The opinion
Stephenson, J.,
concurring. While I agree with much that is said in the majority opinion, I prefer to place my concurrence upon the reasoning below.
The primary issue in this appeal may be stated thusly:
Where a county school board has adopted a resolution pursuant to R. C. 3311.26 creating a new district of two local school districts and, within thirty days from the date of such resolution, a referendum petition is filed against the creation of the new district followed within minutes by the filing of a transfer petition by electors in one of the two districts seeking transfer to another district under authority of R. C. 3311.231, is the board required as a matter of law to process and give priority to the transfer petition over proceedings upon the referendum petition?
The Constitution of Ohio, Section 3, Article 6, authorizes and requires the General Assembly to enact laws for the organization, administration and control of a public school system. Pursuant to such power, the General Assembly has enacted extensive laws regulating the procedure for the creation, dissolution, transfer and consolidation of school districts. An examination of these statutes reveals that the General Assembly has not, however, by express woi'ding, mandated the procedure which is the subject matter of this appeal.
The statutory scheme adopted is readily apparent. With respect to authority to create school districts, such authority is delegated only to county boards of education and the state school board. However, in recognition that
*30
the electors to be affected in such newly created district should have a voice, the right of referendum is given. In the matter of the transfer of one school district to another, authority is given both the board of education and the state board. Additionally, however, authority is given to the electors in a school district to propose a transfer and have an election held thereon.
R. C. 3311.26, under which the Brown County board of education created the new district comprising the former Hamersville local school district and the Mt. Orab local school district, provides for subsequent procedures. If no referendum petition is filed in the office of the county superintendent of schools, the resolution creating the new district becomes effective on the thirtieth day after adoption of the resolution. If a referendum petition is properly filed, the board must certify the same to the board of elections for an election. All of the electors in the proposed new district are eligible to vote.
R. C. 3311.231 provides, in substance, that a county board may adopt a resolution for the transfer of a school district or a portion thereof which, if no referendum is filed against it, becomes effective in thirty days. The electors of a district can propose, by a petition, the transfer of a district or portion thereof to another district. If either a referendum petition or transfer petition is filed, the statutes provide the subsequent procedure, which is, in essence, that the validity of the signatures be checked by the board of elections and certain steps be taken before the issue is placed on the ballot. The eligible voters are those electors in the district containing territory proposed to be transferred.
The statutory difference between who is permitted to vote upon the referendum petition and who is permitted to vote upon a transfer petition is the nub of the controversy and is the reason appellants seek priority of their transfer petition.
While the legislature has not expressly stated whether one or the other or neither have priority, it is evident that it could not have been intended to have both voted on
*31
at the same election. The latter could have the paradoxial result of placing the school territory in a newly created district while at the same time transferring it to still another district.
In
State, ex rel. Erwin,
v.
Bd. of Edn.,
17 Ohio St. 2d 63 , the Ohio Supreme Court considered the two statutes here in question. Concededly, the facts therein differ from the instant case. In
Erwin,
the county board adopted a resolution, pursuant to E. C. 3311.26, creating a new district which included territory known as the Bloomfield local school district. Within the thirty days thereafter and before the effective date of the resolution, electors of the Bloomfield district filed a transfer petition pursuant to E. C. 3311.231. No referendum petition was filed. A writ of mandamus was issued by the Court of Appeals requiring an election upon the transfer petition by the electors of the Bloomfield district. The Supreme Court reversed. The rationale of the decision appears to be that the electors of a school district have the right under E. C. 3311.231 to “determine their destiny” if they choose to exercise it up and until action is taken under E. C. 3311.26. Where a resolution is adopted under the latter section, it can only be overridden by a referendum to be voted upon by all the electors in the new district or, if no referendum petition is timely filed, by a transfer proceeding to be voted upon by all the electors in the new district. It is important to note in
Erwin
that the court placed no significance on the fact that the petition for transfer was filed before the effective date of the resolution. It emphasizes the reasoning that only a timely filed referendum petition, followed by a favorable vote, can override the board’s action.
The importance the court attached to the date of adoption of the resolution creating the new district is perceivable. Prior to such date, if a transfer petition is filed, only the electors of the district containing the territory sought to be transferred are affected or involved.. Where, however, a board creates a new district, a determination has necessarily been made that such is required by the best interests and schooling needs of all of the children in the new district; hence, other electors besides those in the
*32
district sought to be transferred are involved and affected by the board’s action with respect to the education of their children. The Attorney General’s opinions, particularly No. 572 of 1968, upon which appellants rely, fail to recognize or place any weight on this important factor leading to the creation of a new district.
The court specifically reserved the question of priority when a petition for transfer is filed, and before the election is held the board subsequently acts to include the territory in a new district and no referendum is filed before the effective date. In my view, consistency would require that transfer proceedings be given priority and those eligible to vote would be only electors in the district sought to be transferred. It would be anomalous that the General Assembly would give the initial right of choice to the electors of a district seeking transfer, if such choice was timely implemented by a transfer petition filed prior to board action, and then allow that choice to be nullified by subsequent action of the board.
I conclude that where the board, pursuant to R. C. 3311.26, adopted the resolution creating the new district and the referendum petition was filed against it, all of the electors in the newly proposed district were eligible to vote. Therefore, the board acted lawfully in certifying the referendum petition for an election even though there was filed at the same time as the referendum petition, or immediately thereafter, a transfer petition for part of the territory in the newly proposed district seeking a vote only by the electors in the district seeking transfer.