Brandt v. State ex rel. Conrad

CourtSupreme Court of Indiana
Citation86 N.E. 337,171 Ind. 288
Docket NumberNo. 21,208.,21,208.
PartiesBRANDT et al. v. STATE ex rel. CONRAD.
Decision Date24 November 1908


Appeal from Circuit Court, Newton County; C. W. Hanley, Judge.

Mandamus by the State, on the relation of Platt M. Conrad, against Christian L. Brandt, trustee, and others, to compel defendant to remove and re-establish a school building. From a decree awarding a peremptory writ, defendants appeal. Reversed, with directions to sustain demurrer to the alternative writ.

Herman C. Rogers and Dallas C. Rogers, for appellants. T. B. Cunningham, for appellee.


The court below issued an alternative writ of mandate upon the application of the relator. The writ recited the following facts, in substance: That the relator is a voter and taxpayer of school district No. 5 in Lake township, Newton county, and that at the last enumeration there were 18 children of school age in said district, and that appellants are the duly elected, qualified, and acting trustee and members of the advisory board of said township. That on and prior to October 16, 1905, the school for said district was located and conducted at a particularly described place in section 27, township 31 north, range 9 west, which tract is still owned by said township, and prior to said date by proper legal proceedings said schoolhouse was ordered removed and located upon a different site. That on November 24, 1906, a petition by legal voters of said district was filed with appellant Brandt, as trustee, praying for the erection of a new schoolhouse, at a cost not to exceed $800, upon the old school site in section 27. This petition is fully set out and purports to be verified by an affidavit affirming that it was subscribed by more than two-thirds of the voters of said district. It is alleged, further, that the prayer of the petition was denied by the trustee, and an appeal taken to the county superintendent, who, after hearing the matter, reversed the decision of the trustee and ordered and directed him to grant the prayer of said petition, which order is in full force. It is also averred: That a writ of mandamus was issued by the circuit court requiring the trustee to call the township advisory board together in special session, to make the necessary appropriation for the building of said schoolhouse, and to submit to such board plans and specifications for such building; that on June 29, 1907, in obedience to said writ, the trustee called the township advisory board together and submitted a requisition with plans and specifications for said schoolhouse, but at such session said board found that no emergency for the proposed work existed and entered its finding upon the record; and that at the next regular session of said advisory board the trustee failed and neglected to submit his requisition for an appropriation of funds for the purpose of building said schoolhouse, and the advisory board failed and neglected to make any appropriation whatever for said purpose. Upon these facts the writ commanded appellant Brandt, as trustee, to call the advisory board together, and to submit to them plans and specifications and a requisition for funds for the purpose of constructing a schoolhouse upon the described site in section 27, and for furniture and supplies necessary to maintain a public school therein, and said writ required the other appellants, as members of the township advisory board, upon notice, to meet in special session and to appropriate and authorize the trustee to expend of the available funds an amount necessary for the construction and maintenance of such building and school, and, in case the funds on hand were insufficient, that the trustee be empowered to borrow money for such purposes, and requiring the trustee and advisory board to receive bids and award and enter into a contract for the building of such schoolhouse, and to do all other things necessary in the construction of said school building and the maintenance of school therein, or show cause why the same should not be done. Appellants demurred to the writ on the ground of insufficient facts, but their demurrer was overruled. The issues were closed by the filing of a return and a reply thereto, and upon a trial by the court a finding was made in favor of the relator and for the issuance of a peremptory writ.

The merits of the case are presented by the assignment that the court erred in overruling appellants' demurrer to the alternative writ of mandate. It is made to appear from the alternative writ in this case that the relator and other persons, basing their proceedings upon sections 6590 and 6591, Burns' Ann. St. 1908, petitioned appellant Brandt, as trustee, to erect a new schoolhouse at a designated site, two miles west of the one already established and in use for school purposes. It is manifest that the primary aim of the petitioners was to change the site of the existing school in district No. 5, and to relocate the same at the place named; and the secondary object was the erection of a new building in lieu of the old one, which was deemed unsuitable and inadequate for their needs. The accomplishment of their objects would operate to discontinue the school at the place where it is now located. The procedure prescribed for the relocation of a school site is...

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