I concur with the majority herein, but feel constrained to comment upon my reasons therefor which are based upon an interpretation of the Ohio constitutional mandates for the provision of public education in Ohio, and an interpretation of R. C. 3317, which provides for what is known as the school foundation program.
The Ohio Constitution cloaks the General Assembly with the responsibility for the control and financing of public education in Ohio.
Section 3, Article VI of the Ohio Constitution mandates that "provision shall be made by law for the organization, administration and control of the public school system of the state supported by public funds * * *." Also, Section 2, ArticleVI of the Ohio Constitution provides:
"The general assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state * * *."
Historically, the state, through the General Assembly, has always assisted local school districts to some degree with their financing of education programs.
However, in 1935, Ohio enacted its first school foundation law, which inaugurated an extensive state participation in public school finance, a pattern and policy which has continued with ever increasing encompassment to the present.
The school foundation programs may be enacted as separate bills in the General Assembly or are, as in most recent sessions of the legislature, enacted within, and as a part of, the appropriations bill.
In effect, such school foundation programs establish a *Page 25 financial partnership between the state government and the school districts. The basic premise of such enactments is to guarantee a minimum education program in every school district, and to assure a given measure of state financial assistance to all school districts in the state.
The school foundation program, and the method by which school district educational programs are funded, involves a very comprehensive formula as established by the legislature in order to meet the basic operational needs of a multistructured school system in Ohio, encompassing rural, as well as urban, school districts throughout the state.
Not only do the needs of the school system vary from biennium to biennium, but also the emphasis upon certain programs varies with the current trends of the times, and present a myriad of concerns for the General Assembly.
Such changing patterns of educational programs, and their attendant financing requirements and demands upon the general funds of this state, constantly bring new legislative challenges and debates in order to meet any such proven educational needs.
The legislature has, by virtue of R. C. Chapter 3317, given the charge and responsibilities to oversee and direct the School Foundation Program in Ohio to the state board of education. However, the legislature has provided by law that the administration of such school foundation program by the state board of education shall be subject to a financial check and balance by way of approval of any such administration by the controlling board of the state of Ohio.
R. C. 3317.01 provides, in pertinent part:
"There shall be appropriated to the state board of education by the general assembly out of any moneys in the state treasury to the credit of the general revenue fund sufficient moneys to meet the financial obligations of this chapter * * *."
R. C. 3317.02 provides, in pertinent part:
"Out of the moneys appropriated by the general assembly for distribution pursuant to Chapter 3317. of the Revised Code for each fiscal year, each eligible school district *Page 26 shall be allocated the amount of money derived from the calculation * * *." [Thereafter follows the formula by which the school foundation funds are calculated.]
The language of these aforestated sections is specific that "There shall be appropriated to the state board of education by the general assembly * * * sufficient moneys to meet the financial obligations of this chapter [R. C. Chapter 3317] * * *."
Also, it is mandated that "Out of the moneys appropriated * * * each eligible school district shall be allocated the amount of money * * *" as calculated pursuant to the formula as provided by the legislature within the school foundation program legislation.
Nothing could be more clear than that such language mandates that the amounts as provided by the legislature, pursuant to the foundation formula as established by the legislature, and as subsequently calculated by the superintendent of public education, shall not only be allocated, but distributed to the eligible school districts under the detailed school foundation program.
True, there are other formula distributions of the general revenue fund in the state of Ohio, but there is no other comparable fund which has within it such an infinite degree of legislative attention, established upon a delicate balance of need, local versus state funding, size of district, teacher-pupil balance, geographic and population concerns, transportation needs, and a multitude of other considerations.
The legislative and public policy concerns that may reasonably be inherently aligned with the enactment of the school foundation bill, and its attendant funding, is unequaled in any other facet of state finance. Therefore, we believe that the sections of law within R. C. Chapter 3317 dealing with the appropriation of funds by the state legislature for school operating funds and the administration of the school programs and of such funds by the board of education to be a rather unique legislative area, and not really comparable to other circumstances of other departments, agencies, or boards which might be funded from formula allocations. *Page 27
As stated, there is provided within the general Chapter 3317 an overview of the appropriations for school foundation purposes, and that is the provision that the administration of the school program of the state be carried on with the approval of the controlling board.
There were interim separate appropriation acts for the months of July through December, 1971, and each act contained provisions establishing a controlling board and setting forth its powers.
Such board is given authority to transfer funds within, but not between departments; to transfer items of appropriation from one year to another; to transfer moneys in excess of need from rotary funds to the general fund; and to transfer moneys into new and existing funds.
However, even the controlling board had not, by the terms of such acts, been granted authority to cut back the level of support for state programs including education. The following language is to be found in the interim appropriation bill for August 1971: "The Board shall take no action which does not carry out the intent of the general assembly as to program goals and levels of support of state agencies."
The director of finance was given certain authority within the appropriation measure for August 1971, as well as those that followed, to transfer funds within departments and not to deviate more than 25 percent from the equal quarterly allotments to departments.
Again, however, the director is not given authority to curtail the level of support for state programs, as has been determined by the legislature.
There is no provision in any of the appropriation acts for the Governor to transfer, reallocate, or curtail funds to any department, agency or office. Further, we find no such authority within R. C. Chapter 3317.
It is our view that the payment level for appropriations to the school foundation program is by law to be calculated on the basis of the prescribed formula, and distributed to the school districts accordingly.
The matter before this court does not involve a situation in which an appropriation has been made to a given *Page 28 department of state government which has not been calculated with the fixed and exacting detail as has this appropriated fund.
The important point is that appropriations to the school foundation program must be distributed in accordance with the specific mandates of R. C. Chapter 3317.
The defendants have asserted, and the court below has held, that R. C. 125.09 gives the Governor the power to issue orders which contradict the specific mandate of R. C. Chapter 3317. Thus, we feel that there is a clear and irreconcilable conflict between these statutes. In the face of such irreconcilable conflict one of the two statutory mandates must yield to the other. It is my view that the statutory mandates referring specifically to the school foundation program must be read so as to limit the power purportedly granted to the Governor by R. C.125.09.
In the area of the fiscal policy of the state, R. C. 125.09 is a general statute which provides for the vesting of a general power within the Governor to issue orders to the various departments, state institutions, and offices to curtail expenditures and obligations. In contrast, R. C. 3317.01 and R. C. 3317.02 very specifically deal with the funding of education under the formula of the school foundation program.
It is a well recognized principle of statutory construction that where there is a general statute and a special statute covering the same subject matter, the specific statute controls; see State, ex rel. Bd. of Edn., v. Shumann, Clerk (1966), 7 Ohio St.2d 41.
We believe R. C. 3317.01 and R. C. 3317.02 are specific statutes applying to the support of public education in Ohio, and that R. C. 125.09 is a general statute, and therefore the terms of the special statutes control the general statute.
Therefore, we must conclude that the governor has no authority pursuant to R. C. 125.09 to curtail or diminish payments made to school districts as calculated by the superintendent of schools pursuant to the school foundation program in force at the time. *Page 29