Bd. of Trs. of Lafayette Sch. City v. State ex rel. Eaton

• Decision Date: 01 February 1911
• Docket Number: No. 21,799.,21,799.
• Citation: 175 Ind. 147,93 N.E. 851
• Parties: BOARD OF TRUSTEES OF LAFAYETTE SCHOOL CITY v. STATE ex rel. EATON et al.
• Court: Indiana Supreme Court

175 Ind. 147

93 N.E. 851

BOARD OF TRUSTEES OF LAFAYETTE SCHOOL CITY

v.STATE ex rel. EATON et al.

No. 21,799.

Supreme Court of Indiana.

Feb. 1, 1911.

Appeal from Superior Court, Tippecanoe County; Henry H. Vinton, Judge.

Mandamus by the State, on relation of Ira T. Eaton and others, against the Board of Trustees of Lafayette School City. From a decree granting the writ, respondents appeal. Affirmed.Stuart, Hammond & Simms and Allison E. Stuart, for appellants. W. R. Wood, for appellee.

COX, J.

The relators, constituting a partnership, are the contractors for a series of writing books to be furnished and supplied by them for the use of the common schools of the state for a period of five years from the 12th day of June, 1909. The contract was made by the relators with the state board of school book commissioners under the provisions and by authority of Act March 2, 1889 (Laws 1889, c. 50), and subsequent amendatory and supplementary acts (Burns' Ann. St. 1908, § 6320 et seq., and Acts 1909, pp. 377-379). The relators filed a petition in the trial court for a writ of mandate to require appellants to show cause why they should not be compelled and required to use said writing books and to compel them to make requisition for and use them in the common schools of the city of Lafayette during the term of the contract. The alternative writ was issued in accordance with the prayer of the petition, and appellants appeared and demurred for want of facts, and their demurrer was sustained. Relators then filed an amended petition, and appellants unsuccessfully demurred to the amended petition and the alternative writ, the parties considering the alternative writ issued upon the original petition as applicable to the amended petition, and asserted want of facts, and that relators had not legal capacity to sue, as the ground of their demurrer. Appellants then answered and made return to the amended complaint and alternative writ, by general denial, which was subsequently withdrawn, and at length specially. A demurrer was sustained to the special answer, and, appellants refusing to plead further, the court rendered judgment ordering that a peremptory writ issue. On appeal from that judgment the questions presented for the decision of this court by the assignment of errors arise from the action of the trial court in overruling the demurrer of the appellants to the amended petition and alternative writ, and in sustaining the demurrer of the relators to the second paragraph of appellants' answer and return.

Under these assignments of error appellants first contend that the relators are seeking to enforce what is wholly a contractual right, and that mandate is not available to them for that purpose.

That mandamus will not lie to enforce mere contractual rights of a purely private or personal nature is beyond question. But it is well settled that where the contract involves a public trust or official duty, or, in the language of our Code, “an act which the law especially enjoins, or a duty resulting from an office, trust, or station,” the remedy may be invoked if there be a clear legal right and no adequate legal remedy. Merrill on Mandamus, § 16; High on Ex. Legal Rem. (4th Ed.) §§ 25-28; Spelling on Inj. & Ex. Leg. Rem. (2d Ed.) § 1379; State ex rel. v. Cadwallader (1909) 172 Ind. 619-637, 87 N. E. 644, 89 N. E. 319. “The use of mandamus is limited to the enforcement of rights and duties imposed by law, and if the right or duty rests wholly upon contract the writ will not issue. *** But a contract may create a relation upon which the law will impose rights and duties enforceable by mandamus. *** Rights under a contract made with public officers under statutory authority may be enforced by mandamus in the absence of an adequate legal remedy.” 19 Am. & Eng. Ency. of Law (2d Ed.) pp. 742, 743. The decisions in this and other states are almost wholly without exception that, if a contractual right is so inseparably bound with an imperative duty laid upon public officials by law as to require the performance of the duty of the officer to further or secure such right, mandamus may be invoked to coerce such official action. Chapin v. Osborn, 29 Ind. 99;City of Greencastle v. Allen, 43 Ind. 347; Mayor, etc., v. State ex rel., 57 Ind. 152;Wren v. City of Indianapolis, 96 Ind. 206;City of Greenfield v. State ex rel., 113 Ind. 597, 15 N. E. 241;Ingerman v. State ex rel., 128 Ind. 225, 27 N. E. 499;State ex rel. v. Bever, 143 Ind. 488, 41 N. E. 802;Vandalia R. Co. v. State ex rel., 166 Ind. 219, 76 N. E. 980, 117 Am. St. Rep. 370; State ex rel. v. Cadwallader, supra; State ex rel. v. Marion Light, etc., Co. (last term) 92 N. E. 731;Smalley v. Yates, 36 Kan. 519, 13 Pac. 845;State ex rel. v. School Directors, 74 Mo. 21;Jones v. Bank of Cumming, 131 Ga. 614, 63 S. E. 36;State ex rel. v. Bell, 49 La. Ann. 676, 21 South. 724;Dennington v. Mayor, etc., 130 Ga. 494, 61 S. E. 20;Effingham v. Hamilton, 68 Miss. 523, 10 South. 39;State ex rel. v. Board, 35 Ohio St. 368. See, also, 26 Cyc. p. 284; 19 Am. & Eng. Encyc. of Law (2d Ed.) pp. 742, 743, 818.

The case of State ex rel. v. Haworth, School Trustee, 122 Ind. 462, 23 N. E. 946, 7 L. R. A. 240, is good authority on which to rest the decision of this question in this case, if, indeed, it is not entirely controlling. In that case the validity of the school book law as originally passed in 1889 was determined, and also that mandamus was the proper remedy to coerce a school trustee “to certify to the county superintendent of schools the number of text-books required by the children of the township for use in the public schools, and to procure and furnish such books as the law requires.” In considering the question whether mandamus would lie, Judge Elliott in the opinion of the court said: “The question which here emerges is: Do the provisions of the statute concerning school trustees impose a duty or confer a privilege? Or, to particularize: Do those provisions require all township trustees to adopt the books and thus give practical effect to the statutory scheme as a complete and symmetrical system, or do they put it in the power of each trustee to break the uniformity by refusing to procure the books? If it be true that township trustees may, at their pleasure, procure or refuse to procure the books for which the state board contracts, then the statute is nullified in so far as it assumes to confer a right upon the contractor to supply the people of the state with school books. Grant the right of each of the school trustees to determine for himself whether he will or will not procure the books, and it may result that the contract will operate in very few only of the townships of the state, and this, as we shall presently show, was a result the Legislature intended to prevent.” After a consideration of the provisions of the act of 1889, he answered the question and stated the conclusion in the following language: “From this synopsis these important things were made manifest: The books are to be secured for all the schools of the state. Everywhere throughout the statute the terms employed refer to the entire state, never to localities. Every provision indicates an intention to establish a uniform system, and not a provision indicates an intention to put it in the power of any office to break the uniformity. The duty is enjoined upon all of the trustees of the state; none are excepted. The books are all to be furnished under the contract, and furnished without exception for all the schools of the state. The only method for securing the books is through contract. The conclusion that the law is obligatory upon every school trustee within the state is therefore irresistible. From beginning to end there is no hint or suggestion that some of the trustees may, and some may not, obey the law, and procure or decline to procure the books under the contract made by the state board. There is not the remotest suggestion from which it can be inferred that the system constructed shall be treated otherwise than as a unit. Nor is there a word from which it can be inferred that the Legislature intended that inferior school officers might exercise discretionary power, and thus break and deform the uniformity and symmetry of the system. All we know of the history of the enactment, all we can discover as to the object of the statute, and all that we have learned of the evil sought to be remedied, combine with the words of the statute (words clear in themselves, but clearer still from the light shed upon them by extrinsic facts which it is our duty to know and which we do know) in support of the conclusion that the statute creates a uniform system, requires that all books be procured under the contract, and that school trustees may not exercise discretionary powers, but shall perform the duty enjoined upon them by procuring and distributing the books selected by the state board of education as the law commands.”

The decision of the court in the case just quoted from is strengthened and the compelling force of the writ of mandamus more firmly justified by section 11 of the supplemental act of 1891 (Laws 1891, c. 80; Burns' Ann. St. 1908, § 6348), which reads as follows: “The books which have been, or may hereafter be adopted by the state of Indiana for use in its common schools by virtue of this act, or the act mentioned in section 1 hereof, shall be uniformly used in all the...