State ex rel. Good v. Johns

• Decision Date: 20 March 1908
• Docket Number: No. 21,147.,21,147.
• Citation: 170 Ind. 233,84 N.E. 1
• Parties: STATE ex rel. GOOD v. JOHNS et al.
• Court: Indiana Supreme Court

170 Ind. 233

84 N.E. 1

STATE ex rel. GOOD

v.JOHNS et al.

No. 21,147.

Supreme Court of Indiana.

March 20, 1908.

Appeal from Circuit Court, Boone County; S. R. Artman, Judge.

Proceedings by the state, on the relation of George Good, against Francis M. Johns and others. A demurrer to the application was sustained, and relator appeals. Affirmed.

Shelby & Worley, for appellant. Higgins & Holloman and Terhune & Adney, for appellees.

MONKS, C. J.

This proceeding was brought by the relator to compel the advisory board of Marion township, Boone county, by writ of mandamus to perform an alleged duty. A demurrer for want of facts to the application and alternative writ of mandamus was sustained, and, the relator refusing to amend, judgment was rendered in favor of appellees. The action of the court below in sustaining said demurrer is assigned as error.

The General Assembly by sections 8085a-8085 l, Burns' Ann. St. 1901, Acts 1899, p. 150, c. 105, Acts 1901, p. 415, c. 185; sections 6001a, 8081a, Burns' Ann. Supp. 1905, Acts 1903, p. 431, c. 229, and Acts 1905, p. 33, c. 31, created the township advisory boards and gave them their powers. Advisory Board, etc., v. State, 166 Ind. 237, 76 N. E. 986;Advisory Board v. State, 164 Ind. 295, 301, 73 N. E. 700. As it is proposed in this case to erect a graded school building for the use and at the expense of one school township, the proceeding is not governed by the provisions of the statutes concerning the erection of joint school buildings, or joint graded school buildings by more than one school corporation, or concerning the erection of a graded high school building by a single township. The alternative writ of mandate commanded that said advisory board “proceed without delay and make the necessary and proper appropriation *** to pay the expenses of constructing a new graded school building,” or that said advisory board “proceed without delay and make and enter of record, as required by law, an order authorizing and directing the trustee of said township to issue township warrants or bonds for the purpose of borrowing money and creating a fund with which to pay the expenses of building said new graded school building,” or “show cause why the same should not be done.” It will be observed that said writ required said advisory board to make an appropriation to pay the expense of constructing said building, or to make an order authorizing the township trustee to issuetownship warrants or bonds to borrow money to pay the expense of constructing said building.

It has been held that an alternative writ which commands an officer to do several acts in the alternative, as to pay a judgment, or to issue bonds for its payment or to levy a tax for its payment, the acts being distinct in their nature and the writ designating neither one in particular, a motion to quash the writ will be sustained. This is because the mandatory clause of the writ should expressly and clearly state the precise thing which is required of the defendant. High, Extraordinary Legal Res. § 539; 2 Spelling, Inj. & Ext. Rem. § 1698; Tapping on Mandamus, 327; State v. City of Milwaukee, 22 Wis. 397;State v. Trustees, etc., 61 Mo. 155, 159;People v. Brooks, 57 Ill. 142. The rule is well settled in this state that including in the mandatory clause of the alternative writ a command for greater relief than the relator is entitled to under the allegations of the petition and writ renders the same insufficient as against a demurrer or a motion to quash. State v. Connersville, etc., Co., 163 Ind. 563, 568, 71 N. E. 483, and cases cited; Applegate v. State, 158 Ind. 119, 123, 63 N. E. 16, and authorities cited; Trant v. State, 140 Ind. 414, 421, 39 N. E. 513, and authorities cited; High, Extraordinary Legal Rem. §§ 539, 548; Tapping on Mandamus, 327. To render the application and alternative writ sufficient to withstand a demurrer for want of facts, it must also appear therefrom that it is the officer's duty, and that he has the power, to perform the act sought to be enforced. Advisory Board v. State, 166 Ind. 237, 76 N. E. 986;Weir v. State, 161 Ind. 435, 68 N. E. 1023;Logansport, etc., R. Co. v. Groniger, 51 Ind. 383;Hoxie v. Somerset County, 25 Me. 333;Bangor v. Penobscot County, 87 Me. 294, 32 Atl. 903;Houston, etc., R. Co. v. Randolph, 24 Tex. 317;Arberry v. Beavers, 6 Tex. 457, 55 Am. Dec. 791;Watkins v. Huff (Tex. Civ. App.) 63 S. W. 922, 924, and cases cited; 2 Spelling, Inj. & Ext. Rem. § 1645; 26 Cyc. 433-437, and note 22, p. 437.

It was said in Hoxie v. Somerset County, supra, on page 334: “A writ of mandamus to an inferior court will not be granted unless the petition alleges facts sufficient, if proved, to show that such court has omitted a manifest duty. It must contain not only the affirmative allegation of proceedings necessary to entitle the party to the process prayed for, but it must also be averred that other facts, which other facts which would justify the omission complained of, do not exist.” When the alleged duty is in reference to the appropriation or payment of money by a public officer or body, facts must be averred showing that there is money which could be legally appropriated for that purpose. Advisory Board, etc., v. State, 166 Ind. 237, 239, 76 N. E. 986;Board, etc., v. State, 156 Ind. 550, 554, 555, 60 N. E. 344; Com'rs of Shawnee Co. v. State, 42 Kan. 327, 22 Pac. 326;State v. Somerset, 44 Minn. 549, 47 N. W. 163;Hall v. People,...