lowed by law for transporting prisoners to the penitentiary. The fee allowed by law for the transportation of prisoners to the penitentiary was eight cents a mile for the sheriff, five cents per mile for transporting each convict and six cents per mile for each guard; the number of guards to be employed to first receive the authority of the court, provided there was more than one guard for every two convicts transported.

In 81 O. L., 84, the compensation of the sheriff was changed as appears in Section 12385 G. C. supra. Section 12385 specifically states the compensation which is to be received by the sheriff and also the allowance to him for the service of each guard, but does not undertake to specify the number of guards that the sheriff might employ, whereas Section 13725 relative to the transportation of convicts to the penitentiary does specify that the sheriff may employ one guard for every two convicts transported, but upon authority of court a larger number might be employed. While I would not state that the language "to be allowed as in penitentiary cases" has reference solely to the number of guards that may be employed, since under the provisions of Section 13726 it is provided that:

"The warden of the penitentiary shall allow so much of the cost-bill and charges for transportation as is correct," and certify

and since under the provisions of Section 12385 the county commissioners are to allow the bill, nevertheless for all practical purposes the language 'to be allowed as in penitentiary cases" might be deemed to refer solely to the number of guards that may be employed. Under the provisions of Section 12385 the amount paid is to be paid on the allowance of the county commissioners in state cases and in cases of violation of ordinances on the order of the council of the municipality.

In Creating a New School District Under Authority of Section 4736, General Code (106 O. L. 397), the County Board of Education is Required to Give Written Notice to the Boards of Education of Districts Affected Thereby. Transfer of Territory So Made Will Not Take Effect Until Map Thereof is Filed With County Auditor, nor Until Notice Has Been Posted in Three Conspicuous Places in Districts Affected or Published in a Newspaper of General Circulation in the County, for Ten Days. Such Transfer Will Not Take Effect if Majority of Electors in Territory Transferred File a Remonstrance Within Thirty Days After the Filing of Such Map.

No. 1132-(Opinion Dated December 31, 1915.)

Hon. A. B. Underwood, Prosecuting Attorney, Medina, Ohio. Dear Sir: In your letter under date of December 13, you request my opinion as follows:

"In the creation of a new school district, under the last half of Section 4736 G. C., three questions have arisen upon which your opinion is desired, to-wit:

"1. What notice, if any, is required to be given to the school boards affected?

"2. What notice, if any, is required to be given to the people of the territory affected?

"3. Is the clause permitting a remonstrance, as provided for in the first half of Section 4736 G. C., intended to apply in case of the creation of a new school district under the second half of said section?"

Section 4736 G. C., as amended in 106 O. L., 397, provides:

"The county board of education shall arrange the school districts according to topography and population in order that the schools may be most easily accessible to the pupils, and shall file with the board or boards of education in the territory affected, a written notice of such proposed arrangement; which said arrangement shall be carried into effect as proposed unless, within thirty days after the filing of such notice with the board or boards of education, a majority of the qualified electors of the territory affected by such order of the county board, file a written remonstrance with the county board against the arrangement of school districts so proposed. The county board of education is hereby authorized to create a school district from one or more school districts or parts thereof. The county board of education is authorized to appoint a board of education for such newly created school district and direct an equitable division of the funds or indebtedness belonging to the newly created district. Members of the boards of education of the newly created district shall thereafter be elected

at the same time and in the same manner as the boards of education of the village and rural districts."

Under provision of said Section 4736 G. C., as amended in 104 O. L., 138, and as in force prior to the date when said section as amended in 106 Ohio Laws became effective, the county board of education had power to change district lines and to transfer territory from one rural or village school district to another.

The general assembly in 1915, by the same act in which it amended Section 4736 G. C., carried the above provision as well as the subsequent provisions of said statute, as found in 104 O. L., prescribing the conditions under which the aforesaid power might be exercised, into Section 4692 G. C. This section as amended in 106 O. L., 397, and as now in force, provides:

"The county board of education may transfer a part or all of a school district of the county school district to an adjoining district or districts of the county school district. Such transfer shall not take effect until a map is filed with the auditor of the county in which the transferred territory is situated, showing the boundaries of the territory transferred, and a notice of such proposed transfer has been posted in three conspicuous places in the district or districts proposed to be transferred, or printed in a paper of general circulation in said county, for ten days; nor shall such transfer take effect if a majority of the qualified electors residing in the territory to be transferred shall, within thirty days after the filing of such map, file with the county board of education a written remonstrance against such proposed transfer. If an entire district be transferred the board of education of such district is thereby abolished or if a member of the board of education lives in a part of a school district transferred the member becomes a non-resident of the school district from which he was transferred and ceases to be a member of such board of education. The legal title of the property of the board of education shall become vested in the board of education of the school district to which such territory is transferred. The county board of education is authorized to make an equitable division of the school funds of the transferred territory either in the treasury or in the course of collection. And also an equitable division of the indebtedness of the transferred territory."

It will be observed, however, that under provision of Section 4736 G. C., as amended in 106 O. L., and as now in force, the county board of education has power to arrange the school districts of the county school district according to topography and population in order that the schools may be most easily accessible to the pupils and as a condition precedent to the making of such an arrangement

said county board is required to file with the boards of education in the territory affected a written notice of such proposed arrangement and said arrangement shall be carried into effect as proposed unless, within thirty days after the filing of such notice with said boards of education, a majority of the qualified electors of the territory to be affected by the order of the county board file a written remonstrance with said county board against said proposed arrangement.

It is evident that in arranging school districts under authority of Section 4736 G. C., as amended, the county board must necessarily exercise the powers conferred upon it by the above provisions of Section 4692 G. C. The provisions of the two sections must therefore be read together. The legislature in amending Section 4736 G. C., as found in 106 Ohio Laws, extended the authority heretofore exercised by the county board under provisions of said section as amended in 104 Ohio Laws, by providing in the latter part of said section that "the county board of education is hereby authorized to create a school district from one or more school districts or parts thereof."

While it may be argued that inasmuch as the latter provision of said statute follows the provision requiring the county board of education as a condition precedent to the arrangement of the school districts of the county school district, to file with the board of education of the districts to be affected by changes in district lines and transfers of territory, written notice of such proposed arrangement, it is not intended that such notice and opportunity to the electors of such districts to file objections to such proposed arrangement shall be given by the county board of education in the exercise of the authority conferred by said latter provision, I think that inasmuch as the authority conferred by said latter provision is merely an extension of the authority conferred by the former provisions of said section, and in view of the provisions of both Section 4736 and Section 4692 of the General Code as amended in 106 Ohio Laws, requiring the giving of notice and the affording of an opportunity to the electors of the districts to be affected by changes proposed to be made under authority of said sections, as conditions precedent to the exercise of such authority, it cannot be said that the county board of education may create a new district from one or more school districts or parts thereof, and thus exercise the extreme power conferred by said latter provision of said Section 4736 G. C. without being required to give the notice to the boards of education of the districts to be affected by said proposed trans

fer of territory and without affording the opportunity to the electors of such districts to file a remonstrance against said proposed arrangement as provided for in the first part of said section.

I am of the opinion therefore in answer to your first question that, in the creating of a new school district under authority of the latter provision of said Section 4736, G. C., as amended in 106, O. L., 397, the county board of education is required, as a condition precedent to the exercise of such authority, to give written notice to the boards of education of the districts to be affected by such transfer of territory as required by provision of the first part of said section.

Replying to your second and third questions I am of the opinion that under provision of the first part of said Section 4736, G. C., as amended, taken in connection with the above provisions of Section 4692, G. C., said transfer of territory will not take effect until a map is filed with the auditor of the county in which the territory to be transferred is situated, showing the boundaries of the territory to be transferred, and until a notice of such proposed transfer has been posted in three conspicuous places in the district or districts proposed to be transferred, or printed in a paper of general circulation in said county for ten days, and that such transfer shall not take effect if a majority of the qualified electors residing in the territory to be transferred, shall, within thirty days after the filing of such map, file with the county board of education a written remonstrance against such proposed transfer.