#### Buckman, Auditor, *v.*The State, ex rel. Board of Education.

*Village school district*— Vote *of electors not necessary to create, when*— Section *3888, Revised StaUites, 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 O. 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 dev of April, 1909, at 10 o’clock A. m. On April 8, 1909, the defendant, Mark D. Buckman. bv way of showing cause why he had not complied with *172the 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 sub-school districts Nos. 4 and 12 in Coventry township in said county, was, by proceedings duly had under the provisions of Sections 1561 *a-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*173poses, after the state funds were exhausted, at *6y2*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-day of 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*174trict 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 5 th 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 *175by 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 O. 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 *176having in the district thus formed a total tax valuation of not less than one hundred thousand dollars shall constitute a village school district, provided that 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, with a tax valuation of less than one hundred thousand dollars, shall not constitute a village school district; provided at any general election the proposition to dissolve or organize such village school district be submitted by the board of education to the electors of such village and be so determined by a majority vote of such electors.” It is the contention of counsel for defendant in error that the village of Kenmore upon its incorporation did not thereby, by force of the provisions of the above 'statute, become at once, or at all, a village school district, but that in order to create or establish such district, of the territory within the municipality, it is necessary that the proposition to organize such village school district be first submitted to the electors of the village and be favorably determined by a majority vote of such electors. We are of opinion that neither the grammatical construction, nor proper interpretation of the language employed in the above statute, leads to the conclusion for which counsel for defendant in error contend. A consideration of the history and previous legislation upon the subject of the reorganization and maintenance of our common schools, discloses that from 1880 to 1906 it was the policy of the state, so declared to be by express statutory *177enactment, that every incorporated village within the state, together with the. territory thereto attached for school purposes, should constitute a village school district, without regard to the'tax valuation of the property within the district so formed, and without submitting to a vote of the electors of such village the question of establishing such village district. Hence in the interpretation of the statute here involved, it must be presumed that the legislature did not intend by its enactment, to modify or change the prior law and this settled policy, except in so far as it has therein declared such intention either in express terms or by unmistakable implication. While Section 3888, Revised Statutes, as amended April 2, 1906, is clumsily worded, and in consequence its meaning somewhat involved and obscure, nevertheless, when we consider the provisions of the statute sought to be amended and the character of the amendment actually made, we must conclude that the purpose of the legislature in adopting and passing said amendment was to classify and divide village school districts into two classes, the one to be composed of incorporated villages having within the district formed a total tax valuation of not less than one hundred thousand dollars, the other to be composed of incorporated villages having within the district a tax valuation of less than one hundred thousand dollars, and to provide that villages of the first class above named, either then existing or thereafter created, should each constitute and be a village school district, no voté of the electors of such village being required or permitted on the question of the organization or establishment of *178said district. It doubtless being within the contemplation of the law making body that an incorporated village with a tax duplicate of not less than one hundred thousand dollars, could well provide for the proper support and maintenance of its schools and should therefore, in every instance constitute and be a village school district, and having made and adopted such classification it intended, we think, to therein and thereby further provide and enact that incorporated villages of the second class with a tax duplicate of less than one hundred thousand dollars should not thereafter become, or if then existing be compelled to remain village school districts, unless so determined by a majority vote of the electors of such village district. If this be not the proper interpretation of this statute then the classification therein made by the legislature is a vain and useless thing, for what could it avail to make a classification based upon the tax valuation of the property within the incorporated village and the territory attached thereto for school purposes, if in all cases and in every instance, without regard to such classification, an election is required to determine whether said district shall constitute or be a village school district, yet such result must necessarily follow if we adopt the construction of this statute claimed for it by counsel for defendant in error. The object of judicial investigation in the construction of a statute is to ascertain and give effect to the intent of the law making body which enacted it, and the mere literal construction of a statute ought not to prevail, if apparently opposed to the intention of the legislature enacting it, *179unless the language employed therein is so plain and unambiguous as to imperatively require it. In Lewis’ Sutherland Statutory Construction, Section 376, the rule is stated as follows: “While the intention of the legislature must be ascertained from the words used to express it, the manifest reason and the obvious purpose of the law should not be sacrificed to a literal interpretation of such words. Words or clauses may be enlarged or restricted to effectuate the intention or to harmonize them with other expressed provisions. Where general language construed in a broad sense would lead to absurdity it may be restrained. The particular inquiry is not what is the abstract force of the words or what they may comprehend, but in what sense they were intended to be used as they are found in the act. The sense in which they were intended to be used furnishes the rule of interpretation, and this is to be collected from the context; and a narrower or more extended meaning is to be given according to the intention thus indicated.” It is the claim of counsel for defendant in error in the present case, that the last proviso found in'Section 3888, Revised Statutes, to-wit: “provided at any general election the proposition to dissolve or organize such village school district be submitted by the board of education to the electors of such village and be so determined by a majority vote of such electors” extends and applies to the whole section, and is not to be limited or confined to the paragraph "or clause that immediately precedes it, which provides, “that each incorporated village now existing or hereafter created together with the territory attached *180to it for school purposes, and excluding the territory within its corporate limits detached for school purposes, with a tax valuation of less than one hundred thousand dollars, shall not constitute a village school district.” To this claim of counsel we cannot assent, but on the contrary are clearly of opinion that the position of this proviso aiid the language therein employed sufficiently denote that it was the purpose, meaning and intent of the legislature that such proviso should apply only to the villages mentioned in the paragraph immediately preceding it, namely, “incorporated villages having a tax valuation of less than one hundred thousand dollars.” As a general rule, unless the contrary intention plainly appears, a proviso is to be construed with reference to the immediately preceding paragraph to which it is attached, and qualifies or limits only the part or paragraph to which it is appended. We think the proviso in question here must be thus construed and limited, apd that the words “such village school district,” found therein, should be construed and held to apply only to village districts having a tax valuation of less than one hundred thousand dollars. This construction recognizes the classification of village districts made by the general assembly and harmonizes and gives effect to each and all of the provisions of the statute without doing violence to any of its terms' such therefore, we think, should be held to be its proper construction.

*Judgment reversed.*

Summers, Spear and Shauck, JJ., concur.