Poer v. State ex rel. Hinshaw
| Decision Date | 13 December 1918 |
| Docket Number | No. 23389.,23389. |
| Citation | 121 N.E. 83,188 Ind. 55 |
| Parties | POER v. STATE ex rel. HINSHAW. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Henry County; Fred C. Gause, Judge.
Mandamus by the State, on the relation of Arthur M. Hinshaw, against Otho Poer, Trustee of Spiceland School Township, Spiceland Township, Henry County, Indiana. Judgment for relator, and defendant appeals. Reversed, with instructions.
W. O. Barnard and G. M. Barnard, both of Newcastle, for appellant.
Forkner & Forkner, of Newcastle, for appellee.
Relator brought action against appellant to mandate him to transfer relator's child to a private school. The complaint alleges, in substance, that relator was a resident, citizen and taxpayer of the township on the 12th day of September, 1917; that appellant was on that date the elected and qualified trustee of the school township; that relator's son was born on the 20th day of January, 1903, and resided in said township with relator; that his son had finished the prescribed course of study in the eight grades taught in the public schools of the township and was eligible to a public high school of the county; that there were no high schools in said township and none nearer than Lewisville and Newcastle in adjoining townships, a distance of five to eight miles; that the transfer of relator's child to some recognized high school was necessary, or his education in such grades would be denied him; that there was and is in the town of Spiceland, within said township, an academy known as Spiceland Academy, kept and maintained as a private school; that said private school is ready, able, and willing to receive relator's child under the terms provided for the transfer of pupils from one school corporation to another; that the course of study in this private school is the same as that taught in the high schools of said county; that said school and the course of study therein had been approved by the state board of education; that relator's son can better be accommodated in said academy than at any other school, and at less expense; that relator and his child live within two miles of said private school, much nearer to it than any other high school; that relator demanded of appellant on the 12th day of September, 1917, that he transfer relator's son to this private school; that said trustee refused to make said transfer.
Appellant's demurrer to the complaint is on the ground that it does not state facts sufficient to constitute a cause of action. The memorandum attached to the demurrer is as follows:
“The defendant, as trustee of the school township, has no authority in law to transfer pupils eligible to high school privileges to any other than a public high school.
That any payment of public money to Spiceland Academy as tuition for the son of the relator would be illegal and void, and for this reason he could not make the transfer requested by said relator.
That Spiceland Academy is a private and denominational school and same being under the control of Spiceland Monthly Meeting Society of Friends, which elects the trustees for said academy, and that said trustee has no right or authority in law to transfer any pupil eligible to a high school to such a school as said academy.”
This demurrer was overruled. Appellant refusing to plead further, judgment was rendered.
The law, supposed to be invoked by the facts in the complaint, is contained in the following sections of the statute:
(1) “Whenever any child, resident in one school corporation of the state, may be better accommodated in the school of another school corporation, the school trustee, board of school trustees or commissioners of the school corporation in which such child resides shall, upon application of the parent, guardian or custodian of such child, made at any time, grant an order of transfer which shall entitle such child to attend the schools of the corporation to which such transfer is made under the conditions hereinafter prescribed: Provided, that in determining whether a child can be better accommodated in the schools of another school corporation than that in which such child resides, such matters as the proximity of the schools of the township and city to the residence of such child desiring the transfer; the kind and character of the roads to each; the...
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...is a impermissible prior restraint. Indiana has long adhered to the doctrine of judicial restraint. See Poer v. State ex. rel. Hinshaw, 188 Ind. 55, 121 N.E. 83, 84 (1918) (a constitutional question will not be anticipated in advance of the necessity of deciding the constitutional issue). O......
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Daugherty v. Allen, 30A01-9909-CV-309.
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