Kerr v. Perry Sch. Tp.

• Decision Date: 11 March 1904
• Citation: 70 N.E. 246,162 Ind. 310
• Parties: KERR, County Auditor, v. PERRY SCHOOL TP.
• Court: Indiana Supreme Court

162 Ind. 310

70 N.E. 246

KERR, County Auditor,

v.PERRY SCHOOL TP.

Supreme Court of Indiana.

March 11, 1904.

Appeal from Circuit Court, Monroe County; Jas. B. Wilson, Judge.

Action by Perry school township against Samuel M. Kerr, as auditor, etc., Monroe county. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Henry A. Lee and Duncan & Batman, for appellant. Jos. E. Henley, for appellee.

JORDAN, J.

Action in the lower court by Perry school township, Monroe county, Ind., to enjoin appellant, the auditor of said county, from drawing a warrant on the treasurer thereof in favor of the school city of Bloomington, to be paid out of the special school fund apportioned to said township. The money for which appellant was about to draw the warrant was for tuition due to the school city of Bloomington on account of the transfer of certain children of school age of appellee township, transferred for school purposes to the school city of Bloomington, under and in pursuance of an act of the Legislature approved March 11, 1901 (Acts 1901, p. 448, c. 204). Appellant unsuccessfully demurred to the complaint, and, on his refusal to further plead, judgment was rendered enjoining him from drawing the warrant in question, as prayed for in the complaint of appellee. The error assigned in this appeal is that the court erred in overruling the demurrer to the complaint.

The first section of the above-mentioned act provides: “That if any child resident in one school corporation of the state may be better accommodated in the schools of another school corporation the parent, guardian or custodian of such child may at any time ask of the school trustee, board of school trustees or commissioners of the school corporation in which such child resides an order of transfer, which, if granted, shall entitle such child to attend the schools of the corporation to which such transfer is made, under the conditions hereinafter prescribed: provided,” etc.

Section 2 of the act provides as follows: “If such transfer is granted, the school trustees, or board of school trustees, or commissioners of the school corporation in which such child resides, shall pay out of the special school fund to the school trustee, board of school trustees or commissioners of the school corporation to which such child is transferred, as tuition for such child, an amount equal to the annual per capita cost of education in the corporation to which said child is transferred; or such a part of it as the term of enrollment of said child in the schools of the creditor corporation may require; provided, that the per capita cost in high schools shall be calculated upon the basis of expenditures for high school purposes, and the per capita cost in grade schools shall be calculated upon the basis of expenditures for the schools below the high school: provided, that the rate of tuition per month shall not exceed two dollars in the high school, or one dollar and fifty cents in the grades. In calculating the per capita cost, only expenditures for the current year, not including permanent improvements and additions, shall be counted.”

Section 4 (page 449) provides that the indebtedness for tuition between school corporations under the provisions of the act shall be due and payable February 1st and July 30th in each year. It is further provided in said section that: “If any school trustee or board of school trustees or commissioners refuse to pay any sums claimed by another corporation as due, the creditor corporation shall make a written statement of the case to the county auditor, who shall have power to hear and determine the matter. If he hold that a given sum is due the complaining corporation, he shall, in the next semi-annual distribution of school revenues, withhold such sum from the amount otherwise due the debtor corporation. Provided,” etc.

The complaint, among other things, alleges that certain children therein named, prior to the school year 1901-02, were within school age, and residents of Perry township, and were by the proper authority transferred to the school city of Bloomington; “that on the 17th of October, 1902, there was filed, in the office of the auditor of Monroe county, a statement of the president and secretary of the board of trustees of the school city of Bloomington of the annual per capita cost of education in the school city of Bloomington for school year 1901-1902 for the high school in said city, and also for the grades in the schools of said city, and also a statement of the money due to the school corporation July 1, 1902, on transferred children for school purposes from the corporation of Perry school township, which statement claimed a balance due from plaintiff of $235.25;” and asking that the auditor hear and determine the facts, and...