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Statement of the Case.

BUCKMAN, AUDITOR, V. THE STATE, EX

BOARD OF EDUCATION.

REL.

Village school district_Vote of electors not necessary to create,

when-Section 3888, Revised Statutes, amended-Act of April 2, 1906.

By force of the provisions of Section 3888, Revised Statutes, as

amended April 2, 1906, and in effect April 16, 1906 (98 0. L., 217), each incorporated village then existing-April 16, 1906 or since created, "together with the territory attached to it for school purposes, and excluding the territory within its corporate limits detached for school purposes, and having in the district thus formed a total tax valuation of not less than one hundred thousand dollars," constitutes and is a village school district, no vote of the electors of such village being necessary to the creation or establishment of such district.

(No. 11865—Decided November 9, 1909.)

ERROR to the Circuit Court of Summit county.

On April 5, 1909, the board of education of Coventry township, Summit county, Ohio, filed its petition in the circuit court of Summit county against Mark D. Buckman, auditor of said county, praying that a writ of mandamus issue against said Mark D. Buckman commanding him to apportion to said board of education for its use, the sum of $2,060.66 of the school funds of said county. On the filing of said petition an alternative writ of mandamus was allowed by the circuit court, and was made returnable on the 12th day of April, 1909, at 10 o'clock A. M. On April 8, 1909, the defendant, Mark D. Buckman, by way of showing cause why he had not complied with

Statement of the Case.

the command of said alternative writ, filed in said cause the following answer:

“The defendant for answer to the alternative writ issued in this cause, says: that plaintiff ought not to have his writ of peremptory mandamus; because he says:

“1. Certain described territory within Coventry township in said county, and embracing territory constituting, until December 28, 1907, sub-school district No. 11 and portions of subschool districts Nos. 4 and 12 in Coventry township in said county, was, by proceedings duly had under the provisions of Sections 1561a-b-c of the Revised Statutes of Ohio, on the 28th day of December, 1907, created a village, named Kenmore.

"2. That the taxable valuation of the property of said village in the spring of 1908 was $588,790.00.

"3. That by the creation of said territory into a village, said village of Kenmore thereby became and ever since has been and still is a village school district, invested with all the legal rights, duties and privileges of a village school district.

“4. That on the 28th day of February, 1908, the electors of said village school district duly elected as provided by law, a board of education for said district, which board was duly qualified, organized and entered upon the discharge of its duties as such board of education for said village school district, and is still so acting.

“5. On the 1st day of June, 1908, said board of education duly fixed the rate of taxation necessary to be levied and assessed for all school pur

Statement of the Case.

day of

poses, after the state funds were exhausted, at 672 mills, and on the 6th day of June, 1908, certified in writing to this defendant the amount of levy so fixed.

6. On the day of June, 1908, J. W. Horner as clerk of the board of education of said Kenmore village school district duly certified to the defendant the number of persons of school age in said district to be 230, and on the — June, 1908, S. P. Marsh, clerk of the board of education of said Coventry township, certified to the defendant the number of persons of school age in Coventry township school district to be 488. None of the youth of school age residing in the territory embraced in said village of Kenmore being included in said number.

"7. There having been some question raised as to the existence of said Kenmore village school district this defendant assessed upon all the taxable property in said district six mills per dollar valuation for school purposes; said rate being the same as that fixed and certified by the board of education of Coventry township school district for school purposes.

“8. In February last this defendant made an apportionment of the money collected by the said county treasurer and levied and assessed on the property of said Coventry township school district, outside of said village, and on the basis of the taxable property assessed in said village of Kenmore school district, respectively, and including the amount received from the state fund and Western Reserve fund, so called. And the amount so apportioned to said Kenmore village school dis

Statement of the Case.

trict was $2,060.66, and the sum so apportioned to said Coventry township school district was $3,451.49.

“9. Having been informed by F. J. Rockwell, the prosecuting attorney of said county, that the court of common pleas of said county had decided that the said village of Kenmore was by its creation legally constituted a village school district, and being advised by said prosecuting attorney that it was lawful so to do, defendant notified both of said boards of education to come to the defendant's office and receive the money so apportioned to them, which they did, and on the 5th day of March, 1909, C. E. Thornton as treasurer of the board of education of said Coventry township school district received and receipted for said sum of $3,451.49 so as aforesaid apportioned to said district, making no claim for any further sum, either then or since that time, and on the 9th day of March, 1909, B. W. Swigert as treasurer of the board of education of said Kenmore village school district received and receipted for said sum of $2,060.66 so as aforesaid apportioned to that district.

“This defendant claims that all his acts as aforesaid set forth have been done in conformity to law and that the relator is not entitled to the relief prayed for.

“Wherefore he asks that said petition be dismissed."

To this answer the plaintiff demurred, assigning as ground of demurrer that said answer "does not allege facts sufficient in law to constitute a defense to the said petition.” This demurrer was sustained

Opinion of the Court.

by the circuit court, and the defendant not desiring to plead further the court allowed and caused to be issued a peremptory writ of mandamus against said Mark D. Buckman commanding him to apportion to said plaintiff, the board of education of Coventry township, said sum of $2,060.66 as prayed for in its petition. To obtain a reversal of this judgment of the circuit court Mark D. Buckman prosecutes the present proceeding in

error.

Mr. F. J. Rockwell, prosecuting attorney; Mr. H. C. Spicer, and Messrs. Stuart & Stuart, for plaintiff in error.

Messrs. Grant, Sieber & Mather, for defendant in error.

CREW, C. J. The record in this case presents but a single question, which is: did the village of Kenmore by its creation as an incorporated village, thereby and by that act, become a village school district ? It being admitted on the record that the tax valuation of the property within said village at the time of its incorporation was largely in excess of one hundred thousand dollars, this question becomes one merely of construction, to be determined by the proper interpretation of the provisions of Section 3888, Revised Statutes, as amended April 2, 1906 (98 0. L., 217), which amended section reads as follows: "Each incorporated village now existing or hereafter created, together with the territory attached to it for school purposes, and excluding the territory within its corporate limits detached for school purposes, and

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