Board of Com'rs of Marion County v. Board of School Com'rs of City of Indianapolis, 19340

• Decision Date: 28 April 1960
• Docket Number: No. 1,No. 19340,19340,1
• Citation: 166 N.E.2d 880,130 Ind.App. 506
• Parties: BOARD OF COMMISSIONERS OF COUNTY OF MARION, State of Indiana, Appellant, v. BOARD OF SCHOOL COMMISSIONERS OF CITY OF INDIANAPOLIS, Appellee
• Court: Indiana Appellate Court

Page 880

166 N.E.2d 880

130 Ind.App. 506

BOARD OF COMMISSIONERS OF COUNTY OF MARION, State of Indiana, Appellant, v. BOARD OF SCHOOL COMMISSIONERS OF CITY OF INDIANAPOLIS, Appellee.

No. 19340.

Appellate Court of Indiana, Division No. 1.

April 28, 1960.

Alembert W. Brayton, Indianapolis, for appellant.

G. R. Redding, Dan R. Winchell, Joseph T. Dye, Indianapolis, Baker & Daniels, Indianapolis, Richard T. Lineback, Greenfield, of counsel, for appellee.

AX, Judge.

This case involves an action to recover school transfer tuition together with a penalty and interest from Marion County for children who were admitted to the schools of appellee school corporation during the school years 1952-1953 and 1953-1954 and whose fathers were, during the time of the school attendance of such children, officers or enlisted men on active duty in the armed forces of the United States and officially stationed and on duty at various places within the geographical boundaries of Marion County, Indiana.

Appellee's complaint was in two paragraphs, the first claiming tuition for the school year 1952-1953 and the second for tuition for the school year 1953-1954. Each paragraph of the complaint charged that appellee had for the year involved furnished tuition to the children whose fathers were officers and enlisted men on active duty in the armed forces of the United States and officially stationed and on duty within the geographical boundaries of Marion County, that appellee had made demand on appellant for payment therefor, and that appellant had failed to make such payment. After the overruling of appellee's plea in abatement, a decision which is not challenged in this appeal, appellant filed an answer pursuant to Rule 1-3 of the Indiana Supreme Court which substantially denied all of the material allegations of each paragraph of the complaint. All of the evidence was stipulated by the parties. The issue resolved itself into a question of law whether on the evidence as so stipulated the appellant was liable for tuition furnished by appellee to the children whose fathers were, during the period of the children's school attendance, officially stationed and assigned to duty at places within the geographical boundaries of Marion County but over which jurisdiction had been ceded to the United States. A further issue of law is whether the penalty and interest adjudged against appellant were authorized by law.

The court found for the appellee and against appellant on each paragraph of complaint and that there was due the appellee from appellant for the school year 1952-1953 the sum of $26,607.02 with penalty thereon of $2,660.70, or a total of $29,267.72, together with interest at 6% per annum from January 1, 1954, to the date of judgment, being $8,516.89, and that there was due appellee from appellant for the school year 1953-1954 the sum of $38,663.89 with a penalty thereon of $3,866.39, or a total of $42,530.28, and interest thereon at 6% per annum from January 1, 1955, to the date of judgment, being $9,822.05.

Two questions are presented by this appeal: (1) Whether Burns' Ind.Stat., § 28-3716 [Acts 1933, ch. 175, § 1, p. 883], includes within its provisions the children whose parents are stationed either at Fort Benjamin Harrison or at the Federal Building in Indianapolis, and (2) Whether the interest and penalty provided for by § 28-3718 [Acts 1935, ch. 279, § 2, p. 1347] and § 28-3719 [Acts 1935, ch. 279, § 3, p. 1347], can be applied to situations arising under § 28-3716.

The applicable statutes are herein set out in full:

§ 28-3716. 'Children of army, navy officers, and enlisted men--Transfers--Tuition.--In all cases where any officer, or enlisted man, of the United States army, navy or marine corps is on duty in the state of Indiana, the children of any such officer, or enlisted man, who are of school are, shall be admitted to any of the public schools of any school corporation in the county in which such officer, or enlisted man, is stationed, so long as any such officer, or enlisted man, may be on duty in such county and any such child shall be admitted to the public schools of any such school corporation so elected. Each such child so admitted to the schools of any such school corporation, whether to the schools of the corporation in which such child resides or to the schools of any other school corporation in the county, shall be considered as a transferred child, and the transfer tuition of such child shall be paid out of the general fund of the county in which such child resides, without an appropriation being made therefor, on allowance by the board of commissioners of such county, at the same charge as is prescribed by law for tuition when children are transferred from the school corporation in which they reside to another school corporation.'

§ 28-3717. 'Tuition of transferred children--Statement filed with debtor corporation--Computation of costs--Leased schoolhouses--Charge authorized.--Whenever children are transferred from one public school corporation in this state to another school corporation in this state under the provisions of any law authorizing or requiring such transfers, the corporation receiving such transfers, shall, on or before the thirty-first day of July of each year, file with the debtor corporation a verified statement showing the name of the debtor corporation, the names of all children so transferred by the debtor corporation, the respective periods of attendance of such children during the school year, the kind of school attended by each child, the annual per capita costs of maintaining the school or schools of the creditor corporation attended by such transferred child or children, and the amounts claimed as owing from the debtor corporation to the creditor corporation on account of such transfers and attendance.

'The annual per capita cost shall be computed from the average daily attendance and the total expenditures of the current school year, as set out in the classified budget forms prescribed by the state board of accounts, excluding interest on bonded debt, capital outlay, debt services, and costs of transportation; and there shall be added to all such expenditures, an amount equal to five per cent on the fair valuation of the school plant: Provided, That in the cases of creditor corporations that have heretofore entered into a contract for leasing a schoolhouse or schoolhouses from voluntary associations under the provisions of the Acts of the General Assembly of the state of Indiana, Acts 1927, p. 269, since repealed, there shall be added an amount equal to five per cent on the fair valuation of the school plant: Provided, That the amount so added shall not exceed fifteen dollars [$15.00] per pupil. It shall be the duty of the county assessor of each county in this state to evaluate and appraise each such school plant within his jurisdiction, annually, at any time between the first day of March and the fifteenth day of May. In making such evaluation or appraisement, such assessor shall comply in all respects with the provisions of the law of this state concerning the assessment of property for purposes of taxation and an appeal may be taken from such determination of the county assessor to the county board of review, or, in the event that no appeal be taken, the decision of the county assessor shall be final.

'And such per capita cost shall be separately computed for the (1) elementary schools, excluding kindergartens, (2) junior high schools, and (3) senior high schools of the creditor corporation.

'The creditor corporation shall be entitled to charge to and receive of the debtor corporation for each transferred child the creditor corporation's per capita cost for the class of school attended by such transferred child, but if any transferred child attends a school of the creditor corporation less than the school year, the tuition charged and paid shall be proportioned to the period of attendance.'

§ 28-3718. 'Tuition--Time of payment--Penalty--Appeal to county superintendent.--(a) The debtor corporation shall pay the amount of transfer tuition shown by such verified statement out of its special school fund or its tuition fund, to the creditor corporation, on or before the first day of January next following receipt of the aforesaid statement. In the event of the failure to pay such transfer tuition within such period, a penalty of ten per cent shall attach from and after such first day of January.

'(b) If a controversy shall arise between such a debtor corporation of this state and a creditor corporation of this state over the amount of such transfer tuition, the debtor corporation shall, within the time provided for payment, pay the portion thereof not in dispute, and, within such period, appeal to the county superintendent of schools of the county in which the creditor corporation is situated, whose decision shall be final. Any amount determined by the county superintendent on such appeal to be owing from the debtor corporation to the creditor corporation shall be paid by the debtor corporation to the creditor corporation within thirty days after his decision is made; and if such payment be not made on or before such first day of January, the penalty, hereinbefore provided for, shall attach from and after such first day of January.'

§ 28-3719. 'Tuition--Nonpayment--County auditor--Duties of county auditor.--If such transfer tuition, or any part thereof, be not paid as and when provided in sections one and two [§§ 28-3717, 28-3718] of this act, then the creditor corporation shall, within thirty days after the expiration of the time provided for payment, file with the auditor of the county in which the debtor corporation is situated, a certified copy of the statement provided for in section one [§ 28-3717] of this act, a certified copy of the decision, if any there be, of the county superintendent of schools, and a verified statement showing the balance unpaid at the time...