State ex rel. Marvin v. Withrow

SWING, J. This is an action in quo warranto. The fact's which are decisive of the issues are not in dispute. Section 3897 Rev. Stat. passed in 1904, provided that in city school districts the board of education should consist of not less than two members nor more than seven members elected at large, and not less than two nor more than thirty members elected from subdistricts. It further provided that in cities containing a population of less than fifty thousand the board of education should consist of not less than three members nor more than seven members elected at large. Under the provisions of this act, the five cities of this state having a population of over fifty thousand had, at the time this aet was .amended, May 9, 1908, boards of education constituted as follows: [216] CITY SCHOOL BOARDS. AT LARGE. SUB-DIS. Cincinnati .............................. 3 24 Cleveland ..........■............. 5 2 Columbus ....................... 3 12 Toledo ......................... 3 2 Dayton ........................ 2 10 This act was amended May 9, 1908 (99 O. L. 585). By this amendment .it is provided that in city school districts the board of education shall consist of'not less than three nor more than seven members elected at large, -provided that in cities having a population of more than fifty thousand persons the board shall consist of not less than two nor more than seven members elected at large, and of not less than two members, nor more than twelve members elected from subdistricts. By this act the members to be elected at large from cities is changed from “not less than two to not more than seven at large” to “not less than three to not more than seven,” with a.proviso that in cities of more than fifty thousand it should consist of not less than two nor more than seven members at large.and not more than twelve members from subdistricts. Cities of more than fifty thousand are thus brought within the proviso, whereas in the former act cities of less than fifty' thousand were brought within the proviso. It is further provided in the act as follows: “Provided further that whenever the number of members of the board of education in the school districts of cities which at the last or-any subsequent federal census may have a population of more than fifty thousand persons is changed under the provisions of this act, then such board of education' shall consist of not less than three members nor more than seven members elected at large by the qualified electors of such city school district.” The effect of this act was to change the board of education in Cincinnati and not in the other four cities in the same class. It deprived the city of Cincinnati from having in its board of education any members from subdistricts, and required the board to have at least three members at large instead of two members at large, which the other cities might have, and which the city of Dayton-now has. The act, therefore, does not operate uniformly throughout the state in cities within the same class, and the uniformity is destroyed by force of the terms of the statute, and not by the discretion lodged in the cities themselves. . Nor does this act bring Cincinnati within the provisions of the statute. applicable to' cities under fifty thousand persons — for the board created by this act .contains members at large who. were not elected by [217] the qualified electors ;of the city at large, but members.at large who were elected from subdistricts and who became members at large by being chosen by lot. The result is that this act applies only to the city of' Cincinnati. That it was intended by the legislature to apply only to the* city of Cincinnati is certain by the terms of .the act when considered in connection with the facts that existed at the time in the' different cities, of the state. If there eould possibly be any question as to this, it is quickly dispelled by reading the house and senate journals at the time of the-passage of the act. Having arrived at this conclusion, little else need be said; nothing byway of argument — for it is now settled law of this state that a law of" this character is a law of a general nature and must have a uniform operation throughout the state, as required by Art. 2, See. 26 of the constitution. The Supreme Court of the state having so frequently declared such attempts to violate this wise.provision of the constitution to be invalid, it seems somewhat strange that this law was enacted. It is urged that the office of president of the board of education is. not a public office, and therefore Sec. 8 Rev. Stat., which provides that any one holding an office or public trust shall continue therein until his.-, successor is elected or appointed- or qualified, does not apply to the relator, his term of office having expired January 1, 1909. We think, however, that the office of president of the board of education is an office coming under this section. Under Secs. 3974, 3980, 3982, 3983 and 3984, the president performs other duties besides acting as, presiding officer at the meetings of the board, and by virtue of his office he performs for the state the important office of executing deeds for real estate, and being the custodian of the bond of the clerk. It would-seem to be an office under the holding of the Supreme Court in the case of' State v. Anderson, 45 Ohio St. 196 [12 N. E. Rep. 196]. It is further urged that the relator has estopped himself by his conduct in participating under the law in the reorganization of the board. We think this proposition- cannot be maintained. Mt. Vernon v. State, 71 Ohio St. 428 [73 N. E. Rep. 515; 104 Am. St. Rep. 783], and the leading case of Turnipseed v. Hudson, 50 Miss. 429 [19 Am. Rep. 15]. It is unfortunate, to say the least, that the affairs of this important. board should be placed in this confused condition, and, while we regret it, it is not within our judicial power to prevent it. It is urged that if the law of 1908 is unconstitutional the law of' 1904 is also unconstitutional, but we are not inclined to hold 'that the law of 1904 is unconstitutional. The law is general in character, and, so far • [218] as the terms of the law are concerned, operates uniformly throughout the state. The discretion lodged in the cities as to the number of the members' constituting.' the board, does not’ destroy the uniformity of its operation. If we are correct in our conclusions, it follows that the relator is entitled to the office.