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ATTORNEY GENERAL

County Boards of Education Have no Authority to Make Expenditures Out of the County Board of Education Fund for a Moving Picture Machine or Other Supplies to Aid the County Superintendent in His Official Supervisory Work.

No. 1004 (Opinion Dated November 10, 1915.) Hon. E. E. Lindsay, Prosecuting Attorney, New Philadelphia, Ohio. Dear Sir: I have your letter under date of November 4, 1915, which is as follows:

"The school code seems to be silent upon the question of, to what extent county boards of education may purchase supplies for the county superintendent.

"Has a county board of education the implied authority to purchase for the county superintendent any and all supplies which may be aids in his official supervisory work, limited of course by funds on hand applicable to such purpose? If so, does that authority extend to their purchasing a moving picture machine for the use of the county superintendent of schools, in his travels over the county, to be used for the purpose of instructing the pupils and patrons along his line of work?

"It seems to me the county board has this implied authority, if it deems it necessary and expedient so to do, but I do not feel at liberty to so advise them without first having your opinion."

I do not deem it necessary to quote the various provisions of the statutes of the so-called new school code relating to the election and qualification of the members of the county board of education, the organization of said board, its powers and duties, the election of the county superintendent, his powers and duties, and the establishment of the county board of education fund.

It is sufficient to observe that the county board of education, in the organization of the schools of the county school district, has power to change district lines and to transfer territory from one school district to another within said county school district, and to supervise and control the schools of said district.

In the exercise of its supervisory power, said county board is required to publish, with the advice of the county superintendent

appointed by it under authority of Section 4744 G. C., 104 O. L., 142, a minimum course of study which shall be a guide to local boards of education in prescribing the courses of study for the schools under their control, and said county board may publish different courses of study for village and rural school districts. (See Section 4737 G. C., 104 O. L., 140.)

Under provision of said Section 4744 G. C., the county superintendent is made the executive officer of the county board of education and is required to attend all meetings of said board for the purpose of informing the members thereof of the needs of the schools of the county school district and of advising said members so that they may, from time to time, take such action as will further the best interests of the schools.

It is the further duty of the county superintendent, acting under the direction of the county board of education and with the assistance of the district superintendents elected under authority of and in the manner provided by Section 4739 G. C., as amended in 104 O. L., 140, to carry into effect the orders, rules and regulations of the county board of education.

However, the statutes nowhere provide that the county board of education or the county superintendent, acting as the executive officer of said board, may purchase books, apparatus, equipment or supplies of any kind for the use of the schools of the county school district, and pay for the same out of the county board of education fund.

I find upon investigation that the bureau of inspection and supervision of public offices, in a letter to Mr. Charles Barthelmeh, your county superintendent of schools, under date of September 14, 1915, advised that the county board of education acts simply in a supervisory capacity and that it has no legal power whatever to furnish anything for the schools of the county school district. Mr. Barthelmeh was further advised by the bureau that the county board may purchase such supplies, stationery, etc., as may be needed in the office of the board and county superintendent, who is the clerk of the board, but that the statutes nowhere authorize anything to be furnished to the schools under the supervision of said county board from the county board of education fund, and that supplies needed by a school in any local district should be paid for out of the funds of such district.

The question raised by Mr. Barthelmeh was practically the same as the one now presented by you and I am of the opinion that

the ruling made by the bureau, in answer to said question, is correct.

Said ruling, in so far as it applies to the purchase of supplies, stationery, etc., for the office of the county superintendent, is based on opinion No. 144 of this department, rendered to Hon. A. L. Duff, Prosecuting Attorney of Ottawa county, under date of March 17, 1915, in which it was held that bills for stationery, telephone services and other expenses incident to the clerical work of the office of the county superintendent may, when approved by the county board of education, be paid out of the county board of education fund on the warrant of the county auditor.

While Section 4744-3 of the General Code, as amended in 104 O. L., 143, was again amended in 106 O. L., 396, so as to provide for a contingent as well as a tuition fund in the "county board of education fund," I am of the opinion that, in the absence of any provision of the statutes authorizing an expenditure from said contingent fund for the purchase of supplies referred to in your first question, your county board has no implied authority to make such expenditure, and it follows that said county board has no implied authority to purchase a moving picture machine to be used by the county superintendent for the purposes mentioned in your second question and pay for the same out of said contingent fund.'

In keeping with my former holding, I am of the opinion, in answer to both of the questions submitted by you, that the authority of the county board of education to purchase supplies for the county superintendent and pay for the same out of the county board of education fund must be limited to those items mentioned in the aforesaid opinion, and that said county board is without authority to make expenditures out of said county board of edu cation fund for the purposes mentioned in your inquiry.

A Building for a County Children's Home is not "Provided" as Required by Section 3081, General Code, Until It Is Equipped and Furnished Ready for Occupancy-The Appointment of Trustees for Such a Home Before Said Building Is Provided Is Void.

No. 986—(Opinion Dated October 29, 1915.)

Hon. Charles L. Bermont, Prosecuting Attorney, Mt. Vernon, Ohio. Dear Sir: I have your letter of October 26 as follows:

"On August 23, 1915, the commissioners of Knox county appointed a board of trustees for the new county children's home, under the provisions of Sec. 3081 G. C.

"At the time this appointment was made it was thought that two Democrats and two Republicans were being appointed, but it was later ascertained that three of them were from the same political party.

"On September 20, 1915, the board of county commisioners changed, two old members retiring, which also changed the politics of the board.

"A short time after the new board of commissioners took office, one of the appointed trustees, about whose politics there was some question, came to the commissioners and requested that he be relieved from further service upon said board.

"At the time, August 23, this board of trustees was appointed the children's home was not ready to turn over to them and probably will not be ready before November 15, 1915. The building itself was completed but it was not furnished ready for occupancy.

"The board of county commissioners as now constituted is insisting upon appointing an entire new board of trustees on the ground that the action of the former board of commissioners was premature and further that because three of the members of the board of trustees belonged to the same political party, that the appointment of the whole board would be void.

"I therefore desire your opinion upon the question as to whether the appointment by the former board of county commissioners was made before it should be and therefore void and whether the mistake in selecting three from the same political party would render the action void."

Section 3081 of the General Code, to which you refer in your letter, provides in part as follows:

"When the necessary site and buildings are provided by the county, the commissioners shall appoint a board of four trustees, as follows: One for one year, one for two years, one for three years, and one for four years, from the first Monday of March thereafter. Not more than two of such trustees shall be of the same political party."

From your statements it appears that your board of county commissioners on August 23, 1915, under the provisions of the foregoing section, appointed a board of trustees for your children's home, which said home will not be ready for occupancy before November 15, 1915.

It further appears that on September 20, 1915, two members of the board making said appointments aforesaid retired from office and were succeeded by two new members thereby changing the political complexion of said board, which fact affords very

potent reasons for the apparent haste shown in making said appointments.

You now inquire if the appointment of said trustees so made on August 23 is valid. The answer to your question depends entirely upon the fact whether or not the provisions of Section 3081, above quoted, required said appointments to be made prior to or on that date, or at any time before said two members retired from the board of county commissioners on September 20, 1915. The provisions of said section require the county commissioners to appoint a board of trustees when the necessary site and buildings are provided by the county. The requirement in this behalf is as definite and specific as it would be if the statute named and fixed a certain calendar date for said appointment. The commissioners, therefore, could not appoint before that date in anticipation of their leaving office nor could they make a valid appointment until the actual necessity for the appointment existed as provided by said law.

State ex rel. vs. Sullivan, 81 O. S., 79.

State ex rel. vs. Ernston, 14 C. C., 614.

The difficulty in this matter is not so much to determine upon what date said appointment shall be made as it is to determine when the proper conditions exist which under the statute aforesaid fix that date. Manifestly the providing of a site and buildings, as defined in Section 3081, supra, means more than procuring a plat of land upon which stands a building with bare walls and empty rooms. It means a site upon which stands a structure furnished and equipped for the care and entertainment of the unfortunate waifs for whom it is to be a home.

It was held in an opinion to you under date of June 16, 1915, that it was the duty of your board of county commissioners to furnish and equip the home in question with furniture. I desire now to make it plain that the building is not "provided" as required by Section 3081, supra, until it is equipped and furnished and ready for use and occupancy.

From your statements it appears that at this time said home. is not ready for occupancy and will not be until about November 15, 1915. No building, therefore, as yet has been provided as required by Section 3081, supra. No building having been provided, the appointment of trustees even at this time is not required by the provisions of said section and the appointments made on August 23, 1915 were made wholly without warrant or authority of

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