Flora v. Brown
| Decision Date | 28 March 1923 |
| Docket Number | 11,593 |
| Citation | 138 N.E. 767,79 Ind.App. 454 |
| Parties | FLORA, TRUSTEE, v. BROWN |
| Court | Indiana Appellate Court |
From Howard Circuit Court; B. C. Moon, Special Judge.
Action by John C. F. Brown against Ora S. Flora, trustee. From a judgment for plaintiff, the defendant appeals.
Reversed.
Wolf & Barnes, C. W. Roll, Bell, Kirkpatrick, McClure & Elliott and D. L. Bock, for appellant.
Wills & Cripe and Joseph C. Herron, for appellee.
The appellant is trustee of Ervin township, Howard county Indiana, and the appellee is a resident freeholder and taxpayer of said township. By this action the appellee sought to enjoin the appellant from selling the bonds of said township for the purpose of procuring funds with which to erect a joint high school and elementary school building in said township, and to enjoin the erecting of such building.
The appellant's demurrer to the complaint was overruled after which he answered by general denial. Upon the trial the court made a special finding of the facts and stated its conclusions of law thereon favorable to the appellee, and entered its decree accordingly, granting the relief prayed.
The appellant first presents as error the action of the court in overruling his demurrer to the complaint, but, as the court found the facts herein specially, and stated its conclusions of law thereon, this alleged error becomes of no controlling force and need not be considered.
It is next urged that the court erred in its conclusion of law upon the facts found.
It is not necessary that each and all of the findings, as made by the court, be set out in this opinion, and we shall only refer to such of said findings as are deemed necessary to a proper understanding of this case.
It appears from such findings that there was not, in Ervin township, any high school, or any joint high school and elementary school, and that, at the time in question, said township had more than $ 1,250,000 of taxable property for school purposes.
It is provided in § 1, of Acts of 1913, (Acts 1913 p. 331 § 6584a Burns 1914) that the township trustee, when the conditions in said act specified exist, may establish and maintain therein a high school, or a joint high school and elementary school. The four requisites to give to the trustee such authority are: assessed value for taxable purposes of $ 600,000; no high school in township; no city or town in the township maintaining a high school; eight or more resident graduates from the elementary schools in each of the preceding two years. Here, under the conditions named, is the grant of the authority to build, but the exercise of this power is left to the discretion of the trustee. In the concluding part of said section it is provided, that if a majority of the parents, guardians, heads of families, or persons having charge of children, who were enumerated for school purposes, etc., shall petition the trustee to establish and maintain in such township a high school, or a joint high school and elementary school, said trustee shall establish and maintain such a school as petitioned for. This latter part of said section, the conditions being fulfilled, leaves no discretion with the trustee; it is now his duty to act in accordance with such petition, and the performance of this duty may be enforced by mandate.
Section 2 of said act of 1913 made it the positive duty of the township trustee, upon the fulfilment of the conditions therein specified, to build and maintain in such township, a high school. This section was amended in 1917 (Acts 1917 p. 677), and was again amended in 1921, (Acts 1921 p. 322, § 6584b Burns' Supp. 1921) so that the provisions of said section are now as follows: That in each township in this state, (a) having an assessed valuation of more than $ 600,000 of taxable property, and wherein (b) there is not now established a high school in such township, or (c) in any town within such township, and where (d) there is no high school within three miles of any boundary line of such township, and wherein (e) for each of the two years last past there have been eight or more graduates of the township elementary schools residing in such township, the township trustee shall establish and maintain therein a high school and employ competent teachers therefor.
The latter part of said amended § 2 was intended to meet other conditions and its provisions are as follows: That, in each township having (a) an assessed valuation of more than $ 1,250,000 of taxable property, whenever (b) one-third, or more, of the parents, guardians, etc., living in such township and having charge of children who were enumerated for school purposes, etc., shall petition the trustee of said township to establish...
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