TO COMPEL PROVISION FOR CHILDREN OF SCHOOL AGE.

Court of Appeals for Tuscarawas County.

#### Nathaniel Siber et al v. State of Ohio, ex rel Frederick E. Hershey et al.

Decided, June 26, 1918.

*Schools*— tfecessary'Parties *to Action: in Mandamus*— To *Compel Provision of Proper School Advantages*— Evidence- *Required to Compel ■ Official Action. : ■ .*• ■ .......

1. Section- 7731 makes the county board of education the- real party .. defendant in an action to compel the conveyance of pupils of-school age residing therein to some other, school within the rural school district, and failure to make said county board a party defendant 'leaves' the petition open to 'demurrer. ' '

2. Furthermore the absence of 'any evidence of notice to'the county board, or of knowledge on its part, of refusal by the' township board to. convey the pupils in question to some school in said district, is fatal to an action in mandamus to compel provision of such service, under the rule that in a proceeding to compel an officer to do.an act'which it is claimed tie íaw enjoins upon him the existence must be shown Of all facts necessary to put him in' default.

*É. E. Lindsay,*Prosecuting Attorney, and *E. O. Seikel,*for plaintiffs in error.

*G. L. Croneiaugh,*contra.

Houck, J.

The defendants in error here were the relators in the common pleas court.

The suit was one in mandamus, in which it was sought to compel the defendants below, the plaintiffs in error here, as members of the board of education of Dover township rural school district of Tuscarawas county, Ohio, to re-establish what was formerly known as “Sub-district School No. 12” or to convey the pupils of school age residing therein to some other school within said rural school district.

*47A demurrer was filed to the petition, stating four grounds:

1. That the facts stated in the petition were insufficient in law.

2. Defect of parties plaintiff.

3. Defect of parties defendant.

4. That plaintiffs had no legal authority to .bring suit.

The trial judge overruled said demurrer and exceptions were-taken to same. Answer was filed, which in substance, was a general denial.

Trial was had and the petition was dismissed as to the question of re-establishing said reputed sub-district School No. 12, but judgment was entered for plaintiffs, allowing a peremptory writ of mandamus against the members of the board of education of the Dover township rural school district, ordering and directing said board of education to convey said pupils of school age to the nearest school in said Dover township rural school district.

We have carefully read the testimony in the case, as contained in the .bill of exceptions, and have made an examination of the record here presented for the purpose of determining as to whether or not there is such error prejudicial to the rights of plaintiffs in error as would .authorize a reversal of the judgment.

In our opinion the judgment of the common pleas court should be reversed for two reasons:

1. There is a misjoinder of parties defendant. The real party defendant should be the county board of education of Tuscarawas county, Ohio. We reach this conclusion because of the provisions of Section 7731, General Code, as found in Vol. 170, page 625, Ohio Laws, which reads:

> it* * * When local boards of education neglect or refuse to provide transportation for pupils, the county board of education shall provide such transportation and the cost thereof shall be charged .against the local school district. When the county .board of education certifies to the county auditor the amount paid for such transportation, the county auditor shall transfer such amount from the funds due the said board of education to the county board of education fund.”

*48The undisputed evidence is that a demand was made upon the board of education of Dover township rural school district, but none was made upon the county board of education, and there is an entire absence of proof, showing or tending to show, that the county board of education had any knowledge whatever of the failure or refusal of said board of education of Dover township rural school district to convey the pupils in question to some.school in said district. Applying the statutory law just quoted to these facts we feel the conclusion thus reached is sound.

2. We hold the rule is well established that in a proceeding by mandamus to compel an officer to do an act which it is claimed the law .enjoins upon him, the existence of all the facts necessary to put him'in default must be shown.

Testing the evidence in this case by the rule of law thus laid down, we find that it does not measure up to it, and, therefore, the trial judge was in error in entering the judgment in the present ease. The errors referred to being prejudicial to the rights of the plaintiffs in error, judgment of the common pleas court must be reversed.

Judgment reversed .and case remanded for further proceedings according to law.

Powell, J., and Shields, J., concur.