeding in value three hundred dollars, it shall sell the same at public auction, after giving at least thirty days' notice thereof, by publication in some newspa- per of general circulation, or by posting notices in five of the most public places in the district to which such propertv tatemaybe belongs. Provided, that when such board has twice offered sold or ex- changed. a tract of real estate for sale at public auction, as hereinbe- fore provided, and the same is not sold, the board inay sell said real estate at private sale, either as an entire tract, or in parcels thereof, as the board may deem best, and the presi- dent and secretary of the board shall execute and deliver the deed or deeds necessary to complete such sale or sales. Pro- vided, that upon a vote of the majority of the members of any board of education, and a concurring vote of the council of any municipal corporation, that an exchange of any real estate held by such board of education for school purposes, for real estate held by such municipal corporations for muni- cipal purposes, will be mutually beneficial to such school dis- trict, and to such municipal corporation, such exchange may be made by conveyances, to be executed by the mayor and clerk of the municipal corporation, and by the president and clerk of such board of education. [70 v. 195, § 37; 80 V. 36; 8-5 V. 133.] Sec. 3972. All property, real or personal, which has What property , . , . 11,, , ■, r , the b«mrdB heretofore vested in and is now held by any board of educa- have title to. tion, or the council of any municipal corporation, for the use ized to recognize and provide for these as well as for strictly legal rights. See Brewster v. Syracuse, 19 N. Y., 116 ; Friend v. Gilbert, 108 Mass., 408. (e). As to what notices must contain, see notes to section 3991. (/). See opinion of Attorney General, under section 3977. Rights of Sec. 3972 (a). Under the act of May 1, 1873 [70 v. 195], the corporate to boards in boards of education therein provided for, succeed to all existing rights of certain ca«es. action in relation to the common school property and funds which were theretofore vested, by previous legislation, in other agencies to whose control such property and funds had been confided- Crof ton r. Board of Education, 26 O. S., 571. (6). Sec. 6877, E. S. Whoever maliciously injures or defaces any Defacing church edifice, school-house, dwelling-house, or other building, its fixtures, penalty'F"/^ books, or appurtenances, or commits any nuisance therein, or purposely and maliciously commits any trespass upon the inclosed grounds attached SCHOOL officers' GUIDE. 53 Provisions Applying to all Boards. Ch. 7. of public or common schools in any district, is hereby vested in the board of education provided for in this title, having under this title jurisdiction and control of the schools in such district, [70 v. 195, § 39.] Sec. 3973. All property, real or personal, vested in any school prop- board of education, shall be exempt from tax, and from sale from taxation. thereto, or any fixtures placed thereon, or any inclosure or sidewalk about the same, shall be fined in any sum not more than one hundred dollars. [63 V. 175, U, S. & S., 280, ? 51 ; 70 v. 210, § 73.1 (c). Sec. 6831, R. S., provides that " Whoever maliciously burns, or p , , attempts to burn any * * * * school-house * * * shall be im- burning school prisoned in the penitentiary not more than twenty years." (d). Sec. 6835, E. S., provides that " Whoever, in the night season, ma- p ij. (• liciously and forcibly breaks and enters any * * school-house felony and » « s with intent to commit a felony, or with intent to steal property of any value, shall be imprisoned in the penitentiary not more than ten years nor less than one year." (e). A similar penalty is imposed by section 6836, K. S., for entering a school-house in the day-time or night season, and attempting to commit a felony." if). Sec. 6837, K. S., provides that " Whoever maliciously, in the day- , , , ' , , , •• . , . "^ Penalty for time, breaks and enters any •=" " " school-house ■'' ■• • with intent breaking into to steal, shall be fined not more than three hundred dollars, and imprisoned to^teal^^^^^ not more than sixty days." (g). Sec. 6896, E. S., provides that "Whoever willfully interrupts or disturbs any assembly of persons met for a lawful purpose, or any person penaltv for while he is at or about the place where such assembly is to be held, or is and disturbing a „ , . meeting has been held, shall be fined not more than fitty dollars, or imprisoned not (school). more than ten days, or both. [73 v. 224, §1 ; 61 v. 98, §1, S. & S., 288 ^ 70 V. 216, 'i 74.]" (h). A member of a board of education is as liable to prosecution for violently disturbing a school in session as any other person. Such member is also equally liable with any other person for forcibly breaking into a Members of school-house, for the purpose of admitting any meeting, or for promoting hoard liable other use of the school-house not authorized by a majority of the board of school, or education, or by law. In short, an individual member of the board, as such, Bchool^use*' has no more authority concerning school property than any other individual and the like, has. If he is, by law or by the board, constituted a committee to look after the school-house, he may exercise such authority ; but even then, he has no power to open the house for purposes unauthorized by the board. The lim- itation of course applies, that for mere errors of judgment, with proper pur- pose and intent to act within the authority vested in him by the board, the law Avill exonerate him. (i). By "public school-houses" are meant such as belong to the public, „„ J J- If 1 1 .V1-1J 1 1 1 .,,., What arepub- and are designed tor schools established and conducted under public author- lie school- ity. The fact that the use of the property is free is not a necessary element "°"'^^'^- in determining whether the use is public. Gerke v. Purcell, 25 O. S., 229. 54 OHIO SIIOOL LAWS. Ch. 7. Provisions Applying to all Boards. Conveyances and contracts. Boards may ac- cept bequests. on execution, or other writ or order in the nature of an exe- cution. [70 V. 195, § 72.] Sec. 3974. All conveyances made by a board of education shall be executed by the president and clerk thereof; no mem- ber of a board shall have any pecuniary interest, eithe'- direct or indirect, in any contract of the board, or be employed in any manner for compensation by the board of which he is a member, except as clerk or treasurer; and no contract shall be binding upon any board unless it be made or authorized to be made at a regular or special meeting of the board.' [70 v. 195, 4^§ 31, 38.] Sec. 3975. All boards of education may, by the adoption of a resolution, accept any bequest made to them by will, upon the conditions and stipulations contained in the will, and for the purpose of enabling such boards to carry out the conditions and limitations upon which the bequest is made, they are authorized to make all rules and regulations that may be required to fully carry into effect the provisions of the will in relation to ihe bequest. [73 v. 205, § 2.] I^ease and sale of school lands. Injury to school timber. Auditors' fees. How to enforce claims against boards. \on-taxation of school prop- erty. Taxation of school lands. Members can- not draw pay except as t-lerk or treasurer. ij). For leasing of school lands and \oid leases, see 5 O., 184, and 8 O., 174. (k). For leasing and sale of school lands, see E. S., sees. 1404-1440. For penalty for injury to timber on school lands, see sec. 6880, R. S. For county auditors' fees for transfer of sale of school land, for payments on the same, etc., see section 1073, R. S. Sec. 3973 (a). A mechanic's lien or a mortgage could not be enforced, since such enforcement would require an "order in the nature of an exe. cation." (6). For additional provision relating to non-taxation of school prop- erty, see section 2732, R. S. (c). For provisions relating to taxation of school and ministerial lands held under a lease exceeding fourteen years, see section 2733, R. S. Sec. 3974 (a). The failure of an officer to attach his official title to his signature, will not affect the instrument so far as the district is concerned ; provided, the contract was autliorized, and made for the district, and this fact can be shown. (6). A member of a board of education cannot draw wages or pay as superintendent of schools or of buildings, as teacher or janitor, as contrac- tor for fuel, for drawing fuel, or for any other service to the district in which he is serving as such member, except for services as clerk or treasurer. Nor can a local director draw pay for any such service in his sub-district, if he is a member of the township board, or if the service is such as the board of education or the statute has authorized the local board to contract for. SCHOOL OFFICERS GUIDE. 55 Provisions Applying to all Boards. Ch. 7. Sec. 3976. The process in all suits against a board of edu- ^'oarJjy^ aud^"*^*^ cation shall be by summons, and shall be served by leaving a ^^"^^ served. copy thereof with the clerk or president of the board. [70 v. 195, § 68.] Sec. 3977. The prosecuting attorney of the proper county, proseeutiug or, in case of a city district, the city solicitor, shall prosecute act as counsel all actions which, by this title, may be brought against any board. member or officer of a school board in his individual capacity, and shall act in his official capacity as the legal counsel of such boards or officers in all civil actions brought by or against them in their corporate or official capacity ; but no prosecu- ting attorney or city solicitor shall be a member of the board (c). There is, perhaps, no reason why a local director who is not a Local director member of the township board of education may not teach, or furnish fuel, i^/'i^the^Mib-'^^ or the like, in a sub-district in which he is not a local director. The prin- districts, ciples of law without this statute would decide that a party cannot be on both sides of a contract. 27 O. S., 159 and 195; Parsons on Contracts, vol. 1, p. 86; Pollock's Principles of Contract, p. 253. (d). School property should be insured, but not in a company repre- Insxirance of sented by a member of the board. See section 6969, R. S. The Attorney- orty.° ^^°^ General concurs in this opinion ; see opinions of Attorney-General, vol. F, 36. (e). Sec. 6975, R. S. "A member of a board of education organized under any law of this state, who accepts or receives any compensation for Accepting pay his services as such member, except as clerk or treasurer of said board, shall ^^ embezzle- mcnt be deemed guilty of embezzlement of the amount so received, and punished accordingly." Sec. 3976 (a). The want of notice is waived by the voluntary appear- i^-Qtice ance of the party for any purpose directly connected with the cause. (b). The legality of the election of members of the school board is not a subject of inquiry in a suit to enforce payment of money due. 45 Mo., 294. (c). Title to office cannot be questioned collaterally, but must be done when and liow in a direct proceeding by quo warranto, in one of the tribunals provided by title to office law for hearing and determining all questions pertaining to elections. 44 tioned. Mo., 154. (cZ). In the absence of restriction, express or implied, the school board has authority to employ an attorney to conduct suits to which the district Employment is a party, and it is bound to pay for his services. 30 Vermont, 285. See and how paid. the next section. Sec. 3977 (a). The following opinion was rendered by Attorney-Gen- rrosecutingat- eral Nash, November 4, 1881 : to™ey is attor- ' ney for boards "Section 3977 of the Revised Statutes provides that the proscuting at- of education. torney of a county shall be the attorney for the school boards within his county, except in city districts, and sets forth what duties he shall perform in this regard. This service is made one of the duties of the prosecuting 56 OHIO SCHOOL LAWS. Ch. 7. Provisions Applying to all Boards. Tie votes to be decided by lot of education; provided, that in counties haviug a county so- licitor such officer shall prosecute all actions which may be brought against any member or officer of a school board in his individual capacity, and shiU do and perform all the dutiesherein required of the prosecuting attorneyas to schools, school boards, and officers of schools in the county, outside of said city; but for such service he shall receive no additional compensation. [70 v. 195, § 69 ; 79 v. 26 ] Sec. 3978. In all cases of tie votes, at an election for members of a board of education, or of directors of a sub-dis- trict, the judges of election shall decide the election by lot; When another attorney may Ik.- employed. Authority for paying attor- ney fees. Additional compensation. Additional duties. Effect of fail- ure to cast lots. Of failure to sign poll-books before separat- ing. Omissions and mLstakes may be corrected. attorney which he is bound to render under his salary, as no express pro- vision is made for the payment of such services. " It frequently happens that the prosecuting attorney, on account of his numerous other duties, is wholly unable to perform the service required by this section, and it sometimes happens that cases arise which require that the prosecuting attorney should have assistance in them. In such cases as these, the question — 'Have boards of education the right to employ and pay counsel, or, in short, have such boards the right and authority to pay attorney fees in defending or prosecuting cases in which they are parties?' becomes important. '' Under such circumstances as I have indicated above, I answer the question in the affirmative, and for this answer I rely on section 3971 of the Revised Statutes. This section makes boards of education bodies politic and corporate, and vests them with the power of suing and being sued. I think that the law which authorizes these boards to sue and be sued, by im- plication confers upon them authority to do all things that are necessary to prosecute successfully or defend a suit." Opinions Attorney-General, vol. F, 145. (6). Public officers for whom pay is provided by statute, will not be allowed compensation for extra work, unless this is specially authorized by statute. 9 Neb., 85 ; X Central L. J., 299. (c). The prosecuting attorney is required to proseciite for injuries to timber on school lands. Section 1279, R. S. Sec. 3978 (a). In case tlie judges fail so to decide, the board mnst ap- point, or in case of a local director, a new election must be had. This " lot," like all other matters required of the judges of elections, must be })erfected, their decision made, and the certificate of such action signed before the judges separate. " When such board has once dissolved, its officers are fundi officio, and can no longer perform official acts relating to tlie election, not even to the signing of returns." 21 O. S.,'216. But in case such judges fail to sign poll-books, tally-sheets [and certifi- cates such as above referred to] to fill up blanks in a caption, or to carry out the aggregate of the votes, such omissions and mistakes may be corrected, on the trial of a contest, by parol evidence, and when so corrected, the doc- SCHOOL OFFICERS GUIDE. 57 IPOP^^' Provisions Applying to all Boards. Ch. 7. and in other cases of failure to elect members of the board, or in case of a refusal to serve, the board shall appoint. [70 V. 195, § 43.] Sec. 8979. Each person elected or appointed a member bers and other of a board of education, or elected or appointed to any other office under this title, shall, before entering upon the duties umenls sustained by parol proof, are competent evidence of the result of the election. IG O. S , 184. (6). In case of trustees, collectors, and the like, general reputation of their being such officers, and proof of their acting as such, is prima facie sufficient, without producing evidence of their election, especially where there is evidence of their acting under color of election. 7 Wendell's Rep., 341. (c). An individual coming into office by color of election or appoint- ment, is an officer de facto, and his acts in relation to the public, or to third persons, are valid until he is removed^ although it be, [in the end], conceded that his election or appointment was illegal. 5 Wendell's Rep., 170. Sec. 3979 (a). But a person so elected may appear before any person authorized by law to administer an oath, and may take his oath of office. This should be done in case the member elect is, for any reason, unable to attend the meeting for organization. The certificate of the officer adminis- tering the oath should be sent to the board and copied in the records, to obviate all questions. For the same reason, a record should be made of the oath administered to each member. (6). Officers who have sworn to perform official duties may be com- pelled to perform them by writ of mandamus. This writ issues from the supreme, district, or common pleas court. R. S., section 6742, as amended 1880. They may also be restrained from doing illegal acts under color of au- thority as officers, by writ of injunction. This writ issues from the supreme or common pleas court, or a judge of either; or from the probate court, in case none of the above named judges are in the county. R. S., section 5573. (c). But to boards of education is left large discretion as to the man- ner of performing their official duties, and courts will not interfere with this discretion. 23 O. S., 211. [d). Officers required by law to exercise their judgments, are not answerable for mistakes of law or mere errors of judgment, where there is neither fraud nor malice. Jenkins v. Waldron, 11 Johnson's Rep., 114. (e). An officer acting within the scope of his authority is only respon- sible for an injury resulting from a corrupt motive. 17 Ohio, 402. (/■) A public officer who is required by law to act in certain cases, ac- cording to his judgment or opinion, and subject to penalties for his neglect, is not liable to a party for an omission arising from a mistake or want of skill, if acting in (food faith. Seamen v. Patten, 2d Caine's Rep., 312. (g). But an officer entrusted by the common law or by statute is liable to an action for necjUgence in the performance of his trust, or for fraud or neglect in the execution of his office. Jenner v. JoliflTe, 9 John. Rep., 381. What evidence of official char- acter is re- quired in cer- tain cases. Of officers de facto. May be taken before any offi- cer authorized to administer oaths. Mandamus to compel officers to act. Injunction to restrain them from acting. Not liaWe for honest mis- takes. Liable for will- ful neglect. 58 OHIO SCHOOL LAWS. Ch. 7. Provisions Applying to all Boards. Organization ; selection of of- ficers. Vacancies in board, and how filled. of bis office, take an oath or affirmation to support the con.sti- tution of the United States and the constitution of the state of Ohio, and that he will perform faithfully the duties of his office; which oath or affirmation may be administered by the clerk or any member of the board. [71 v. 15, § 42.] Sec. 3080. Each board of education shall organize by choosing one of its members president, and, except township boards, by choosing also a clerk, who may or may not be a member of the board ; if at the organization of a township board the township clerk is absent, the board shall appoint one of its members clerk pro tempore; each board of educa- tion, however, as chosen under the provisions of section 3899, shall further, at its first regular meeting after its annual or- ganization, choose or appoint an auditor, who shall not be a member of the board, and who shall receive such compensa- tion and perform such duties as the board may provide for and determine ; and such organization shall be effected on the third Monday of April of each year, except as otherwise provided in section thirty-nine hundred and fourteen. [70 v. 195, § 29 ; 70 v. 241, § 44 ; 84 v. 212.] Sec. 3981. Vacancies in any board of education, except of a township district, arising from death, non-residence, rfs- ignation, expulsion for gross neglect of duty, failure of a per- son elected or appointed to qualify within ten days after the annual organization or after his appointment, or from other cause, which occur more than fifteen days before the next When board may organize. President enti- tled to vote. Resignation, to whom made. {h). The performance of any act prohibited by statute, or any willful neglect of duty, and for which no penalty is provided by enactment, is a misdemeanor. Sec. 3980 (a). For the number of votes necessary in the election of officers of the board, see section 3982. (6). If the board of education, for any reason, fails to organize on the day named in the law, they may organize on a subsequent day. For want of a quorum a minority may adjourn from day to day. See note to section 3958. (c). The president has the right to vote on all questions coming before the board. If by such vote a tie is produced, the motion is lost. Sec. 3981 (o). Temporary absence from home will not vacate an office ; but if such absence creates embarrassment the holder ought to resign. (6). The resignation of a district or sub-district officer must be made to the other members of the district or sub-district board, or to one of them, and should be in writing. SCHOOL OFFICERS GUIDE 59 Provisions Applying to all Boards. annual election, the board shall fill without delay until the next annual election, when a successor shall be elected to fill the unexpired term ; any vacancy which occurs in a township board, from any of the causes aforesaid, shall be filled by the election of a clerk by the directors of the proper sub district ; and a clerk of a sub district who is guilty of gross negbct of Ch. 7. A person claiming to be a legal officer, and in possession, cannot be voted out by the board, but should be proceeded against by a writ of quo warranto. Section 6760, E. S. (c). The section provides that the vacancy shall he filled without delay. Hence, if any other business is attempted to be performed before the filling of such vacancy, a point of order should be raised under tlxis clause of the section. The law here provides that no vacancy need exist when a vote is to be taken, hence no item of business enumerated in section 3982 can be transacted which does not receive the votes of a majority of all the mem- bers constituting a full board. To elect an officer of the board requires a majority of all the members composing the board of education, by law, in the given district. See section 3982. But though a member holding an ofiice may die, the election of a member to fill the vacancy is not the election of an officer. The election of the member, not being in the list of acts requiring such full majority vote, may be efl'ected by a majority of a quorum. (d). An officer elected for three years continues for three years, and until his successor is elected and qualified. 23 Vermont, 416. (e). The officer, once qualified, continues in the responsibilities of his office until his successor is qualified. There can be no successor until alter such qualification takes place. 22 Pick., 122 ; 4 Ky., 433. (/). An officer may resign, but he remains in his office subject to all its responsibilities, until his resignation is accepted. It is generally sup- posed that an office is held at the will of either party. It is held at the will of both. Resignations are so generally accepted that, with respect to lucrative offices, it has grown into a common notion that to resign is a matter of right. But it is otherwise. The public has a right to the services of all citizens, and may demand them in all civil departments as well as in the military. Hoke t). Henderson, 4 Devereux, N. C, 1. {(j). The following case goes stUl further, holding a resigning officer to his responsibilities and duties until his successor is elected or appointed and qualified : " Tennessee constitution, article 7, section 5, provides that ' every officer shall hold his office until his successor is elected or appointed and quali- fied.' Held, that this applies to a resigning officer, who must continue in the discharge of his duties until his successor is elected or ai)pointed and qualified ; that the officer remains under an obligation to obey a writ of mandamus notwithstanding his resignation, and is guilty of contempt if he fails to comply with the writ, and the obligation passes to his successor when qualified." Watts v. Lauderdale Co., 14 Central Law Journal, 210 U. S. Circuit Court, Dist. West Tenn, Filling vac'iioy first business. Number of votes required to appoint a member. How long members elect- ed serve. OlHcer respon- sible till resig- nation, accept- ed. And until his successor is qualified. 6o OHIO SCHOOL LAWS. Ch. 7. Provisions Applying to all Boards. Quorum : yeas iuid ntiys to be til ken in cer- tain cases. duty shall cease to hold his office, and a new election shall be held by the directors to fill such office. [70 v. 195, § 43.] Sec. 3982. A majority of the board of education shall constitute a quorum for the transaction of business; upon a motion to adopt a resolution authorizing the purchase or sale of property, either real or personal, or to employ a superinten- If all the mem- bers are dis- qualifled, what? Township clerk's name not called. A majority of a quorum, when Hulficient. Power cannot be delegated. Manner of con- tracting. This section mandatory. Buying maps, etc., out