primary proof of title to the office is dispensed with in such cases, is mentioned by Mr. Greenleaf, as constituting an exception to the general rule excluding secondary evidence, and as proceeding upon 'strong presumption arising from the undisturbed exercise of a public office, that the appointment of it is valid.'"

In the case of Carter, paymaster, vs. Sympson, S. B. Monroe's Kentucky reports, page 155, the court held:

"The rule rejecting secondary evidence, is subject to some exceptions, arising either out of the nature of the facts to be proved, or from a regard to public convenience. It is not, in general, necessary to prove the written appointments of public officers. All who are proved to have acted as such, are presumed to have been duly appointed to the office until the contrary appears. The undisturbed exercise of a public office, creates a strong presumption, that the appointment to it is valid; and where, as in the present instance, the office is held for the benefit of others, the acquiescence of those having an interest in its proper administration, fortifies this presumption. (Greenleaf on Evidence, pages 94 and 104.)"

In the case of Callison vs. Hedrick, 15 Grattan's reports, (Va.) page 244, it was held in the first branch of the syllabus as follows: "1. In general it is not necessary to prove the written appointments of public officers. That one has acted as such officer and been recognized by the public as such, is sufficient evidence that he has been duly appointed until the contrary appears. And the case is still stronger where the official character has been recognized by the appointing power."

says:

In 29 Cyc., under the head of officers at page 1373 the author

"Where, however, the issue of a commission is not made by law a necessary part of the appointment, the appointment is complete when the choice of the appointing officer has been made, and no written evidence of the appointment is necessary. An oral appointment is valid. Indeed it has frequently been held that the fact that one has acted as an officer and has generally been recognized as such will create the presumption of a valid appointment. Such presumption may, however, be overcome by evidence to the contrary."

The doctrine just announced is liberally supported by authorities, from a few of which I have quoted above.

It would appear from the foregoing that Mr. Ralston, having assumed the office of president of the council, and the performance of the duties of that office not only being acquiesced in but in a

manner directed by the mayor, the action of the mayor could be construed to an appointment, especially in view of the fact that Mr. Ralston was not disturbed in the exercise of the office of president of the council but was allowed to continue in such office until at the time of the resignation of Mayor McLeish, when he assumed the office of mayor. Mr. Ralston assumed the office of mayor under the theory that as president of council he was rightly entitled to assume the office of mayor, under the provisions of Section 4274 of the General Code, which is as follows:

"In case of the death, resignation or removal of the mayor, the president of council shall become mayor and serve for the unexpired term, and until the successor is elected and qualified. Thereupon the president pro tem of council shall become president thereof, and shall have the same rights, duties and powers as his predecessor. The vacancy thus created in council shall be filled as other vacancies, and council shall elect another president pro tem."

Since assuming the office of mayor he has performed the duties incident thereto and under the facts and circumstances, there being no one at present who can assert a better title to the office, his status approaches, if, in fact, it does not partake entirely of, that of a de jure officer.

It is my opinion, therefore, that while the president pro tem of the council did not, as a matter of law, succeed to the office of president of the council upon the death of the incumbent of that office, the manner in which he succeeded to the office, the attendant facts and circumstances surrounding his occupancy of the office, the acquiescence and co-operation of the mayor with him in the performance of his duties as president of the council and as acting mayor constitute a condition of affairs amounting to an appointment of Lon W. Ralston as president of council, from which office he succeeded to the office of mayor, which office he is now filling, and his acts and the acts of his appointees are legal and valid.

In an opinion under date of August 31, 1914, to Honorable Irvine Dungan, city solicitor of Jackson, Ohio, by my predecessor, Mr. Hogan, the question of the filling of a vacancy in the office of president of council occurring through the resignation of the regularly elected incumbent was passed upon, and I am enclosing you a copy of that opinion for your information.

It is the Duty of Board of Education of a School District Upon Suspending a School to Transfer the Pupils to Another School or Schools-Any Suspended School MAY Be Re-established, Under Section 7730, G. C., Whenever the Number of Pupils (Section 7681, G. C., as Amended In 106 O. L., 489) Are Qualified to Attend the School In the Suspended District and Such Number Is Twelve or More-Re-establishment May Be Carried Out AT ANY TIME When Enrollment Shows the Required Number.

No. 827-(Opinion Dated September 15, 1915.)

Hon. Frank B. Grove, Prosecuting Attorney, Cadiz, Ohio. Dear Sir: I have you letter of September 4, in which you request my opinion as follows:

"I desire your opinion upon a question arising under Sec. 7730, G. C., as amended May 27, 1915, and effective Aug. 26, 1915.

"I shall not take the space to quote said section in full but only the parts necessary to state my question. Said section, in part, provides: 'When the average daily attendance of any school for the preceding year has been below ten, such school shall be suspended and the pupils transferred to another school or schools when directed to do so by the county board of education.'

"On August 16, 1915, our county board of education passed by a unanimous vote a resolution of which the following is

a copy:

"Resolved, that it is the will of the county board of education that the schools known as Oakdale and Beech Point in Athens Township, Lower Crab Orchard in Freeport Township, No. 2 in German Township, Creal's in North Township, and No. 7 in Shortcreek Township, be suspended and that the suspension shall be carried into effect after Section 7730 of the laws passed by the 81st General Assembly shall become effective."

"I am informed that the county board took such action on Aug. 16, in order that the local boards of the above named districts might know as soon as Sec. 7730 became effective on Aug. 26, that the county board wished such local boards to suspend the above named districts; and hence would know at the earliest opportunity what district schools would be directed to suspend by the county board.

"Notice of above resolution was sent to the local boards of above schools, and said named schools were suspended by the local boards, acting in pursuance to the direction of the county board given in above resolution. Such suspensions by the local boards were made after August 26, 1915.

'Provided, however, that any suspended school as herein provided may be re-established by the suspending authority upon its own initiative, or upon a petition asking

for re-establishment, signed by a majority of the voters of the suspended district, at any time the school enrollment of the said suspended district shows twelve or more pupils of lawful school age.'

"Certain of said schools now contend that their districts now contain 12 or more pupils of lawful school age, hence the following questions arise:

"1. Under the conditions hereinbefore stated, which is the 'suspending authority,' as stated in 7730, the county board of education or the respective local district boards?

"2. Was the aforesaid resolution, which was adopted Aug. 16, effective under 7730 as a direction to said respective local boards to suspend said schools after August 26, the date when said amended section went into effect?

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"3. What is the proper construction of the phrase in above section, 'school enrollment of lawful school age.' Does such language mean that before said schools may be reestablished by the suspending authority that there shall be 12 or more pupils in said district between the compulsory school ages of 8 to 16, or does it mean between the ages of 6 and 21 How would such 'school enrollment' be determined by the reestablishing authority in order that they may know with certainty when said district contained 12 or more pupils in accordance with the provisions of above section?

"4. If it be shown that any of said suspended districts now contains 12 or more pupils of lawful school age, may the suspending authority immediately re-establish such school and hire a teacher for the coming year, 1915-16?"

Your first question has been answered in opinion No. 799 of this department rendered to Hon. C. O. McGonagle, prosecuting attorney of Morgan county, under date of September 7, 1915. A copy of said opinion is enclosed.

This opinion holds that the local board of education of the school district is the "suspending authority" referred to in the latter part of Section 7730 G. C., as amended in 106 O. L., 398.

While the resolution of the county board of education, a copy of which is set forth in your letter, was passed prior to August 26, 1915, the date when Section 7730 G. C., as amended in 106 O. L., became effective, I note that said resolution was adopted by said county board after the passage of the act of the General Assembly amending said section and in contemplation of the probable going into effect of said amendment. Said resolution provides that the suspension shall be carried into effect after said amendment shall become effective. The action of the local boards, required by provision of said section as amended, having been taken subsequent to said date of August 26, 1915, I am of the opinion, in answer to

your second question, that the action of the county board, taken in connection with the action of the local boards, was a substantial compliance with the requirements of said amended section and that said proceedings are therefore legal.

Your third question calls for a construction of the phrase “at any time the school enrollment of the said suspended district shows twelve or more pupils of lawful school age.

Under the above provision of the statute it is the duty of the board of education of a school district, upon suspending a school, to transfer the pupils to another school or schools.

Replying to your third question I am of the opinion that the above phrase means, when taken in connection with the latter provision of Section 7730 G. C., as quoted by you, that any suspended school may be re-established in the manner provided in said section whenever the number of pupils, who under the provisions of Section 7681 G. C., as amended in 106 O. L., 489, are qualified to attend the school in the suspended district when the same is reestablished and who are enrolled in another school or schools to which they have been transferred by order of the board of education, is twelve or more.

The right of pupils having the aforesaid qualifications to attend another school or schools under said order of transfer is not limited to pupils between the ages of eight and fifteen years if males, and between the ages of eight and sixteen years if females, who by the provisions of Section 7763 G. C., as amended in 104 O. L., 232, must attend either a public, private or parochial school. It follows therefore that if said board of education finds that the number of pupils within said suspended district, having the qualifications as to age and residence provided by Section 7681 G. C., is twelve or more as shown by the enrollment of said pupils in the other school or schools to which they have been transferred, said board may proceed in the manner provided by Section 7730 G. C., as amended to re-establish a school in said district.

Your fourth question is answered by that part of Section 7730 G. C., as amended and as above quoted, which provides that a suspended school may be re-established at any time the school enrollment shows the required number of pupils.