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State, ex rel., v. Hall.

[13 Ohio

sufficiency of the records kept by a county board of education.

The further question is raised that an equitable division of the school funds and indebtedness of the transferred territory is a prerequisite to the transfer of that territory. Section 4692 provides that 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. This language does not lead to the conclusion that this division of funds and indebtedness is a condition precedent to the transfer of the territory.

The provisions of Section 4692, which we find to be the operating statute in this case, are as follows: "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."

The map was filed, the posting of the notice was made, no remonstrance was filed, and the resolution of the transfer was passed, thus completing the transfer. But if it was within the contemplation of

App.]

State, ex rel., v. Hall.

the statute that there should have been a contemporaneous adjustment of the funds and indebtedness, the provisions to that end are not mandatory, but only directory. (Johann v. Board of Education of Milton Township, 26 C. C., N. S., 209.) The failure, therefore, to make a contemporaneous distribution of the funds and the indebtedness does not invalidate the transfer.

It is further urged that the transfer works a discontinuance of the centralization of the Jefferson township rural school district within three years, thereby violating the provisions of Section 4727, General Code. The case of State, ex rel. Snapp, v. Goul et al., Board of Education of Champaign County, 97 Ohio St., 259, is cited in support of this proposition. We do not think that case in point. In that case there was a petition filed within three years to transfer territory from the centralized district, which in its effect would result in a discontinuance of the centralization. The centralization of the schools, and the changing of the boundary, which brings into the centralized district additional taxable property, could in no way have a decentralizing effect on the schools. It simply adds additional territory, which in the judgment of the county board. of education is for the best interests of the schools. The transfer does no violence to Section 4727 of the Code.

We find on the issues in favor of the defendants and the petition will be dismissed.

Judgment for defendants, and petition dismissed.

SHOHL, P. J., HAMILTON and CUSHING, JJ., con

cur.

Bellaire, ex rel., v. Ferry Co.

[13 Ohio

CITY OF BELLAIRE, EX REL. SEDGWICK, ETC., v. BELLAIRE, BENWOOD & WHEELING FERRY Co.

Municipal corporations-Ferry rates on Ohio river- Ordinance rates from opposite shore invalid - Reduced fares valid, when -Workhand and shopping tickets.

1. An Ohio municipality cannot by ordinance fix the rate of fare for ferriage from the West Virginia side of the Ohio river to the Ohio side, and an ordinance of the city of Bellaire, Ohio, fixing the rate of ferriage fare from Wheeling and other points on the West Virginia side of the river to Bellaire and other points on the Ohio side, is void.

2. An ordinance fixing the price of "workhand" tickets at a lower rate than that charged for ordinary fares having been construed by the ferry company to apply to all persons alike, and not simply to a class, will not be held void as a discrimination in favor of a class, but the construction put upon it by the company will be adopted by the court.

(Decided May 15, 1920.)

APPEAL: Court of Appeals for Belmont county.

Mr. C. C. Sedgwick, city solicitor, for plaintiff. Messrs. Heinlein, Spriggs & James, for defendant.

METCALFE, J. (orally). The city of Bellaire is an Ohio municipal corporation and the defendant company is a West Virginia corporation engaged in the business of ferrying passengers and freight across the Ohio river. The action was brought in injunction by the city of Bellaire, on relation of C. C. Sedgwick, its solicitor, to restrain the defendant from charging certain rates of fare for carrying passengers and freight from the city of Bellaire, in Ohio, across the river to Benwood and Wheeling,

App.]

Bellaire, ex rel., v. Ferry Co.

West Virginia, and prohibiting said company from charging any rates except certain ones fixed by an ordinance of the city of Bellaire, passed in 1873 and amended in 1878.

Section 4 of that ordinance provides that "The ferrymen shall be entitled to charge the following compensation each way, namely * * *" A list of charges follows, which is concluded by the clause, "Workhand and shopping tickets, 12 for thirty cents." It is claimed that Section 4 of the ordinance is void for the reason that it fixes the fare both ways, and in that respect exceeds the power of an Ohio municipality to legislate. It is further claimed that the clause in the ordinance fixing the fare for workhand and shopping tickets is an illegal discrimination in favor of certain classes against all other classes. So these are the questions before this court at this time: First, whether or not the section of the ordinance fixing the rate of charges for ferriage across the Ohio river, from the West Virginia side to the Ohio side, is illegal; and, second, whether the so-called workhand and shopping ticket clause is a discrimination in favor of certain classes to the exclusion of others.

The right of a state bordering upon the Ohio river to legislate within reasonable bounds for the regulation of ferries and to provide against excessive charges is no doubt a proper exercise of legislative authority. Gloucester Ferry Co. v. Pennsylvania, 114 U. S., 196; Gibbons v. Ogden, 9 Wheat. (22 U. S.), 1; Wiggins Ferry Co. v. East St. Louis, 107 U. S., 365; Fanning v. Gregorie, 16 How. (57 U. S.), 524, and Chosen Freeholders of Hudson Co. v. State, 24 N. J. Law, 718.

Bellaire, ex rel., v. Ferry Co.

[13 Ohio

But can one state legislate the charge from another state on the opposite shore to its own shore? The right of a state on either side of the river to make necessary and proper legislation for the government of ferries must be exclusive, but exclusive only so far as the legislation is local. The legislation of one state cannot extend to and operate within the jurisdiction of another state having equal powers. West Virginia and Ohio have equal powers so far as the regulation of ferries is concerned, but neither can legislate for the other. If the power to fix the charge to West Virginia from Ohio exists, it is in the Ohio authorities, and, conversely, the power to fix the charge from West Virginia to Ohio is exclusive within the West Virginia jurisdiction, and any attempt by either to legislate the charge from the other side is extra-territorial and therefore void.

But it is urged that as West Virginia and Ohio have concurrent jurisdiction over the river, either may legislate upon a subject within the concurrent jurisdiction. That the two states might by concurrent action establish rates of charges both ways is not doubted, but such concurrent jurisdiction as the states have over the Ohio river is over the waters of the river, as they extend from shore to shore, and does not operate beyond the shore. Legislation by a state relating to navigation upon the river is one thing, regulation of the charge from shore to shore is entirely another. The fare has nothing to do with the conduct of the boats while on the river.

We are not called upon to decide in this case whether legislation by one state relating to the method of conducting navigation upon the waters

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