State ex rel. Smitherman v. Davis

• Decision Date: 26 June 1958
• Docket Number: No. 29620,29620
• Citation: 151 N.E.2d 495,238 Ind. 563
• Parties: STATE of Indiana ex rel. Ronald E. SMITHERMAN, et al., Appellants, v. Harry M. DAVIS, as Trustee of Center School Township, Hancock County, Indiana, et al., Appellees.
• Court: Indiana Supreme Court

Page 495

151 N.E.2d 495

238 Ind. 563

STATE of Indiana ex rel. Ronald E. SMITHERMAN, et al., Appellants, v. Harry M. DAVIS, as Trustee of Center School Township, Hancock County, Indiana, et al., Appellees.

No. 29620.

Supreme Court of Indiana.

June 26, 1958.

Rehearing Denied Oct. 31, 1958.

Stephen A. Free, of Ging & Free, Greenfield, for appellants.

Richard T. Lineback, Greenfield, John H. Baldwin, Indianapolis, for appellees.

ACHOR, Judge.

This is an action in mandamus. Appellants, who are residents of Center Township in Hancock County, seek a court order requiring appellees, who are the Trustee of Center School Township; Board of School Trustees of Central School District (which includes Center Township), and the County Superintendent of Schools, to grant the transfer of their children from the Central School District to the Greenfield city schools.

Action was commenced in the Hancock Circuit Court on the 10th day of March, 1956. A demurrer to appellants' complaint was sustained. Appellants declined to plead further and judgment was taken against them accordingly.

The complaint contains several conclusions of law, all of which must be ignored as irrelevant. However, since there are other facts well pleaded and the sufficiency of the complaint was challenged by demurrer we must look to and consider as true the facts which are well pleaded, together with those inferred by ordinary and reasonable intendment.

The facts so alleged as cause for the action are substantially as follows:

Center Township is approximately seven miles east and west, and eight miles north and south. There are two school facilities within the township, one at the unincorporated town of Maxwell, and the other in the city of Greenfield. Both Maxwell and Greenfield are approximately in the center of the east and west dimension of the township. The city of Greenfield is approximately two miles from the south line and Maxwell is approximately one mile from the north line of the township. For many years prior to the school year of 1954-1955, the children of the appellants, who reside in the township and to the south of the city of Greenfield, were transferred to the latter school.

Green Township lies to the north of Center Township in Hancock County. For many years the Green School Township had maintained a school in the unincorporated town of Eden, which is approximately three and one-half miles north of Maxwell. During the summer of 1955 proceedings were had to consolidate the school corporations of the two townships. Prior to said consolidation appellants made request to the trustee of Center School Township and the County Superintendent of Schools for the transfer of their children to the Greenfiled city schools, which requests were denied. After consolidation of said school districts, formal request was again made to the Board of Trustees of the Central School District and to the County Superintendent of Schools of Hancock County, which requests were again denied.

Thereafter the children of these appellants were sent to the consolidated schools at Eden. In order to transport the children to the Eden schools it was necessary that all of them be transported through the city of Greenfield, plus the additional of about ten miles to the Eden school.

With regard to the character of the two schools, the complaint alleges as follows:

'* * * that the school building at Eden was crowded; that it would be necessary to hold classes in temporary and inadequate quarters; * * *

'* * *

'The School City of Greenfiled maintains a larger system than that of Hancock Central School District; said Greenfiled schools employ a greater number of better qualified teachers than does the Hancock Central system; Greenfiled High School holds a First Class High School Commission, and is accredited by the North Central Association of Colleges and Secondary Schools, qualifications which were not met by either the Center School Township, or Green School Township Highschools, * * *' (pp. 15 and 18 Appellants' Br.)

The complaint further alleges that all these facts were known to the appellees, but that nevertheless appellees refused to perform their statutory duty regarding the transfer of appellants' children. The statute which fixes the right of parents and the duty of a school corporation to transfer children from one school to another reads as follows:

'Whenever any child, resident in any school corporation of this state, can be better accommodated in the public schools of another school corporation of this state, or a high school of a school corporation of an adjoining state, the school trustee or board of school trustees, or board of school commissioners of the school corporation in which such child resides, may, if the conditions warrant, and 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 within this state, or the high school of a corporation in an adjoining state, to which such transfer is made, under the conditions hereinafter prescribed; * * * That in determining whether a child can be better accommodated in the schools of another school corporation in this state than that in which such child resides, or the high school of such school corporation in an adjoining state 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 means of transportation, if any, to each, the crowded conditions of the schools in either of the two corporations, shall be pertinent; and, Provided, further, That if there is no commissioned high school in any such school corporation, where the child resides, the school trustee, board of school trustees or board of school commissioners shall grant an order of transfer.' § 28-3701, Burns' 1948 Repl., Acts 1932 (Spec.Sess.), ch. 49, § 1, p. 190.

'If an order of transfer be denied, the parent, guardian or custodian of the child shall have the right to appeal the case to the county superintendent of schools, whose decision shall be final.' § 28-3705, Acts 1901, ch. 204, § 3, p. 448.

The school year 1955-1956, during which this transfer was prayed, has long since passed and, therefore, in reality, the specific question raised is moot. ¹ However, the parties urge that, because the same question reoccurs year after year as to the appellants and the parents of other children throughout the state, the case should be decided upon its merits, since the question at issue is one of great public interest and should therefor be decided. We accede to this request. See, City of Jeffersonville v. Louisville & J. Bridge Co., 1908, 169 Ind. 645, 83 N.E. 337.

There is no question that, under the above statute [§ 28-3701], transfer of pupils is made discretionary with school officials. The questions presented here are, (1) whether the granting of such transfers is entirely discretionary with the school trustee, from which action there is no appeal other than to the county superintendent of schools, with no right of judicial review, and, (2) if such right of judicial review does exist (3)...