Follett v. Sheldon

• Decision Date: 10 October 1924
• Docket Number: Nos. 24078,24079.,s. 24078
• Citation: 195 Ind. 510,144 N.E. 867
• Parties: FOLLETT v. SHELDON, County Treasurer, et al. SHATENBERGER v. SAME.
• Court: Indiana Supreme Court

195 Ind. 510

144 N.E. 867

FOLLETT

v.SHELDON, County Treasurer, et al.^*

SHATENBERGER

v.SAME.

Nos. 24078, 24079.

Supreme Court of Indiana.

Oct. 10, 1924.

Appeal from Circuit Court, De Kalb County; Dan M. Link, Judge.

Actions by Elmer Follett and others and by Charles L. Shatenberger and others against Fred W. Sheldon, Treasurer of Steuben County, and others. Judgments for defendants, and plaintiffs appeal. Affirmed.Arthur L. Gilliom, of South Bend, for appellants.

Best & Yotter, C. C. Carlin and Maurice McClew, all of Angola, and Leonard, Rose & Zollars, of Ft. Wayne, for appellees.

GAUSE, J.

Most of the questions involved in each of the above cases are identical, calling in question the validity of the same township bonds, and, as the two cases were combined for the purposes of oral argument, they may be covered by one opinion.

The action in cause No. 24078 was brought by appellant Elmer Follett on behalf of himself and 58 other named residents and taxpayers of the incorporated town of Fremont, in Fremont township, Steuben county, to enjoin the county treasurer from collecting taxes levied to pay certain bonds issued by both the civil township and school township of Fremont, for the purpose of erecting a schoolhouse in the town of Fremont, and asking that the township officers be enjoined from making any future levies for such purpose.

The action in cause No. 24079 was brought by the appellant Charles L. Shatenberger for himself and 49 other property owners in the township of Fremont, asking the same relief as in the first-named cause.

The court made a special finding of fact in each case and stated as its conclusions thereon that appellants were not entitled to recover, and that appellees should recover their costs. The special findings in both cases are identical, and the following is a condensed statement of the facts as found:

That within the township of Fremont, in Steuben county, there is, and has been for many years, a civil town known as the town of Fremont; that for many years, until January 26, 1920, there was within said town a school corporation known as the school town of Fremont, the boundaries of which were coterminous with the civil town; that the board of trustees of said civil town, during all of said time, consisted of three members, and the board of school trustees of said school town, during all of said time, likewise consisted of three members; that on said January 26, 1920, and for a long time prior thereto, the board of school trustees of said school town were C. W. Dally, who was the president of said board, and Ralph C. McIlhenie, who was the secretary thereof; that some time prior to January 26, 1920, Josiah P. Albright was the third member of said board, but that prior to said date he had removed from said town and vacated his office, and his successor never was elected; that on said date and for a long time prior thereto the defendant James O. Worthington was, and still is, the trustee of said Fremont township and George Griffith, R. L. Wade and B. F. Chapin were, and still are, members of the advisory board of said township; that in the year 1912 a joint high school was established by said school town and said school township for the accommodation of high school students of said two corporations, and said corporations constructed within the corporated limits of said town a joint high school building, which was maintained as a joint high school until January 26, 1920; a part of the real estate upon which said building was erected was owned by said school township, and part by said school town; that on January 26, 1920, said school town was indebted in the sum of $2,570.70, which was represented by outstanding bonds and interest thereon, which had been issued to aid in the construction of said joint high school, and that said school town had no other indebtedness on said date, except such as might thereafter become due to teachers employed in said joint high school; that during the whole of the year 1920 the population of the town of Fremont, as shown by the last preceding census, was less than 2,000; that on January 22, 1920, at a meeting of the board of trustees of said town duly had and held, the following resolution was unanimously passed by said board:

“Whereas, it is understood and agreed by and between the town board of trustees of the town of Fremont and James O. Worthington, trustee of Fremont township: Now, therefore, be it resolved by the board of trustees of the town of Fremont, Ind., that said town of Fremont abandon and discontinue its management and control of the public schools within said incorporated town and abolish the board of school trustees therein, upon agreement with the township trustee of Fremont township, in which said township said school is located, to take over the school property of said town as provided by law, in the Acts of 1919, p. 818.”

That the board of school trustees of said school town and the said Worthington, trustee of said school township, attended said meeting of said board of trustees when said resolution was adopted, and it was adopted with the consent and approval of all the members of said board of school trustees, and that at said meeting said Worthington, as said trustee of said school township, agreed to take over said schools within said school town, and thereafter to conduct the same as schools of said school township, and to assume to pay all school indebtedness against said school town; that said agreement was not reduced to writing at that time; that at said meeting, and by the passage of said resolution, and in the making of said agreement between the board of trustees of said town and board of trustees of said school town and the said Worthington, trustee of said school township, said town and said school town abandoned and discontinued its management and control of said public school within said incorporated town.

That on the 26th day of January, 1920, the board of trustees of said town of Fremont again met in a meeting duly had and held, which meeting was attended by the board of trustees of the school town of Fremont, and also by James O. Worthington, as trustee of said school township of Fremont. Said board of trustees of said school town duly held a meeting of said board at the same time and place as the meeting held by said board of trustees of said civil town. Said meeting was likewise attended by H. Lyle Shank, county superintendent of schools of said Steuben county, Ind., and by Irvin W. Pence, auditor of Steuben county, Ind., and Ed George, county assessor of Steuben county, Ind. That thereupon said county superintendent, county auditor, and county assessor filed a written appraisement and valuation of the school buildings, property, and equipment of said school town, fixing the valuation thereof at the sum of two thousand five hundred seventy dollars and seventy cents ($2,570.70), which said written appraisement and valuation was duly filed with said board of trustees of said civil town and the board of trustees of said school town; and thereupon the board of trustees of said school town delivered manual possession of all the property of said school town, consisting of its real estate, school buildings, and equipment, to the said James O. Worthington, as trustee of said Fremont school township, and the board of trustees of said civil town executed and delivered to the said Fremont school township a deed of conveyance of all the real estate owned by said school town, and, in consideration of the execution of said deed of conveyance and transfer of all of said school property to said Fremont school township, by the board of trustees of said town of Fremont and the board of trustees of said school town of Fremont, the said James O. Worthington as trustee of Fremont school township, for and on behalf of said township assumed, and agreed to pay, all of the indebtedness of said school town of every kind and nature whatsoever.

At said time the trustees of said school town of Fremont delivered to the said Worthington as trustee of said Fremont township all of their books and records, amongst said records being their minute book, upon page 2 whereof was set out a detailed statement and record of all indebtedness of said school town, said statement setting forth the date of all bonds outstanding, and all other evidence of indebtedness outstanding against said school town which was assumed by said school township, the denominations thereof, the rate of interest they bore, when the same became due, where payable, and when and where the interest thereon was payable; that thereupon said school township accepted all of said school property and records, and assumed, and ever since has held, the sole and exclusive possession of all of said school property, including said real estate, school buildings, equipment, and said records for the uses and purposes of said school township.

That on said date the board of trustees of said school town had certain school revenues on hand, which were turned over to the said trustee of said school township; that immediately, upon said execution of said conveyance by the board of trustees of said town of Fremont, and the transfer of said school property by the trustees of said town by the board of trustees of said school town, the said Worthington, being trustee of said school township, assumed control over all the schools conducted within the corporated limits of the town of Fremont, and has ever since conducted said schools as part of the schools of said school township, including said high school, and that since that time neither said civil town nor school town has exercised any control or jurisdiction over said schools or school property; that on said date one of the school districts in said school township was known as district No. 4, and there was a public schoolhouse in said district during the school year of 1920, and until the destruction of said schoolhouse, as...