Brumfield v. State ex rel. Wallace, No. 25836.

• Docket Nº: No. 25836.
• Citation: 206 Ind. 647, 190 N.E. 863
• Case Date: June 21, 1934

206 Ind. 647
190 N.E. 863

BRUMFIELD
v.
STATE ex rel. WALLACE.

No. 25836.

Supreme Court of Indiana.

June 21, 1934.

Appeal from Gibson Circuit Court; Claude A. Smith, Judge.

Action by the State, on the relation of Grace Wallace, in mandamus against John A. Brumfield, trustee. Judgment for relatrix, and defendant appeals.

Affirmed.

[190 N.E. 864]

Sanford Trippet, of Princeton, for appellant.

Embree & Baltzell, of Princeton, for appellee.

MYERS, Judge.

We construe the complaint at bar as proceeding upon the theory of an action in mandamus by relatrix to compel appellant to recognize her as a permanent teacher of Union School township, Gibson county, Ind. The complaint was in one paragraph to which a demurrer was filed challenging the jurisdiction of the court, (1) over the person of the defendant; (2) over the subject-matter of the action; and (3) for insufficient facts to state a cause of action. The court overruled the demurrer and appellant answered in three paragraphs, the first a general denial, and two affirmative paragraphs. The issues, closed by a reply in general denial, were submitted to a jury, which returned a general verdict for appellee.

Appellant's motion for a new trial and his motion in arrest of judgment were each overruled with an exception to each ruling. Thereupon, the court entered judgment that a peremptory writ of mandate issue to the appellant commanding him to recognize and treat a certain contract as one continuing for an indefinite time, and to recognize and treat relatrix as a permanent teacher of Union School township and entitled to all the benefits of chapter 97, Acts of the General Assembly approved March 8, 1927 (Burns' Supp. 1929, § 6967.1 et seq.). From that judgment appellant appealed to this court, assigning as errors the overruling of his demurrer to the complaint, the overruling of his motion for a new trial, and the overruling of his motion in arrest of judgment.

The questions here for decision on the demurrer to the complaint are also otherwise saved under other formulas. In so far as it is possible so to do, they will be considered as presented by the demurrer to the complaint.

It should be kept in mind that the instant case does not involve the resignation or dismissal of a teacher, nor the cancellation of a teacher's indefinite contract under the Teachers' Tenure Law, section 6967.2, Burns' Supp. 1929; Acts 1927, p. 259, c. 97, § 2, nor is there any claim of surplus tenure teachers in the township. This controversy upon its merits before the trial court was: Did appellant have a contract with Union School Township Corporation, Gibson County, Ind., by virtue of which she became a tenure teacher?

The complaint, in part, alleged that for five successive years immediately prior to the year 1927 appellee served under contract as a teacher for the school corporation of Union School township, Gibson county, Ind., and in the month of August she entered into a teacher's contract for further services with the corporation, which is made a part of the complaint by exhibit; that she served as teacher for the corporation for the school year of 1927-1928, and that on the opening of school for the year 1928-1929, pursuant to her contract with the corporation, she presented herself at the room taught by her the preceding year for the purpose of carrying out her contract, whereupon appellant served upon this appellee the following written notice: “J. A. Brumfield, Trustee Union Township, Sept. 10, 1928. Fort Branch, Ind. Miss Grace Wallace, Ft. Branch, Indiana. You are notified to leave the Marlette grade building and grounds immediately and remain away. J. A. Brumfield, Trustee.” “That upon receiving said notice aforesaid, this relator left said school building and said school premises, but still holds herself ready and willing to perform her part of said contract as above set out.”

It is true the complaint fails to allege facts showing that appellee had exhausted her remedy by an appeal from the decision of the trustee to the county superintendent. We infer from appellant's argument that he is under the impression that this omission in the complaint, as also appellee's failure to prove that she was aggrieved by the final decision of the school trustees, a question presented by appellant in his motion for a new trial, was not only essential to a good complaint, but on the trial must be proved as a jurisdictional fact. Appellant, in substance, contends that since the court takes judicial knowledge of the statutes of this state, and it must know that the employment of school teachers is a school matter primarily for the decision of the township trustee, therefore, as a necessary sequence, the court could not acquire jurisdiction over the person of appellant or of the subject-matter of this action, for the reason such decision of the trustee may be questioned only by appeal to the county superintendent.

[190 N.E. 865]

To sustain his conclusion he cites sections 6790, 6509, Burns' 1926; State ex rel. Dayton Gravel Road Co. v. Board of Commissioners (1892) 131 Ind. 90, 30 N. E. 892;State ex rel. v. Schmetzer (1901) 156 Ind. 528, 60 N. E. 269;Poer v. State ex rel. (1918) 188 Ind. 55, 121 N. E. 83; and 18 R. C. L. p. 133, § 46. We will notice only the sections of the statute and our own cases.

The State ex rel. Dayton Gravel Road Co. Case, supra, involved the purchase of a gravel road and the issuing of county bonds to pay for the same. The question was whether or not, under the facts of that case, a mandamus proceeding would lie to compel the board of commissioners to render a certain judgment on a petition theretofore considered by such board requiring judicial action. The trial court denied the writ and this court affirmed that judgment on the theory: (1) That the board of county commissioners is a court, and having entered its conclusion of record, a proceeding in mandamus will not lie to compel it to render a different judgment; and (2) that the relator had an adequate legal remedy by an appeal from the judgment of the board.

The Schmetzer Case, supra, was an action by relator, a voluntary corporation organized for the care and education of orphan children, to compel a township trustee to send its wards to a certain school. The schoolhouse theretofore attended by these children was destroyed by fire and the trustee assigned them to a school in the township which was more distant from relator's home than another which relator sought to have them attend. It was held that section 164, Acts 1865, c. 1, p. 3, section 6790, supra, controlled, and the action in mandate would not lie.

In the Poer Case, supra, the question was whether the township trustee had authority to transfer a child who had finished the eighth grade in a township in which no high school was maintained to a private school teaching all the branches of study taught by the high schools of the county. The decision in that case rested upon section 1 as amended, Acts 1909, p. 173, c. 72; section 3, Acts 1901, p. 448, c. 204; sections 6449, 6451, Burns' 1914. Section 6449 was repealed by section 4, Acts 1921, p. 743, c. 253, and section 6451 is section 6921, Burns' 1926. It was a high school transfer case, and the sections of the statute then considered were a part of the procedure in such cases.

We have given a brief outline of the last three cases only for the purpose of indicating the ultimate objects to be attained in each of them, and sufficient, we think, as a basis for differentiating them from the present case.

Directing our attention to sections 6509 and 6790, supra, and conceding that they...