State ex rel. Anderson v. Brand

• Decision Date: 05 April 1938
• Docket Number: 26560.
• Citation: 13 N.E.2d 955,214 Ind. 347
• Parties: STATE ex rel. ANDERSON v. BRAND.
• Court: Indiana Supreme Court

13 N.E.2d 955

214 Ind. 347

STATE ex rel. ANDERSON v. BRAND.

No. 26560.

Supreme Court of Indiana

April 5, 1938

Appeal from Wabash Circuit Court; Frank O. Switzer, Judge.

Plummer & Plummer, of Wabash, and Wm. D. Hardy, of Evansville for appellant.

Paul R. Shafer and Thomas F. O'Mara, both to Terre Haute amici curiae.

John F. Kelton and Raymond Brooks, both of North Manchester, for appellee.

FANSLER Judge.

The decision in this case was reviewed by the Supreme Court of the United States, and an opinion was delivered and filed on January 31, 1938. See State ex rel Anderson v. Brand, Trustee, etc., 58 S.Ct. 443, 82 L.Ed. 685.

The opinion of the United States Supreme Court assumes that this court considered only the question of whether the relatrix' contract vested in her tenure rights protected by the Constitution of the United States. It is said in the opinion (58 S.Ct. 443, at page 448): 'But we are of opinion that the petitioner had a valid contract with the respondent, the obligation of which would be impaired by the termination of her employment.' The decision does not discuss or pass upon the nature of the remedy available. The remanding order is as follows (58 S.Ct. 443, at page 450): 'As the court below has not passed upon one of the grounds of demurrer which appears to involve no federal question, and may present a defense still open to the respondent, we reverse the judgment and remand the cause for further proceedings not inconsistent with this opinion.'

The demurrer is for want of facts. One of the specifications is that the plaintiff's action is founded upon a statute which has been repealed. Where a demurrer is sustained by the trial court, this court will affirm if, for any reason, the ruling of the trial court is correct. Poer, Trustee, v. State ex rel. Hinshaw, 1919, 188 Ind. 55, 121 N.E. 83; Bruns v. Cope, 1914, 182 Ind. 289, 105 N.E. 471.

This action is brought in the name of the State, on the relation of Dorothy Anderson. It seeks to mandate the school authorities to reinstate the relatrix as a teacher and continue her in employment. It is not an action by Dorothy Anderson to enforce her contract, but an action to require a public officer to perform a duty required of him by law, which can be maintained only in the name of the State.

In School City of Elwood et al. v. State ex rel. Griffin et al., 1932, 203 Ind. 626, 634, 180 N.E. 471, 474, 81 A.L.R. 1027, 1032, it is clearly recognized that it is because of 'the duty of appellants imposed by the same [the statute] that mandamus is the proper remedy in this case.' Section 1245, Burns' Ann.St.1926, cited in the opinion, is as follows: 'The action for mandate may be prosecuted against any inferior tribunal, corporation, public or corporate officer or person to compel the performance of any act which the law specifically enjoins, or any duty resulting from any office, trust or station.'

In Kostanzer et al. v. State ex rel. Ramsey, 1933, 205 Ind. 536, 547, 187 N.E. 337, 341, 342, it is said: 'If appellee's position is not an office, appellants insist that mandamus is not available for the reason that the granting of mandatory relief results in enforcing a purely contractual right. It is true that mandatory relief against appellants will result in enforcing appellee's rights under her contract; but the duty which the judgment of the trial court compelled appellants to perform was a duty enjoined by statute and not by contract. The contract between appellants and appellee created a relation which entitled appellee to have appellants perform the duty in question; but the duty was not imposed by any provision of the contract.'

It was thought by this court when the above cases were...