author: By CASE, J.

text:
    MARTING, Plaintiff, v. GROFF et, Defendants.
    Common Pleas Court, Fayette County.
    No. 22505.
    Decided August 20, 1958.
   OPINION

By CASE, J.

ENTRY SUSTAINING MOTION OF THE BOARD OF EDUCATION OF THE MIAMI TRACE LOCAL SCHOOL DISTRICT

The Court, coming now to consider all of the allegations contained and set forth in the petition of the plaintiff, Sam B. Marting, filed herein on July 10, 1958, and all branches and grounds stated in the motion of the Board of Education of the Miami Trace Local School District, Fayette County, Ohio, filed herein on August 9, 1958, particularly those whereby said board of education has applied to this Court for certain orders, to-wit:—

“1. That the Board of Education of the Miami Trace Local School District, Fayette County, Ohio, be made a party defendant in this action, on the ground that it is the real party in interest and a necessary party to the determination of the action.

“2. That the Defendants, Taylor Groff, J. Herbert Perrill, Gordon Cowdery, Robert T. Owens and Richard S. Snyder, be dismissed as parties defendant, on the ground that they are not proper parties to this action.

“3. To strike the petition from the flies as a sham and frivolous pleading, raising no material questions and no real issue for the Court to decide, and not filed in good faith, but solely for the purpose of delay; and in the alternative to strike each separate cause of action' on the same ground.”

and, upon due consideration thereof, do find:

1. That plaintiff’s petition expressly states that the individual defendants named therein are members, officers and the clerk of the Board of Education of the Miami Trace Local School District, Fayette County, Ohio, which is a body corporate and politic;

2. That plaintiff’s petition is directed to and complaints about actions of the individually named defendants in their “capacities” as members, officers and clerk of said board of education “for the accomplishment of the issuance of bonds of the said Miami Trace School District in the amount of $1,652,500.00”;

3. That, by his petition herein, plaintiff is seeking to allege and maintain an action against the Board of Education of the Miami Trace Local School District which plaintiff admits in his petition to be a body corporate and politic;

4. That §3313.17 R. C., provides in part as follows:

“The board of education of each school district shall be a body politic and corporate, and, as such, capable of suing and being sued, * * *”

5. That, in Halliday et al v. Marchington, 44 Oh Ap 132, 14 Abs 56, 384 N. E. 698, the court of appeals held in part as follows:

“an action against a board of education must be brought against the board in its corporate capacity, and not against the individuals constituting the board.”

6. That the aforesaid rule of- law so pronounced, in Halliday et al v. Marchington, supra, has not been modified or reversed by the Supreme Court of Ohio;

7. That, by his petition herein, plaintiff is seeking to allege and maintain an action against the Board of Education of the Miami Trace Local School District of Fayette County, Ohio, and therefore this Court must apply the rule of law pronounced by said court of appeals in Halliday et al v. Marchington, supra;

8. That, upon applying said rule of law to the statements and admissions contained and set forth in plaintiff’s petition, the Board of Education of the Miami Trace Local School District' of Fayette County, Ohio, is the only necessary and proper party defendant to the within cause;

9. That branch (1) of the aforesaid motion, seeking an order of this Court to make the Board of Education of the Miami Trace Local School District, Fayette County, Ohio, a party defendant herein, is well made and should be sustained;

10. That branch (2) of the aforesaid motion, seeking an order of this Court to dismiss Taylor Groff, J. Herbert Perrill, Gordon Cowdery, Robert T. Owens and Richard S. Snyder as individual parties defendant herein is well made and should be sustained;

11. That, upon the authority hereinabove cited and set forth, this Court, upon its own motion, is compelled to find that Senath Thompson is not a proper party defendant to the within cause and that said Senath Thompson should be dismissed as an individual party defendant in this action;

12. That, upon due consideration of all the allegations contained in plaintiff’s petition, insofar as the same may be connected with and related to that portion thereof designated and entitled “FIRST CAUSE OF ACTION,” and giving thereto a liberal construction most favorable

■ to the plaintiff, by indulging every reasonable inference from said allegations, it clearly appears;

A. That said first cause of action is based merely upon plaintiff’s assertions that he “has reason to believe and does believe that the Defendants have failed to comply with the requirements of the Uniform Bond Act of Ohio”;

B. That what plaintiff alleges he believes is based in part upon an assertion that the clerk of said board of education refused to allow inspection of the boards’ official records; but plaintiff clearly failed to allege or state in any part of his petition the time, the place or the circumstances when, if any, he attempted to inspect said records;

C. That, by giving the most liberal construction to all of the allegations in his petition and indulging in every reasonable inference from the statements contained therein, it can not be reasonably inferred from the face of his petition that plaintiff made any attempt to inspect such public records as provided by law or was refused such inspection;

D. That, from the language used in his petition, the plaintiff has clearly stated what he believes but has intentionally avoided making any clear and concise statement of operative facts which could or would tend to show or establish when and how he made any attempt to inspect such records and was refused such inspection, or if he attempted to obtain any timely order from this or any court for a proper inspection of such record;

E. That the allegations expressly set forth in plaintiff’s first cause of action, and all other allegations contained in said petition which may be connected with or related thereto, are so replete with beliefs and conclusions on the part of the plaintiff and so devoid of operative facts and circumstances as to clearly show a design and intent on the part of the plaintiff to state a frivolous and sham cause of action;

F. That, for the reasons and upon the findings hereinabove set forth, this Court must find that branch (3) of said defendant’s motion to strike, insofar as it seeks to strike such separate cause of action from plaintiff’s petition, is well made as to said first cause of action plaintiff’s petition and should be sustained;

13. That, upon due consideration of all the allegations contained in plaintiff’s petition, insofar as the same may be connected with and related to that portion thereof designated and entitled “SECOND CAUSE OF ACTION,” and giving thereto a liberal construction most favorable to the plaintiff, by indulging every reasonable inference from said allegations, it clearly appears:

A. That said second cause of action is based upon plaintiff’s assertions that the -“bond proceedings commenced on July 18, 1956, and the election of November 6,1956, are invalid for the reasons that on November 4, 1955, an electors’ petition containing the requisite number of signatures was filed with the Fayette County Board of Education requesting the appointment of a county citizens’ committee pursuant to 83311.30 R. C.; that on November 14, 1955, the Washington C. H. City School District, the only city school district within the county, requested to join therein; that the Fayette County Board of Education failed and refused to convene a convention to select the county citizens’ committee as required by law; that the Relator Board of Education, in conjunction with the county superintendent of schools and the Fayette County Board of Education, pursued a course of action, including the bond proceedings involved herein, for the purpose of avoiding their respective duties and circumventing the mandatory requirements of §3311.30 R. C., until required on February 6, 1957, to convene a convention to select the citizens’ committee as a result of Case No. 4235, a taxpayers’ action, in the Probate Court of Fayette County, Ohio.”

B. That the language set forth in said second cause of action was obtained from some other pleading or proceeding in which the words “Relator Board of Education” were used to name and designate some certain party to such proceeding, and that said words, “Relator Board of Education,” do not name or designate any party to the within cause and are wholly without sense, meaning or comprehension as stated and set forth in plaintiff’s petition herein;

C. That the within cause is not before this Court on appeal from any final entry or order of the Probate Court of Fayette County, Ohio; and that any final order made by said probate court in said case No. 4235 on February 6, 1957, is not now reviewable and can not be considered by this Court in this cause;

D. That plaintiff’s statements concerning the Fayette County Board of Education, the Washington C. H. City School District, and the Fayette County Superintendent of Schools, as set forth in plaintiff’s second cause of action, fail to allege any operative facts and circumstances which would constitute any essential or substantial grounds for maintaining an action in the case at bar;

E. That the maximum force and effect of the provisions of §3311.30 R. C., so referred to in plaintiff’s socalled second cause of action has been clearly adjudicated and determined by the Supreme Court of Ohio in State, ex rel. Board of Education of Miami Trace Local School District, v. Thompson, Clerk, 166 Oh St 446, wherein that court by per curiam opinion, beginning on page 447, stated and decided as follows:

“Per Curiam. The case has been submitted on the petition, the answer and the demurrer to the answer and presents the question: Where a board of education under authority of an election legally passes a resolution to issue bonds for a local school district, does the selection of a citizens committee under authority of §3311.39 R. C., between the date of the election authorizing the issuance of bonds and the date of the board’s resolution to issue the bonds, take from the board its authority to issue the bonds? It is respondent’s contention that no board of education may take any action which will, in any way, confuse or destroy a general plan which might be submitted by a citizens committee proceeding under §3311.31 R. C.

“An examination of that section discloses that the powers of a citizens committee are limited to the making of a report recommending the continuance of an existing school system or a plan of reorganization. The function of the committee is recommendatory and advisory only. Its duty is limited to making a report, and it is without 'power to carry its recommendation into effect. The authority to carry into effect any recommendation which might be made by the committee is, by the statute; placed in the Superintendent of Public Instruction, the county board of education and, finally, the electors of the district involved.

“There is nothing to indicate that, in enacting §§3311.39 and 3311.31 R. C., the General Assembly intended to hold in abeyance the authority of a board of education to issue bonds to carry out an educational program pending the possible recommendation of a citizens committee, whose only power is to recommend and advise, or to limit the power of a board of education to issue bonds under the provisions of the Uniform Bond Act.

“The respondent, by her answer, does not plead a legal defense to the petition. The demurrer to the answer is sustained.

“Demurrer sustained.”

P. That the allegations so contained and set forth in plaintiff’s socalled second cause of action constitute an unbelievable combination of unrelated, irrelevant, immaterial and meaningless statements which are so fantastic that they not only reflect serious discredit upon the pleader and the legal profession but also demonstrate an unwarranted contempt for the intelligence of this original court and for any reviewing court in this cause;

G. That, for the reasons and upon the authority hereinabove cited, this Court must find that branch (3) of said defendant’s motion to strike, insofar as it seeks to strike such separate cause of action from plaintiff’s petition, is well made as to said second cause of action in plaintiff’s petition and should be sustained;

14. That, upon due consideration of all the allegations contained in plaintiff’s petition, insofar as the same may be connected with and related to that portion thereof designated and entitled “THIRD CAUSE OF ACTION,” and giving thereto a liberal construction most favorable to the plaintiff, by indulging every reasonable inference from said allegations, it clearly appears:

A. That said third cause of action alleges as follows:

“On March 15, 1958, the Fayette County Board of Education took action to transfer the former New Holland Local School District, situated both in Pickaway County and Fayette County, Ohio, to the Miami Trace Local School District, effective July 1, 1958. The Defendants claim said former Local school district is a valid part of said Miami Trace Local School District; that the proposed bond issue shall be a lien on the taxable property thereof; and that the levy of taxes purported to be made in said resolution of February 25. 1958, to pay the interest and principal thereon, is a valid levy on the taxable property thereof.

“Plaintiff alleges that the proposed bond issue cannot be a valid lien on, and that the said taxes cannot be levied on, the taxable property in said former local school district. Plaintiff further alleges that unless action is taken by Defendants to cause a bond issue to be a valid lien and such taxes to be a proper levy thereon, the full faith, credit and revenue of the Miami Trace Local School District cannot be pledged for the purpose of paying such bonds and that the taxes to be levied for such purpose will not be and cannot be uniform on all property within said school district, as required by law.”

B. That, by his allegations therein, plaintiff contends the bond issue cannot be valid and said taxes cannot be levied on the taxable property in said former local school district unless some further action is taken by defendant board of education;

C. That, by his allegations therein, plaintiff clearly admits that defendant board of education can take such further action as may be necessary to cause said bond issue to be a valid lien and such taxes to be a proper levy thereon and so that the full faith, credit and revenue of the Miami Trace Local School District can be pledged for the purpose of paying such bonds and so that the taxes to be levied can and will be uniform on all property within said school district;

D. That plaintiff’s third cause of action clearly fails to allege that defendant board of education has refused or failed to take timely action on these matters so alleged by plaintiff, or that said board of education is precluded in any way from taking whatever action may be required by law:

E. That, by his allegations therein, together with all other allegations in plaintiff’s petition related thereto, plaintiff has failed to state any operative facts or circumstances necessary and essential to state or maintain a cause of action;

F. That the admissions made by the allegations set forth in said socalled third cause of action and the failure of plaintiff to state operative facts necessary to constitute a cause of action clearly show that said socalled third cause of action was designed and intended to state a frivolous and sham cause of action;

G. That, for the reasons and upon the findings hereinabove set forth, this Court must find that branch (3) of said defendant’s motion to strike, insofar as it seeks to strike such separate cause of action from plaintiff’s petition, is well made as to said third cause of action in plaintiff’s petition and should be sustained;

15. That, upon due consideration of all the allegations contained in plaintiff’s petition, insofar as the same may be connected with and related to that portion thereof designated and entitled “FOURTH CAUSE OF ACTION,” and giving thereto a liberal construction most favorable to the plaintiff, by indulging every reasonable inference from said allegations, it clearly appears;

A. That, by his allegation therein, together with all other allegations in plaintiff’s petition related thereto, plaintiff recites that certain annexation and transfer of territory for school purposes have been made from the Miami Trace Local School District to the Washington C. H. City School District, and “that great uncertainty exists as to whether the proposed bond issue can be a valid lien on, and the said taxes can be levied on, the taxable property in the territory involved in said annexations and transfers; that unless and until the validity of said annexations and transfers is determined the full faith, credit and revenue of the Miami Trace Local School District cannot with any certainty be pledged for the purpose of paying such bonds and that the taxes to be levied for such purposes will not be and cannot be uniform on all property within said school district, as required by law”; that, if, as Defendants claim, said annexations and transfers effected prior to November 6, 1956, are invalid, the territory involved therein was at all times mentioned herein a part of the Miami Trace Local School District and, the electors residing therein not having been permitted to vote in said November 6, 1956, election on the question of the issuance of said proposed bond issue, and at various other elections prior and subsequent thereto on questions of the formation of the Miami Trace Local School District and the election of Defendant members of its board of education, the said election and bond proceedings are invalid and the existence of said school district and the capacity of the Defendants to act therefor is in doubt.

B. That, by his allegations therein, together with all other allegations in plaintiff’s petition related thereto, plaintiff merely speculates as to “if” and “as” and then states his conclusions concerning what he believes the contentions of defendant board of education are and what the effect would be if the board so contends;

C. That it is apparent from the face of plaintiff’s petition that said so-called fourth cause of action is based upon plaintiff’s imagination, conjectures, speculations and fantastic conclusions;

D. That it is apparent from the face of plaintiff’s petition that it is devoid of any concrete and concise statements of operative facts necessary to constitute a cause of action;

E. That it is apparent from the face of plaintiff’s petition that said so-called fourth cause of action was designed and intended to state a frivolous and sham cause of action;

F. That, for the reasons and upon the findings hereinabove set forth, this Court must find that branch (3) of said defendant’s motion to strike, insofar as it seeks to strike such separate causes of action from plaintiff’s petition, is well made as to said fourth cause of action in plaintiff’s petition and should be sustained;

16. That, upon due consideration of all the allegations contained in plaintiff’s petition, insofar as the same may be connected with and related to that portion thereof designated and entitled “FIFTH CAUSE OF ACTION,” and giving thereto a liberal construction most favorable to the plaintiff, by indulging every reasonable inference from said allegations, it clearly appears:

A. That said fifth cause of action alleges as follows:

“On January 13, 1958. the State Board of Education of Ohio initiated a survey of the possibility of making improvements in school district organization in Fayette County, Ohio, through consolidation of existing school districts and the transfer of existing school districts or parts thereof to other school districts, pursuant to §§3311.37 and 3311.38 R. C., but the recommendations and proposals of the State Board of Education have not as yet been made.

“Defendant members of the Miami Trace Board of Education intend to and will, unless restrained by the court, sell arid issue the proposed bonds in the amount of $1,652,500.00 for the purpose of expending the sum of $1,275,000.00 thereof in the construction of a high school building at an announced and definite location in close proximity to the City of Washington C. H., Ohio, thereby causing numerous pupils in said school district to be transported an excessive distance to said high school. In addition, a high school at such location will seriously endanger the populace of Washington C. H., Ohio, through pollution of the water supnly of said city, and Defendants have made no plans and do not and will not have the funds to construct a sewage disposal facility in coni unction with said high school to minimize said danger of pollution. although they have been advised of the same.

“Plaintiff alleges that to issue said bonds and to build said high school would constitute an abuse of discretion on the part of Defendant members of said board of education during the pendency of said study by the State Board of Education, and that the Defendants should be restrained from doing so.

“Plaintiff further alleges that, under such circumstances, the issuance of said bonds as contemplated would constitute an abuse of discretion on the part of Defendant members of said board of education even if said high school building was not constructed, or was not constructed at such location, since the necessary delays in the proceedings of the State Board of Education or in the adoption of new plans or the determination of a new location for said high school would render the sale of said bonds unnecessary at this time, while if the same were issued the interest thereon required to be paid by the taxpayers of said, school district would amount to approximately $40,000.00 annually on bonds issued prematurely.”

B. That, by his allegations therein, together with all other allegations in his petition related thereto, plaintiff claims in part that he is entitled to an injunction against defendant board of education for the reason that the State Board of Education of Ohio, on January 13, 1958, initiated a survey pursuant to the provisions of §§3311.37 and 3311.38 R. C., and that the recommendations and proposals of the State Board of Education have not as yet been made;

C. That, by his allegations therein, plaintiff does not allege any operative facts to show how or why such survey, so initiated by said State Board of Education, takes from defendant board of Education its authority to issue the bonds in question;

D. That plaintiff’s allegations concerning said State Board of Education, said survey and recommendations and proposals and said §§3311.37 and 3311.38 R. C., fail to allege any operative facts and circumstances which could constitute any valid grounds for the issuance of a restraining order and injunction against defendant board of education;

E. That the maximum force and effect of the provisions of §§3311.37 and 3311.38 R. C., so referred to in plaintiff’s fifth cause of action could be no greater than the determination and decision handed down by the Supreme Court of Ohio in State, ex rel. Board of Education of Miami Trace Local School District, v. Thompson, Clerk, 166 Oh St 446, herein-above cited and referred to;

F. That, by his allegations therein, plaintiff alleges and claims that the issuance of said bonds and the building of such high school would constitute an abuse of discretion on the part of defendant board of education;

G. That the Supreme Court of Ohio in Brannon v. Board of Education of Tiro District, 99 Oh St 369, the following rule of law was declared and pronounced to.be the law of this state:

“2. A court has no authority to control the discretion vested in a board of education by the statutes of this state, or to substitute its judgment for the judgment of such board, upon any question it is authorized by law to determine.”

H. That, in Greco v. Roper et al Board of Education of City School Dist. of Campbell, 145 Oh St 243, at page 250, the Supreme Court of Ohio stated in part as follows:

“The proposition is well settled that when an instrumentality of government is vested with discretion and such discretion is exercised in good faith and in a lawful manner, it should not be interfered with or controlled by the courts. Or, as stated by this court in the second paragraph of the syllabus of Brannon v. Bd. of Edn. of Tiro Consol. School Dist., 99 Oh St 369, 124 N. E. 235, ‘a court has no authority to control the discretion vested in a board of education by the statutes of this state, or to substitute its judgment for the judgment of such board, upon any question it is authorized by law to determine,’ ”

I. That plaintiff’s petition is devoid of allegations of operative facts showing how and in what manner defendant board is exercising its discretion in bad faith or any unlawful manner upon any question it is authorized by law to determine;

J. That, by his allegations in said fifth cause of action, together with all other allegations in his petition, plaintiff merely sets forth fantastic conclusions and inferences without stating concise operating facts which would support and constitute a cause of action;

K. That, for the reasons and upon the findings hereinabove set forth, this Court must find that branch (3> of said defendant’s motion to strike, insofar as it seeks to strike such separate cause of action from plaintiff’s petition, is well made as to said fifth cause of action in plaintiff’s petition and should be sustained;

17. That, upon due consideration of all the allegations contained in plaintiff’s petition and giving thereto a liberal construction most favorable to the plaintiff, by indulging every reasonable inference from said allegations, it clearly appears;

A. That said petition shows on its face that it was not filed in good faith;

B. That said petition shows on its face that it was conceived, drawn and filed as a frivolous, vexatious and sham petition;

C. That, by reason of all of the findings hereinabove set forth, plaintiff’s petition should be stricken from the files and plaintiff’s action should be dismissed with prejudice to any further action based upon the proceedings and decision of the Probate Court of Fayette County, Ohio, in Case No. 4235; the proceedings and decision of the Supreme Court of Ohio, in Case No. 35176 and Case No. 35560; the provisions of §§3311.30 and 3311.31 K. C.; the provisions of §§3311.37 and 3311.38 R. C.; and upon such allegations by which plaintiff would seek to invoke the authority of a court to control the discretion vested in defendant board of education by the statutes of this state, or to substitute the judgment of the court from the judgment of defendant board of education, upon any question said defendant board of education is authorized by law to determine.

It is, therefore, ORDERED, ADJUDGED AND DECREED that the Board of Education of the Miami Trace Local School District, Fayette County, Ohio, be, and hereby said board of education is, made a party defendant in this action;

It is further ORDERED that Taylor Groff, J. Herbert Perrill, Gordon Cowdery, Robert T. Owens, Richard S. Snyder, and Senath Thompson, being all of the original and individually named and designated defendants herein, be, and hereby said original defendants are, dismissed as parties defendant in this action;

It is further ORDERED that, for all of the reasons and upon all of the authorities hereinabove stated and set forth, branches 1, 2 and 3 of the motion herein filed by the Board of Education of the Miami Trace Local School District, Fayette County, Ohio, be, and hereby said branches of said motion are, sustained;

It is further ORDERED that, for all of the reasons and upon all of the authorities hereinabove stated and set forth, plaintiff’s petition be, and hereby plaintiff’s petition is, stricken as a frivolous, vexatious and sham pleading, and that plaintiff’s action be, and hereby plaintiff’s action is, dismissed with prejudiced to any further action based upon the proceedings and decision of the Probate Court of Fayette County, Ohio in Case No. 4235; the proceedings and decision of the Supreme Court of Ohio, in Case No. 35176 and Case No. 35560; the provisions of §§3311.30, 3311.31, 3311.37 and 3311.38 R. C.; and upon such allegations by which plaintiff would seek to invoke the authority of a court to control the discretion vested in said defendant board of education by the statutes of this state, or to substitute the judgment of the court for the judgment of defendant board of education, upon any question said defendant board of education is authorized by law to determine.

To all of which findings and orders, the plaintiff excepts and his exceptions are hereby noted of record.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    MARTING, Plaintiff-Appellant, v. GROFF et, Defendants-Appellee.
    Ohio Appeals, Second District, Fayette County.
    No. 316.
    Decided May 14, 1959.

      Griffith & Griffith, Brownfield & Malone, Columbus, for plaintiff-appellant.
    Butler, Addison, Smith & Carmack, Columbus, Grace Fern Heck, Springfield, for defendants-appellee.
   OPINION

By THE COURT:

This is an appeal on questions of law from the order and judgment of the Common Pleas Court of Fayette County, Ohio, sustaining a motion of the Miami Trace Local School District and dismissing plaintiff’s petition.

The facts disclose that on July 10, 1958, plaintiff-appellant filed a petition in the Common Pleas Court of Fayette County seeking to permanently enjoin a proposed bond issue of the said school district and for a determination of the territory included within said school district and the taxable property upon which bonds would be a lien.

The individual members and the Clerk of the Board of Education of the Miami Trace Local School District were the only parties joined and served as defendants.

On August 9, 1958, the Board of Education of said school district filed its motion for orders; To make the Board of Education of the Miami Trace School District a party defendant; to dismiss the individual members of said Board as party defendants; to strike the entire petition from the files as a sham and frivolous pleading, and, in the alternative, to strike each of the five causes of action in the petition on the same ground; and in the alternative, to make definite and certain, and to strike numerous allegations contained in the petition. The Board of Education was made a party defendant, and the petition was dismissed with prejudice.

From the judgment on the motion, plaintiff-appellant has assigned the following errors:

1. The Trial Court erred in dismissing the individual members of the Board of Education of the Miami Trace Local School District as party defendants.

2. The Trial Court erred in dismissing the clerk of the Board of Education of the Miami Trace Local School District as a party defendant.

3. The Trial Court erred in dismissing each and every of the five f 5) causes of action contained in the Petition and striking and dismissing the Petition.

4. The Trial Court erred in attempting to preclude Plaintiff from filing future legal proceedings.

With reference to the first two assignments of error, it is provided by statute that any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein. (Sec. 2307.19 R. C.) Do the defendants named in the petition, stripped of their identity as members and clerk of the Board of Education, come within the scope of this statute? We do not think so. As individuals, they stand in no different position than any other taxpayer in the school district. Acting independently of the Board of Education, they have no authority to perform acts which could adversely affect the rights of the plaintiff. It is common knowledge that school bonds are not issued by individuals; by statute, the Board of Education is the “bond-issuing authority.” (Sec. 133.01 R. C.)

In fact, individual members of Boards of Education have been known to disagree on the necessity of issuing bonds; only a two-thirds affirmative vote of its members is required to give the Board the corporate capacity to declare by resolution the necessity for a bond issue.

The applicable rule is stated as follows in 79 Corpus Juris Secundum, page 321, Section 432 b.:

“Except where it is otherwise provided by statute, a corporate school organization which is a proper party plaintiff or defendant in an action must sue and be sued as such in its correct corporate name and not in the name of the members of the school board.”

A similar rule was adopted in the case of Halliday v. Marchington, 44 Oh Ap 132, where the first branch of the syllabus reads as follows:

“An action against a board of education must be brought against the board in its corporate capacity, and not against the individuals constituting the board.”

See also Ohio, ex rel. Charles Steinbeck, v. Treasurer of Liberty Township, 22 Oh St 144, and §3313.17 R. C.

The plaintiff-appellant draws a distinction between the cases involving indebtedness and the instant case which involves injunctive relief. However, in the absence of statutory authority for the members and clerk of the Board of Education, acting as individuals, to issue school bonds, such line of distinction is too fine to comprehend. In the case of Knotts v. Gallipolis, 100 Oh Ap 491, cited by plaintiff-appellant, the officer was a proper party because he had a duty to perform the acts sought to be enjoined; in this case, the individuals named have no duty and no authority to perform the acts sought to be enjoined. Would a permanent injunction against said individuals stop the Board from proceeding? The issuance of school bonds is a corporate act of the Board of Education, and even though the clerk and officers have certain administrative responsibilities connected therewith, a petition for injunctive relief should properly be directed to the Board.

The trial court therefore committed no error in determining that the Board of Education of the Miami Trace Local School District is the only necessary and proper party defendant in this action.

With reference to the third assignment of error, we recognize that courts are reluctant to treat a motion to strike as a demurrer, but the Supreme Court of Ohio has not adhered strictly to the general rule. Finch v. Finch, 10 Oh St 501; Robinson v. Fitch, 26 Oh St 659; State, ex rel. Smith, v. Young, 137 Oh St 319, 29 N. E. (2d), 564.

We have therefore carefully examined and favorably considered each cause of action in the petition and find that its scope and bearing uphold the trial court’s conclusion that said pleading is frivolous and vexatious. Stripped of conclusions of law, conclusions of the pleader, and argumentative matter, the petition contains no affirmative allegations of fact which might properly be directed to the relief sought therein.

The brief of plaintiff-appellant calls particular attention to the fact that the language of the second cause of action is identical to language set forth as the fourth defense in an answer to a petition in mandamus filed in the Supreme Court of Ohio and that said court overruled a motion to dismiss said defense as frivolous and sham. (State, ex rel. Board of Education, v. Thompson, 167 Oh St 23, 145 N. E. [2d], 668.) However, a good cause of action set forth in answer to a petition in mandamus may be subjected to question in a petition for injunctive relief. In fact, the appearance of identical language under the circumstances presented tends to discredit the latter pleading and to shadow its purported motivation. In our opinion, the trial court was justified in striking the petition from the files as a frivolous pleading.

The fourth assignment of error is directed to that part of the judgment entry which reads as follows:

* * plaintiff’s action is dismissed with prejudice to any further action based upon the proceedings and decision of the Probate Court of Fayette County, Ohio, in Case No. 4235; the proceedings and decision of the Supreme Court of Ohio in Case No. 35176 and Case No. 35560; the provisions of §§3311.30, 3311.31, 3311.37 and 3311.38 E. C.; and upon such allegations by the which plaintiff would seek to invoke the authority of a court to control the discretion vested in said defendant board of education by the statutes of this state, or to substitute the judgment of the court for the judgment of defendant board of education, upon any question said defendant board of education is authorized by law to determine.”

The parties to this controversy are in disagreement as to what this language was intended to accomplish. The plaintiff-appellant concludes therefrom that the trial court has attempted to preclude him from filing future legal proceedings. The defendant-appellees interpret said language as an order making his finding “res adjudicata” as to any attempted future action based on the subject matter of this action.

We share the uncertainty of counsel concerning the quoted provision of the entry. However, even if we were to adopt the contention of plaintiff-appellant, it would not follow that his rights have been prejudiced thereby. The merits of any pleading filed in the future can be tested at the proper time and place without reference to the judgment entry in this case and, needless to say, said entry cannot and does not preclude the plaintiff-appellant from instituting any action which the law allows.

In conclusion, we do not find that the court has abused its inherent power in the case before us, and its judgment will therefore be affirmed.

WISEMAN, PJ, CRAWFORD and KERNS, JJ, concur,


author: By WISEMAN, J.

text:
    STATE, Plaintiff-Appellee, v. MYERS, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6100.
    Decided July 14, 1959.

      Earl W. Allison, Pros. Atty., John E. Compson, Albert G. Giles, Asst. Pros. Attys., Columbus, for plaintiff-appellee.
    A. R. Zingarelli, Columbus, for defendant-appellant.
    (WISEMAN, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By WISEMAN, J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County in a criminal case in which the defendant-appellant was convicted of second degree manslaughter.

The defendant was charged with violating §4511.16 R. C., which provides:

“No person shall unlawfully and unintentionally kill another while violating any iaw of this state applying to the use or regulation of traffic. Any person violating this section is guilty of manslaughter in the second degree.”

The indictment charged that on July 18, 1958, the defendant, Jack D. Myers, within the County of Franklin,

“did unlawfully and unintentionally kill Olive Fannin while violating laws of this state applying to the use and regulation of traffic, to wit, “(a) Sec. 4511.19 R. C. — did operate a motor vehicle on Wilson Bridge Road in said county while under the influence of intoxicating liquor,

“(b) Sec. 4511.20 R. C. — did operate a motor vehicle upon Wilson Bridge Road without due regard for the occupants of this vehicle or of other vehicles, so as to endanger the life, limb, or property of persons in the lawful use of the highways,

“(c) Sec. 4511.43 R. C. — being the operator of a motor vehicle did fail to stop at a stop sign and yield the right-of-way before entering the intersection of Wilson Bridge Road and State Highway 315,

“contrary to the statute in such cases made and provided and against the peace and dignity of the State of Ohio.”

Alter a verdict of guilty was returned and judgment entered, defendant’s motion for new trial was overruled.

The defendant has assigned five claimed errors: First, admission of the State’s expert witness relative to a blood specimen; second, denying defendant’s request to give to the jury five special written instructions; third, failure to incorporate in the general charge the points of law embraced in the requested special written instructions; fourth, error in the general written charge; and, fifth, in refusing to amend its general written charge after it was given to the jury.

In the main, the pertinent facts are undisputed. On July 18, 1958, at about one o’clock A. M., the defendant was operating an automobile m a westerly direction on Wilson Bridge Road, accompanied by a passenger, Olive Fannin. Wilson Bridge Road and State Highway 315 form a T~.intersection. As the defendant approached this intersection he was travelling at a rate of speed which he estimated at forty to forty-five miles per hour; there was no attempt to stop or turn the automobile at said intersection; the automobile was driven straight across State Highway 315 and into a bank of earth on the west side of the highway: no other vehicle was involved. The evidence further shows that the weather was clear and the road was dry. The defendant was familiar with the intersection. There is a stop sign warning drivers of vehicles travelling west on Wilson Bridge Road to stop before entering State Highway 315. Olive Fannin died as a result of injuries suffered in the accident.

The evidence further shows that the defendant had lost sleep the previous night, had worked the day previous, and in the evening met with friends and engaged in drinking beer from early evening until after midnight. The defendant and Olive Fannin left the last tavern visited at about 12:45 A. M. About ten minutes later the accident happened. In explanation of the happening the defendant testified: “I don’t know whether I blacked out and went to sleep.” (Page 181, Bill of Exceptions) “I either blacked out, went to sleep, or — I just don’t know.” (Page 182, Bill of Exceptions.) The defendant testified that he didn’t remember going through the stop sign. (Page 207, Bill of Exceptions.) Soon after the accident the defendant stated to the officers that he didn’t know what happened; that “he must have gone to sleep.”

Under the first assignment of error, the defendant raises the question as to the competency of the testimony given by the State’s expert witness pertaining to the specimen of blood taken from the defendant. First, the defendant claims that there was not a sufficient showing of identification of the specimen of blood as being that taken from him at the hospital a short time after the accident. After due consideration the trial court overruled defendant’s motion and objection to the testimony of the expert witness respecting the analysis of the blood specimen. (Page 93, Bill, of Exceptions.) The Highway Patrolman, Dunaway, testified that after his arrival at' the University Hospital, at 1:57 A. M. on July 18, 1958, the defendant permitted the specimen of blood to be taken in the presence of the witness, which was taken by a doctor in the emergency room from the anterior aspect of the left arm and elbow, using a needle and syringe; the specimen was then sealed in a bottle; the witness, in company with Radioman Woodring, took the specimen to the Columbus Police Department and placed it in the refrigerator in Mr. Shupe’s laboratory. The specimen was further identified by Mr. Shupe, a chemist employed by the Columbus Police Department, who testified that on July 18, 1958, at 8 o’clock A. M., he removed the sealed specimen from his refrigerator, which was labelled “Jack Donald Myers, time 2:30 A. M., M. D. Dunaway”; that he thereupon made an analysis of the alcohol content of the blood specimen which showed the specimen to contain .17 of one per cent of alcohol by weight; that over .15 of one per cent everybody is under the influence of alcohol.

There was no break in the chain of evidence established by the testimony of Dunaway and Shupe; there are no facts which would indicate any confusion as to the identity of the specimen or any possibility of tampering. It was incumbent upon the State to show that the specimen was the defendant’s and that there had been no substitution or tampering. The burden is not an absolute one, requiring the State to negative all possibility of tampering. See State v. Smith, 222 S. W. 455 (Mo.); People v. Riser, 305 Pacific (2d), 1, 10 (Calif.): 21 A. L. R. (2d), 1216 and supplements. The identification of the specimen being proved and there being no evidence whatever indicating tampering with the specimen, the testimony of the expert witness was admissible. Furthermore, there is other evidence in the record of sufficient probative value to justify a finding by the jury that the defendant was under the influence of intoxicating liquor, and for this reason admission of the specimen into evidence, if erroneous, did not constitute prejudicial error True, the defendant claims he was not intoxicated. The charge hero is for driving while under the influence of intoxicating liquor. It was not necessary for the State to show, under the charge, that the defendant was in a drunken stupor. Under the evidence, the rule of law laid down in Williams v. Columbus, 31 Abs 395, applies with much force. The syllabus is as follows:

“The Court of Appeals is not inclined to reverse a conviction where the testimony as to driving while intoxicated is conflicting, and a conviction based on the testimony of the two arresting officers will be affirmed even though defendant and his wife testify that he was not intoxicated at the time of the arrest and four or five other witnesses testify that he was not intoxicated at earlier times during the night.”

Counsel for the defendant discusses under one heading the second, third, fourth and fifth assignments of error and we do likewise. At the conclusion of the evidence defendant requested the court to give five special written instructions to the jury before argument, and also requested that a written charge be given. The court gave a written charge, but refused to give before argument the special written instructions, stating that the court would consider the request in connection with the written charge. After argument, but before the general charge was given, the defendant renewed his request, which was refused.

In a criminal proceeding the giving of special written instructions on points of law covered in §2945.10 (E) R. C., before argument, is discretionary and not mandatory. 15 O. Jur. (2d), 743, Section 577 (cases cited).

The defendant contends that the points of law embraced in the requested special instructions were not carried into the general charge and that prejudicial error resulted.

The court may refuse to give an incorrect or an inapplicable instruction; or may refuse to give a requested instruction if covered in substance in the general charge; neither is the court required to give a requested instruction in the exact language used in the request. If the general charge contains all the law of the case, error cannot be predicated on the refusal to give a requested instruction. 15 O. Jur. (2d), 744, 745, 746, Sections 578, 579. See Bond v. State, 23 Oh St 349. Also, the court may refuse to give a requested instruction which, though correct under a different state of facts, requires essential modification to prevent it from misleading the jury. Callahan v. State, 21 Oh St 306.

Requested instructions No. 1 and No. 2 are as follows:

“1. You, the members of the jury, cannot infer that the defendant was reckless or violated a traffic law from the mere happening of a traffic accident which resulted in the death of the deceased, Olive Fannin.

“2. Before you can find the defendant guilty of manslaughter, you must find as a matter of fact, that the defendant not only violated one of the sections set forth in the indictment of the Ohio Revised Code but you must also find that the unlawful act relied upon was the proximate cause of the death of the deceased, Olive Fannin.”

The above requested instructions were covered in substance in the general charge.

Requested instructions Nos. 3 and 4 are as follows:

“3. If you should find, as a matter of fact, that there was an odor of alcohol in the defendant’s breath, that fact alone is not sufficient proof that he was intoxicated.

“4. If you find, as a matter of fact, that there was an odor of alcohol in the defendant’s breath and that the defendant acted otherwise as an intoxicated person might act, but that the other actions could be accounted for by the collision in which the defendant was involved, then those facts alone are not sufficient proof beyond a reasonable doubt that the defendant was intoxicated.”

The above requested instructions were incomplete, partly incorrect and misleading, and were properly refused. We question whether instruction No. 3 is based on a “point of law” as required by statute. See. 2945.10 (E) R. C.

The defendant places particular stress on the refusal of the trial court to give requested instruction No. 5, as follows:

“If you find, as a matter of fact, that the defendant fell asleep or ‘blacked out’ prior to the accident in which the deceased, Olive Fannin, was killed, then the defendant is not guilty of manslaughter unless he had such warning under all the circumstances that he would fall asleep or ‘black out’ and that to continue to drive under the circumstances amounted to a disregard to the life, limb or property of other persons in the lawful use of the highways.”

This instruction is intended to cover the gist of the defendant’s defense. The legal effect of this instruction is that if the defendant fell asleep or blacked out while driving the automobile, as claimed by the defendant, he could not be found guilty of negligence unless he had warning that he would fall asleep or black out. The defendant has never contended that he was ill, which was the fact in the case of Weldon Tool Co. v. Kelley, 81 Oh Ap 427, 76 N. E. (2d), 629, or that he suddenly lost consciousness from any unforeseeable cause, which was the fact in the case of Lehman v. Haynam, 164 Oh St 595, 133 N. E. (2d), 97. The state claims that requested instruction No. 5 is an incomplete and an incorrect statement of the law in that it does not require the jury to find that the defendant suddenly became unconscious, which he had no reason to anticipate; also, it implies that if the sleep was induced by intoxication, it would still be excusable; that it confers a blanket excuse on the defendant for his act by failing to reserve for consideration of the jury the question of guilt of the defendant, if the alleged “falling asleep” was the proximate result of intoxication; finally, that it fails to place the burden on the defendant to prove by a preponderance of the evidence that the happening was excusable. We agree with the State on these propositions. '

In Lehman v. Haynam, 164 Oh St 595, 133 N. E. (2d), 97, the third paragraph of the syllabus is as follows:

“Where in an action for injuries arising from a collision of automobiles the defense of the defendant driver is that he was suddenly stricken by a period of unconsciousness, which rendered it impossible for him to control the car he was driving and which he had no reason to anticipate or foresee, the burden of proof as to such defense rests upon such driver.”

It will be observed that the Lehman case was a civil action for damages. We are of the opinion that in a criminal proceeding, the burden is upon the defendant to prove an affirmative defense. Bearing on the question of intoxication and falling asleep, the court on pages 599 and 600 said:

“Tire rule with reference to unconsciousness being a defense against a claim of negligence is well stated as follows in 28 A. L. R. (2d), 35.

“ ‘By the great weight of authority, an operator of a motor vehicle who, while driving, becomes suddenly stricken by a fainting spell or loses consciousness from an unforeseen cause, and is unable to control the vehicle, is not chargeable with negligence or gross negligence. Stated differently, fainting or momentary loss of consciousness while driving is a complete defense to an action based on negligence (and a fortiori to an action based on gross negligence) if such loss of consciousness was not foreseeable.’

“Then follow supporting cases from 20 jurisdictions. The cases seem to be somewhat in conflict as to whether plaintiff in such an action has the burden of showing that the driver causing an accident is conscious, or whether the burden is upon the driver claiming unforeseen unconsciousness to prove it.

“In our opinion the latter rule is the most salutary.

“It would be difficult, if not impossible, for a plaintiff to prove a defendant conscious, and particularly to prove that if he were unconscious whether such condition was foreseeable, such as sleepiness or an intoxicated condition, or resulted frpm an unforeseen cause.

“In our opinion, if one was guilty of what would be negligence as to a conscious person and claims not to have been negligent because of an unforeseen unconsciousness, he should have the burden of proving his condition by the preponderance of the evidence.”

Also at page 601 the court said:

“The burden is upon defendant to prove his defense of unforeseen unconsciousness, and, although no one contradicted in haec verba defendant’s testimony that he blacked out from a unforeseen cause, nevertheless, his claim was hotly disputed. There were bits of evidence from which the jury might have found that it had a basis for not believing defendant or that his unconsciousness was due to drowsiness.

“It would be an unrealistic situation if a driver claiming that he blacked out must be believed as a matter of law, because another driver could not positively say that the first driver did not black out.”

In Bushnell v. Bushnell, 103 Conn., 583, 131 A., 432, the seventh paragraph of the syllabus is as follows:

“Mere fact that one goes to sleep while driving automobile is proper basis for inference of negligence, sufficient to make out prima facie case, and sufficient for recovery if no circumstances to excuse or justify conduct are proven, because it lies within driver’s power to keep awake or cease from driving.”

On page 435 of the Atlantic Reporter the court said:

<• “17) In any ordinary case, one cannot go to sleep while driving an automobile without having relaxed the vigilance which the law requires. without having been negligent. It lies within his own control to keep awake or cease from driving. And so the mere fact of his going to sleep while driving is a proper basis for an inference of negligence sufficient to make out a prima facie case, and sufficient for a recovery, if no circumstances tending to excuse or justify his conduct are proven. Carlson v. Connecticut Co., 85 Conn. 724, 112 A. 646; Sliwowski v. New York, N. H. & H. R. Co., 94 Conn. 303, 309, 108 A. 805; 1 Shearman and Redfield, Negligence, §58a et seq.: posthumous paper of Ezra Ripley Thayer, 29 Harvard Law Review, 807. If such circumstances are claimed to have been proven, it then becomes a question of fact whether or not the driver was negligent; and, in determining that issue, all the relevant circumstances are to be considered, including the fact that ordinarily sleep does not come upon one without warning of its approach. 5 Wigmore. Evidence (2d Ed.) §2491. The trial court was right in leaving the issue to the jury as one of fact, but it might properly have gone farther and called attention to the last-mentioned feature of the case.”

In People v. Robinson, 253 Mich., 507, 235 N. W., 236, which was a criminal proceeding in which the facts are similar to the facts in the case at bar, and where the defendant was charged with negligent homicide arising out of the operation of an automobile upon a public highway, the trial court was affirmed on its refusal to charge as follows:

“ ‘You are instructed that if the respondent, Maurice Robinson, was tired, worn out, and lost consciousness by falling suddenly to sleep and the impact or collision occurred in consequence thereof, then your verdict should be not guilty in this case. You are instructed in view of the previous language that the negligent homicide statute is predicated on negligence, or, in other words, a failure to use care and caution' that the ordinary prudent man would use and that where the cause was brought about by the respondent’s falling to sleep on account of being worn out and weariness and in consequence thereof suddenly falls asleep, then there can be no negligence within the meaning of the negligent homicide statute, and your verdict should be not guilty, in other words, if the sole proximate cause of the collision in this case was caused by the respondent being worn out; fatigued and losing consciousness by falling asleep, then there is no criminal negligence.’ ”

In the cited case the testimony of the State tended to show that the defendant had attended a dance until two o’clock A. M. and that while at the dance he drank beer. When the dance was over the defendant, accompanied by other persons, drove from Benton Harbor to Muskegon, where they drank more beer. They started home at four o’clock A. M. On the way home the defendant was driving and got on the wrong side of the road and collided with an automobile approaching from the opposite direction. The court, in discussing the requested instruction in light of the factual development in the ease, on page 237 said:

“[1, 2] This request is not a correct statement of the law in regard to the negligence of one falling asleep while driving an automobile. He may not always be chargeable with negligence for what he does while asleep, but the rule is different where he voluntarily puts himself in such a physical condition that he cannot stay awake. The danger of driving an automobile on the highways by one who is not in possession of his faculties is a matter of common knowledge. This defendant knew that he had been going without sleep, that he had been drinking that which would disturb his faculties, and that he was not in a fit condition to drive a car. An ordinarily prudent man would have known it. An ordinarily prudent man would have known that this or some other accident would probably happen while driving in that condition. So, under the circumstances as shown by his own evidence, the defendant was negligent in falling asleep. He was negligent in trying to drive a car when a man of ordinary prudence would have known it was not safe for him to do so. It was negligent for him to drive when he was weary and sleepy. It was his duty to stop driving until he had overcome his weariness and regained control pf his faculties. The court did not err in refusing to submit the defendant’s theory on the question of negligence. The evidence sustains the jury’s finding.”

We paraphrase the language of the court in the cited case by stating that in the instant case the defendant knew that he had insufficient sleep during the previous 24 hours, that he had been drinking and that his drinking had disturbed his faculties and, according to a witness called by the defendant, he was in no condition to drive an automobile; that an ordinary prudent person would have known it. In the instant case the evidence tends to show that the defendant failed to stop before entering the intersection; that he operated the automobile without due regard for the other occupant of the automobile so as to endanger the life, limb or property of the persons in the lawful use of the highway; and was driving the automobile while under the influence of intoxicating liquor, all contrary and in violation of the State traffic code. The defendant failed to establish a legal excuse for such violations. Under the facts in this case, the defendant can not escape criminal responsibility for his acts by stating, “I don’t remember what happened,” or “I don’t know whether I blacked out and went to sleep,” or “I just don’t know.” This question is the subject of a lengthy annotation in 28 A. L. R. (2d), 35. In our opinion the refusal to give the requested instruction No, 5 did not constitute prejudicial error.

In its general charge the court properly instructed the jury on all the issues in the case. It is not sufficient to show that the jury might have possibly been misled. In such case the question is: Was the jury probably misled in a matter materially affecting the complaining party’s substantial rights? Ohio Farmers Insurance Co. v. Cochran, 104 Oh St 427, 135 N. E., 537: Eaton v. Askins, 95 Oh Ap 131, 118 N. E. (2d), 203.

We find no prejudicial error in the general charge; neither do we think the refusal to give requested instructions after the general charge was given to the jury constituted prejudicial error.

Finally, under the Code no judgment of conviction shall be reversed for any cause unless it appears affirmatively from the record that the accused was prejudiced thereby or was prevented from having a fair trial. Sec. 2945.83 R. C. In our opinion the defendant had a fair trial, and there is ample evidence supporting the conviction.

We find no assignment of error well made. Judgment affirmed.

BRYANT, PJ, DUFFY, J, concur.