Olive Williamson brought an action in the Darke Common Pleas against the Board of Education of Versailles Village School District seeking an injunction against the Board from taking further steps in regard to the execution and delivery of a $256,000 bond issue, and from certifying to the county auditor any tax levy or budget relative to such bond issue.
On Dec. 31, 1923, Bert Snyder brought an action in the same court in which he sought to enjoin the board from letting contracts for the erection of a school building pursuant to the advertisement asking for bids for the construction thereof, and that the board be enjoined from expending money for the erection thereof.
On May 15, 1924 both cases were consolidated for trial. The court set aside the award of the contract, and permanently enjoined the board from expending any money in acquiring a site or expending money for the erection of a new building, and ordered the bonds can-celled and the proceeds thereof refunded. The case ■ was appealed after which the Industrial Commission and the Retirement Board of State Teachers Retirement System, the holders of the bonds, were made parties with leave to plead.
On April 18, 1925 the Court of Appeals held that the bonds were void and ordered that the money be refunded to the purchasers thereof holding that the board of education abused its discretion in deciding to build a new building instead of repairing the old; the evidence tending to prove that to repair would cost $31,000 while to build would cost $250,000.
The case was taken to the Supreme Court where it was contended that the decision of the court of appeals was in conflict with Bd. of Ed. v. Moorehead, 105 OS. 237, which holds that under 7630-1 GC. the board of education is authorized, upon approval of the electors, *483to issue bonds for the purpose of (1) rebuilding a building destroyed or prohibited, (2) repairing a decayed, injured, delapidated, partially destroyed or prohibited building, or (3) constructing a new building to accommodate pupils of the entire district, said board being authorized to issue bonds in such amount as will be required for either one or both of first two alternatives, or in such amount as will be required for the last.
Attorneys—C. C. Crabbe, Wilbur E. Benoy, Columbus for Commission; Orel J. Myers, Pros. Atty., and John P. Maher, Greenville, for Bd. of Ed.; Mannix, Crawford & Billingsley and M. B. Trainor, Greenville, and H. T. Mather, Sidney, for Snyder et.It is further claimed that the Court of Appeals erred in holding that the issue of $251,000 of the bonds under 7630-1 GC. was illegal and void, that the court erred in holding that the $5000 issue of bonds under 7629 GC., for the purchase of a site for a new school building was illegal and void. It was further said that the court erred in granting a perpetual injunction against the board.
It is further claimed that the order issued by one, Kearns, Division Chief, was a sufficient order to create an emergency under 7630-1 GC. so that an order for the new building was valid. It was contended that if the decision of the court of appeals be the law, when, it was asked, will be the Industrial Commission and the Teachers Retirement System, or any other prospective purchaser of the bonds, be able to determine in advance of a court decision whether a board of education, issuing bonds under 7630-1 GC. for constructing a new building in lieu of repairing the old, has abused its discretion?