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"Our county board of education at the beginning of the current school year entered into a contract for the transportation of certain children of school age living more than two miles from the nearest school. This contract was not made until after the local board had refused to haul such children to school and now when there is one month's pay due the persons who had been hauling these children, the local board refuses to take any steps toward the payment of the sums due for transportation and the question is now up to the county board as to whether they have the right to borrow money, not having any funds on hand for that purpose, to pay the persons whom they have employed to transport these children, or whether they should bring suit in mandamus to compel the local board to pay these charges.

“The latter part of Section 7731 provides that:

“ '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."

"Your department has already held, in opinion No. 1226 and in a letter to me of July 15, that a board of education may borrow money under Section 5656 General Code, to pay for the transportation of pupils, but the opinion in that case related only to the right of a rural district to borrow money for that purpose. It seems to me that a county board would have the right to borrow money under Section 5656 G. C., to carry out a contract which the law made it obligatory upon such board to make and, particularly so, since a person who has been hired to transport children to school has been held by your department to be an employe of a board of education.'"

In case the board of education of a rural or village school district neglects or refuses to provide transportation for pupils living more than two miles from the nearest school in such rural or village district, as required by the first part of Section 7731 G. C., as amended in 104 0. L., 140, which provides that:

"In all rural and village school districts where pupils live more than two miles from the nearest school the board of education shall provide transportation for such pupils to and from such school.'

the above provision of said statute, as quoted by you, makes it the duty of the board of education of the county school district to provide such transportation and charge the cost thereof against the local school district.

From your statement of facts it appears that after the local board of education of one of the school districts within your county school district refused to provide transportation for those pupils residing in said school district entitled to such transportation under provision of the first part of said Section 7731 G. C., the county board of education entered into a contract for the transportation of said pupils and that said local board of education now refuses to take any steps toward the payment to the person or persons furnishing such transportation of the amount due for the first month according to the terms of said contract.

You inquire whether said county board of education may, under authority of Section 5656 G. C., borrow money for this purpose.

The only fund under the control of the county board of education is the “county board of education fund,” established under authority of Section 4744-3 G. C., as found in 104 O. L., 143, which section prior to its amendment in 106 O. L., 399 provides as follows:

"The county auditor when making his semi-annual apportionment of the school funds to the various village and rural school districts shall retain the amounts necessary to pay such portion of the salaries of the county and district superintendents as may be certified by the county board. Such amount shall be placed in a separate fund to be known as the 'county board of education fund.' The county board of education shall certify under oath to the state auditor the amount due from the state as its share of the salaries of the county and district superintendents o fsuch county school district for the next six months. Upon receipt by the state auditor of such certificate, he shall draw his warrant upon the state treasurer in favor of the county treasurer for the required amount, which shall be placed by the county auditor in the county board of education fund."

The only change made in said statute as amended in 106 0. L., is to make it the duty of the county auditor, when making his semi-annual apportionment of the school funds to the various village and rural school districts, to retain, in addition to the amount necessary to pay such portion of the salaries of the county and district superintendents as may be certified by the county board, the amount necessary for the contingent expense of the county board of education as certified by said board to said county auditor.

That part of said county board of education fund retained by the county auditor out of the school funds of the local school districts for the payment of that portion of the salaries of the county

and district superintendents, as certified by the county board of education to said county auditor, may only be applied to that purpose.

The contingent fund of said county board of education fund, as above established, may be increased by the surplus transferred from the dog tax fund under provision of Section 5653 G. C., as found in 104 0. L., 145, and by fees collected from applicants for examination by the board of county school examiners, paid into the county treasury by the clerk of said board and set apart by the county auditor to the credit of the county board of education fund under provision of Section 7820 G. C., as amended in 104 0. L. 104.

If, therefore, there was money in the contingent fund of the county board of education fund available for the purpose mentioned in your inquiry, I am of the opinion that said money could be applied by the county board of education to the discharge of the obligation of said county board according to the terms of its contract with the person or persons furnishing said transportation. It would still be the duty of said county board, however, to charge the amount so expended against the local board of education and require said local board to reimburse the county board of education fund in said amount.

The county board of education has no authority in law to levy a tax for any purpose. The only sources of the county board of education fund as provided by statute are those above set forth.

I am of the opinion, therefore, in answer to your question, that the county board of education may not borrow money under provision of Section 5656 G. C., for the purpose of paying for the transportation of the pupils, referred to in your inquiry, according to the terms of the aforesaid contract.

In opinion No. 612 of this department, rendered to you under date of July 15, 1915, it was held that a contract for furnishing transportation is a contract of employment within the meaning of the latter part of Section 5661 G. C., and is therefore exempt from the provision of Section 5660 G. C., which requires the filing of a certificate of available funds by a board of education as a condition precedent to the making of a contract, and that the board of education of a rural school district may borrow money under authority of Section 5656 G. C., to pay the charge against said district, made by the county board of education, in case said county board furnishes transportation to pupils of said district as required by Section 7731 G. C., as amended in 104 0. L., 140, when said local board fails or neglects to furnish such transportation, or to pay for services actually rendered in a contract of employment for this purpose.

In keeping with my former holding I am of the opinion that it would clearly be the duty of the local board of education of the school district, referred to in your inquiry, to reimburse the county board of education fund of your county school district in an amount equal to the sum which the county board would expend from month to month out of its contingent fund for the transportation of the pupils residing in said local school district and entitled to such transportation under the above provision of Section 7731 G. C., according to the terms of its contract with the person or persons providing said transportation, if there were money in said fund available for said purpose.

Inasmuch as said county board has no money in said contingent fund available for said purpose, and may not borrow money for said purpose, I am of the opinion that said county board has authority, under provision of the latter part of said Section 7731 G. C., to demand from said local board of education payment of the amount now due under the terms of the aforesaid contract and if said local board has funds available for said purpose and refuses to make said payment, or if said local board is without available funds and refuses to borrow money, under authority of said Section 5656 G. C., for the purpose of providing the necessary fund to make such payment, said county board of education may, by an action in mandamus compel said local board to take such action as may be necessary to make said payment. The Sanitary Engineer Provided for in Section 6602-1, General

Code (103 0. L., 734), Cannot be Paid Out of County Funds and Subsequently Reimbursed–The Construction of a Sewer by County Commissioners Under Act of 103 0. L., 734, (6602-1 to 6602-9e, G. C.), Cannot be paid for as the Work Progresses by Certificates of Indebtedness. Amount to be paid by County Must be in Treasury, Not Otherwise Appropriated at Time Contract Is Entered Into (5660 G. C.)

No. 914—(Opinion Dated October 12, 1915.) Honorable Robert C. Patterson, Prosecuting Attorney, Dayton,

Ohio.

Dear Sir:-Under date of August 30, 1915, you submitted for my opinion the following:

"I desire an opinion from you upon the authority of the county commissioners to finance the construction of 1 sewer, under the act providing for the construction of sewers outside of municipalities, 103 7. L., 734.

“A petition for such an improvement has been filed in this county; and, under the provisions of the act, the first duty of the county commissioners is to employ a sanitary engineer for the preparations of plans, etc. The act provides for the paying of the engineer out of funds raised by asesssment upon property benefited, in anticipation of which money may be borrowed either upon bonds or certificates of indebtedness. Can such engineer be paid out of county funds, to be subsequently reimbursed from the money raised under the act, or niust the funds for the preliminary expenses be first raised as so provided? Can the construction of the improvement be paid for as the work progresses by certificates of indebtedness, authorized by Section 6 of the act, such certificates being issued to mature in a short time; and then, at the completion of the work, bonds be issued to cover the entire cost, including the taking up of the certificates ?

“Unless the engineer and preliminary work can be paid for either out of county funds to be reimbursed or by certificates of indebtedness to be afterwards taken up by bonds, I am unable to see how the improvement can be started, since the first requisite is the engineer and his plans. If the work can be financed along the line suggested in my second question, the improvement could be started as soon as the plans are prepared, and paid for as the work progresses; a saving of both time and interest on bonds."

The statute to which you refer, found in 103 0. L., 734, is entitled :

“An act authorizing the county commissioners of the several counties of the state for the benefit of public health, convenience, or welfare, to construct, maintain, repair and operate sewer improvements and sewage treatment works outside of municipalities, and to repeal certain sections of the General Code."

and the code numbers given thereto are Sections 6602-1 to 6602-9e,

Section 6602-1 G. C., provides that the county commissioners may, by resolution, lay out and establish one or more sewer districts within that portion of their respective counties, that lie within three miles of and outside of any incorporated municipality; and provides further that the county commissioners may employ a competent sanitary engineer for the purpose, and in counties of over 100,000 they may create an engineering department.

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