Carnahan v. State ex rel. Eads

• Decision Date: 22 June 1900
• Docket Number: 18,839
• Citation: 57 N.E. 717,155 Ind. 156
• Parties: Carnahan, Trustee of Washington School Township of Daviess County, Indiana, v. The State, ex rel. Eads et al
• Court: Indiana Supreme Court

57 N.E. 717

155 Ind. 156

Carnahan, Trustee of Washington School Township of Daviess County, Indiana, v. The State, ex rel. Eads et al

No. 18,839

Supreme Court of Indiana

June 22, 1900

From the Daviess Circuit Court.

Affirmed.

W Heffernan and E. Mattingly, for appellant.

M. S Hastings, J. G. Allen and J. C. Billheimer, for appellees.

OPINION

Baker, C. J.

Relators successfully prosecuted this action for a mandate to require appellant school trustee to maintain a school in schoolhouse number ten of his township as now located. The errors assigned, which are predicated upon the conclusions of law on the facts specially found by the court in reference to defenses in abatement and in bar, and upon the refusal of a new trial, present but one question, and that is the effect of an order made in 1898 by the county school superintendent for the removal of the schoolhouse from its present site.

Prior to the adoption of the act of February 7, 1893 (Acts 1893 p. 17, §§ 5920a-c Burns 1894), the trustee, if acting in good faith, had an unlimited discretion in regard to the removal of schools, subject only to an appeal to the county superintendent; the patrons or voters of the school district had the right to petition the trustee for or against the removal, but their desires were only advisory to the trustee; and, if they were dissatisfied with the trustee's decision, they could appeal to the county superintendent, who, if acting on the appeal in good faith, exercised an unlimited and final discretion respecting the removal. §§ 5920, 5986, 6028 Burns 1894, §§ 4444, 4499, 4537 R. S. 1881 and Horner 1897; Crist v. Brownsville Tp., 10 Ind. 461; Trager, Tr., v. State, 21 Ind. 317; Koontz v. State, 44 Ind. 323; Braden v. McNutt, Tr., 114 Ind. 214, 16 N.E. 170; Knight, Tr., v. Woods, 129 Ind. 101, 28 N.E. 306; Henricks, Tr., v. State, 151 Ind. 454, 50 N.E. 559.

Under the act of 1893 the change of a schoolhouse site can be effected only by the concurrent desires and action of three parties, (1) a majority of the patrons of the school, (2) the trustee of the school township, and (3) the county superintendent of schools. The wishes of the first two parties are to be expressed by signing and presenting a petition to the county superintendent, and of the third by an order for or against the change. The trustee is required to post notices of the time when the petition will be presented to the superintendent. This is evidently for the benefit of the patrons of the school who do not sign the petition. The act further requires that, before the superintendent expresses his opinion on the propriety of the change by making an order, satisfactory proof shall be made to him that a majority of the patrons are petitioners for the change. The plain purpose of this requirement is to prevent the removal's being made if in fact a majority of the patrons are opposed. Kessler, Tr., v. State, 146 Ind. 231, 45 N.E. 102.

In this case, seven persons signed the petition that was presented to the superintendent. At the same time, and before the superintendent acted upon the petition, seventeen persons, of whom two had signed the petition, presented to the superintendent their written protest against the change. The superintendent ordered the removal. Appellant insists that this action by the relators is a collateral attack upon a judgment. That the superintendent had the power to determine whether or not the trustee and a majority of the patrons desired the change and had properly expressed their wishes and that the correctness of the superintendent's action can not be inquired into collaterally. Whether or not the site of a schoolhouse should be changed is purely an administrative question. It is of the same nature now that it was before the act of 1893...