Gruber v. State, ex rel. Welliver

• Decision Date: 21 September 1929
• Docket Number: 25,162
• Citation: 168 N.E. 16,201 Ind. 280
• Parties: Gruber et al. v. State, ex rel. Welliver
• Court: Indiana Supreme Court

168 N.E. 16

201 Ind. 280

Gruber et al. v. State, ex rel. Welliver

No. 25,162

Supreme Court of Indiana

September 21, 1929

1. SCHOOLS AND SCHOOL DISTRICTS---Mandate to Establish High School---Plea in Abatement---Insufficient on Demurrer.---In an action of mandate against a township trustee and the advisory board of the township to compel the defendants to establish and maintain a joint high and elementary school pursuant to the provisions of 6843 Burns 1926, a plea in abatement alleging that no request had been made for an appropriation to meet the expense of establishing such school was insufficient on demurrer, where the complaint alleged facts showing that an appropriation was not necessary. p 282.

2. MANDAMUS---Mandate of Officers---Performance of Act Expressly Enjoined or Resulting from Office.---An officer may be mandated to perform an act which the law specifically enjoins or to perform any duty resulting from his office. p. 284.

3. MANDAMUS---Schools---Joint High and Elementary---Trustee's Duty when Proper Petition Filed---Mandate to Compel Performance.---Where a proper petition to establish a joint high and elementary school has been filed with the trustee of a township that comes within the provisions of 6843 Burns 1926, the trustee has no alternative but to proceed to establish and maintain such school, and, on his refusal to do so, may be compelled by mandate to act in accordance with the petition, as the statute is mandatory and the trustee has no discretion in the matter. p. 285.

4. SCHOOLS AND SCHOOL DISTRICTS---Appeals to County Superintendents---Statute Repealed as to Establishment of Schools under 6843 Burns 1926.---That part of 6790 Burns 1926 authorizing appeals from the decisions of township trustees relating to school matters to the county superintendents, in so far as it applies to the establishment and maintenance of schools under 6843 Burns 1926, was repealed by that section p. 285.

From Jackson Circuit Court; W. W. Thornton, Special Judge.

Action of mandate by the State on relation of Raymond Welliver and others against Lyman M. Gruber, as trustee of Redding School Township, and others, members of the advisory board, to compel the defendants to establish and maintain a joint high and elementary school in the township. From a judgment for relator, the defendants appealed.

Affirmed.

Montgomery & Montgomery and Edward P. Elsner, for appellants.

Seba A Barnes, for appellee.

OPINION

Gemmill, C. J.

In the circuit court, this action was brought for mandate, as provided in Acts 1915, ch. 87, § 1224 Burns' Supp. 1921, § 1244 Burns 1926, by the relators to compel appellant, Lyman M. Gruber, as trustee, and appellants Edmund J. Miller and John Zimmerman, as members of the Township Advisory Board of Redding Township, in Jackson County, Indiana, to establish and maintain a joint high school and elementary school in said township, as petitioned for by the relators pursuant to Acts 1921, ch. 130, § 6584b Burns' Supp. 1921, § 6843 Burns 1926.

This is the second appeal of this cause. In the first and former appeal, the complaint consisted of two paragraphs, to both of which appellants' demurrers had been overruled, and the cause was appealed on these rulings. On said appeal, the court held the second paragraph of complaint sufficient as against appellants' demurrers; but held the appellants' demurrers to said first paragraph of complaint should have been sustained; and, for this error, the cause was reversed and remanded. Gruber, Trustee, v. State, ex rel. (1925), 196 Ind. 436, 148 N.E. 481. After the cause was remanded to the lower court, the first paragraph of complaint was dismissed, and no amendment to or change in said second paragraph of complaint was made.

Issues of law are presented by the demurrer to the answer in abatement of appellants Miller and Zimmerman, as members of the township advisory board, by the demurrer to the first and second paragraphs of answer in bar of appellants Miller and Zimmerman, as members of the township advisory board, and by the demurrer to the second paragraph of the separate answer of appellant Gruber as trustee. Each demurrer to the several answers of appellants was sustained, and appellants severally excepted, and, declining to plead further, judgment was rendered against them.

The answer in abatement of Miller and Zimmerman, as members of the township advisory board, to the second paragraph of complaint, alleged, in substance, that no itemized statement and estimate of the cost of establishing and maintaining the proposed school, or estimate of the cost of erecting a school building to house such school, had been filed with said advisory board, and no request had been made for an appropriation.

In the former appeal to this court, Gruber, Trustee, v State, ex rel., supra, this court said: "The memorandum attached to each of the demurrers to this [second] paragraph proceeded upon the theory that the relators were seeking to compel the respondents to construct a school building. While the relief asked by relators, if granted, might result in a necessity for a more commodious building for school purposes than the trustee now has at his command, yet that is a matter entirely for the trustee and the advisory board, and foreign to the gist of this action." In that appeal, this court also said: "It being the imperative duty of the trustee to establish and maintain, within reasonable needs, a school as prayed by the relators, and it appearing that the advisory board, to some extent, was and is antagonistic to the proposed reorganization of its township schools, it was proper to join the members thereof as defendants upon the theory of securing complete and adequate relief." It appears from the...