State ex rel. Elliott v. Custer
| Decision Date | 03 December 1858 |
| Citation | 11 Ind. 174 |
| Parties | The State on the relation of Elliott and Others v. Custer and Others |
| Court | Indiana Supreme Court |
From the Jefferson Circuit Court.
The judgment is reversed with costs.
J Sullivan, for appellant.
H. W Harrington, for appellees.
Mr Harrington, for the appellees, cited the following authorities:
The defendants might object, ore tenus, to the issuing of a peremptory writ of mandate, which would raise the main question in this case, or the question might be raised upon a demurrer to the alternative writ; for if that writ is insufficient, no peremptory mandate could issue. People v President, &c., Brooklyn, 13 Wend. 130. Upon demurrer by the relator to the return, the defendants may object to any substantial defect in the alternative writ; and so, if issues of fact have been joined, objection of substance can be made, and the relator defeated, at any time before the peremptory writ is actually issued. Commercial Bank of Albany v. Canal Co., 10 Wend. 25.--People v. Supervisors, &c. 14 Barb. (N. Y.) 52.--People v. Supervisors, &c., id. 608.--Ex parte Fleming. 4 Hill 581. The Court will not, by mandamus, attempt to control a discretion given by law to a public officer; but if he refuses to act at all, it will put him in motion, and yet leave him the free use of his discretion. People v. Supervisors, &c., 14 Barb. supra.--People v. Supervisors, &c., 12 Johns. 414.--Hull v. Supervisors, &c., 19 id. 259.--People v. Judges of Dutchess C. P., 20 Wend. 658.--Ex parte Ostrander, 1 Denio 679.
This was a proceeding to obtain a peremptory mandate, to compel the trustees of a township in Jefferson county to desist from the erection of a school-house at a certain site, and to compel them to establish the same at another and different site.
It is alleged in the affidavit, which is in the form of a verified petition for a mandate, that a house, called the "Monroe school-house," had been selected and used as the district school-house, for district number 5, for the year 1855; and that, on the 6th of June, 1856, a meeting of the inhabitants of said district was held at said house, in pursuance of notice, at which, by a vote, the same was designated as the site for said district school, and the trustees informed thereof; and said trustees afterwards, on said day, refused to recognize said selection, but located the said site at another place, distant one and a quarter miles therefrom, to-wit, "on the site adopted by the board, on the 3d of May, 1856, on the south-east quarter of section 21, town. 5, range 10;" and that, upon appeal from said decision to the state superintendent, he reversed the order of the trustees, and directed them to locate at the site selected in 1855, and designated by the meeting aforesaid, which the trustees refuse to do, but are proceeding to erect a house at the point, &c. To this, there was an answer of several paragraphs filed, all of which were afterwards withdrawn, except the second and fifth, which were demurred to, and the demurrer overruled."
The second paragraph avers that, on, &c., at a regular meeting, the trustees, by resolution, located the site of the school-house...
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