State ex rel. Simpson v. Meeker

• Citation: 105 N.E. 906,182 Ind. 240
• Decision Date: 02 July 1914
• Docket Number: 22,593
• Parties: State of Indiana, ex rel. Simpson et al. v. Meeker et al
• Court: Supreme Court of Indiana

105 N.E. 906

182 Ind. 240

State of Indiana, ex rel. Simpson et al. v. Meeker et al

No. 22,593

Supreme Court of Indiana

July 2, 1914

Rehearing Denied October 8, 1914.

From Fountain Circuit Court; I. E. Schoonover, Judge.

Action in mandamus by the State of Indiana, on the relation of James A. Simpson and others, against Theodore M. Meeker and others as County Councilmen of Fountain County. From a judgment for defendants, the relators appeal.

Reversed.

Thomas M. Honan, Attorney-General, Joseph H. Stahl, Forrest E Livengood and Valentine E. Livengood, for appellants.

A. T. Livengood, Courtney W. Dice and Lucas Nebeker, for appellees.

OPINION

Spencer, J.

This is an action in mandamus wherein appellants seek to compel appellees, as members of the county council of Fountain County, to make an appropriation of $ 1,500 under the provisions of § 12 of the Vocational Education Law of 1913 (Acts 1913 p. 43, § 66411 Burns 1914). Appellees' demurrer to the complaint was sustained and that ruling is now challenged by this appeal.

Section 12 of the act in question reads as follows: "Whenever twenty or more residents of a county, who are actively interested in agriculture, shall file a petition with the county board of education for a county agent, together with a deposit of $ 500.00 to be used in defraying expenses of such agent, the county board of education shall file said petition, within thirty days of its receipt, with the county council, which body shall, upon receipt of such petition, appropriate annually the sum of $ 1,500.00 to be used in paying the salary and other expenses of said county agent. When the county appropriation has been made the county board of education shall apply to Purdue university for the appointment of a county agent whose appointment shall be made annually and be subject to the approval of the county board of education, and the state board of education. When such appointment has been made, there shall be paid annually from the state fund provided for in this act, to Purdue university, to be paid to the county providing for a county agent, an amount sufficient to pay one-half the annual salary of the county agent appointed as herein provided: Provided, That not more than $ 1,000 shall be appropriated to any one county: Provided, further, That not more than thirty (30) counties during the year ending September 30, 1914; and sixty (60) counties during the year ending September 30, 1915, shall be entitled to state aid. It shall be the duty of such agent, under the supervision of Purdue university, to co-operate with farmers' institutes, farmers' clubs and other organizations, conduct practical farm demonstrations, boys' and girls' clubs and contest work and other movements for the advancement of agriculture and country life and to give advice to farmers on practical farm problems and aid the county superintendent of schools and the teachers in giving practical education in agriculture and domestic science. The county board of education is hereby authorized to file monthly bills covering salary and expenses of county agent, the same to be approved by Purdue university, with the county auditor who shall draw his warrant or warrants on the county treasurer for the payment of same."

As appellants concede, a writ of mandate is available only where the neglect of a positive duty is shown and will not be issued to compel a public officer to act when under the law, such action is made discretionary with said officer. The first question, then, which we have to consider involves a construction of the word "shall" as used in the above section. As a general rule of statutory interpretation the presumption is that the word "shall", as used in any given law, is to be construed in an imperative sense, rather than directory, and this presumption will control unless it appears clearly from the context or from the manifest purpose of the act as a whole that the legislature intended in the particular instance that a different construction should be given to the word. Morrison v. State, ex rel. (1914), 181 Ind. 544, 105 N.E. 113; Robertson v. State, ex rel. (1887), 109 Ind. 79, 10 N.E. 582; Board, etc. v. People's Nat. Bank (1909), 44 Ind.App. 578, 89 N.E. 904; 25 Am. and Eng. Ency. Law (2d ed.) 633.

We pass, therefore, to the second question presented by the appeal since it involves a consideration of the purposes of the legislation before us and of the language used in its several sections. Appellees take the position that § 12, supra, is unconstitutional and void for the reasons: (1) that it is special and local in its operation; (2) that it creates a lack of uniformity in the common-school system; (3) that it vests in Purdue University the power to appoint local officers and agents for the county and thus tends to deprive such county of the right of local self-government; and (4) that it makes provision for an increased expenditure of revenue which necessitates a higher general tax and thus places an additional burden on one part of the people for the benefit of another part. Appellants, on the other hand, contend (1) that it is for the legislature to determine how and by what instrumentalities the common-school system shall be administered and carried into effect; (2) that it is only in a qualified sense that any law can be said to be of uniform operation throughout the State; (3) that all officers whose appointments are not specially provided for in the Constitution shall be chosen in such manner as the legislature may deem expedient; and (4) that the school fund may be unequally distributed by statutory authority without violating the provisions of the Constitution. Counsel on either side have presented in a clear and instructive manner their views on the several propositions advanced.

The matter of education has long been recognized as a legitimate function of the State and the framers of our Constitution recognizing that "Knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government", made it the duty of the legislature "to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement, and to provide, by law, for a general and uniform system of common schools, wherein tuition shall be without charge, and equally open to all." Constitution of Indiana, Art. 8, § 1. Pursuant to this direction there has been fostered and developed in Indiana a system of public schools which has given to the State a high rank educationally and has encouraged the spread of general learning among its people. But with the breaking down of the apprentice system and other great changes in economic and social conditions which have marked the growth of this country in recent years, there has come a recognition on the part of educators and laymen alike that tremendous industrial forces have been developing among the people without adequate cooperation on the part of the public schools. This fact finds expression in the definite movement of the past decade toward state-encouraged vocational education, a movement which, in its essence,...