State ex rel. Thurston v. School City of Anderson

Decision Date28 May 1957
Docket NumberNo. 29388,29388
Citation142 N.E.2d 914,236 Ind. 649
PartiesSTATE of Indiana, on the Relation of Mary Ethel THURSTON, Appellant, v. SCHOOL CITY OF ANDERSON, Indiana, and Gordon A. France, Victor H. Riggs, George H. Vandergrift, Gordon B. Wilder, Faye (Fern) Canterbury, William Hevermale, Margaret Knight, as Trustees of the School City of Anderson, Indiana, Appellees.
CourtIndiana Supreme Court

Busby, Davisson, Cooper & Farr, Anderson, for appellant.

Jack Campbell and C. D. Rotruck, Anderson, for appellees.

EMMERT, Judge.

This is an appeal from a judgment entered on a finding for appellees in an action to mandate the School City of Anderson and its Board of Trustees to restore and reinstate the teacher's 'indefinite contract' of relatrix. Appellant assigns error in overruling the motion for new trial, which charged the decision was contrary to law.

Relatrix had taught for the school city since the school year 1928-1929 and until the school year 1952-1953, and by reason thereof had a vested indefinite teacher's contract under § 28-4307, Burns' 1948 Replacement, which could only be terminated pursuant to statute.

On May 5, 1953, the Board of Trustees held a meeting and adopted a resolution to hold a meeting on June 9, 1953, at 4:00 o'clock p. m. 1 at the office of the Superintendent of Schools to consider the termination of the indefinite contract of relatrix pursuant to § 28-4308, Burns' 1948 Replacement. Notice of this was given to relatrix, who demanded specific charges, and a hearing, which was held June, 2, 1953, at 6:30 p. m., at the office of the Superintendent.

Appellant makes no complaint as to the causes assigned for termination of her contract, or the hearing. Her complaint on appeal is that the provisions of § 28-4308, Burns' 1948 Replacement, were not followed as to consideration of the cancellation and termination of her contract.

This section, among other provisions, requires notice in writing of the 'exact date, time when and place where' the consideration of the termination of the indefinite contract shall take place. 2

We deem the evidence undisputed that the relatrix appeared with her counsel at the office of the superintendent on June 9, 1953, at least 10 minutes before 4:00 o'clock p. m., and remained there until 5:40 o'clock p. m. There were five members of the Board of Trustees of the School City of Anderson. One trustee arrived at 4:00 p. m., another arrived between 4:15 and 4:30 p. m., another arrived at between 4:00 and 4:30 p. m., another arrived between 4:00 and 4:15 p. m. The last member arrived about 5:20 p. m. Relatrix and her counsel remained there until 5:40 p. m., and during all of this time the board did not convene, or go into session, or notify relatrix of any postponement. At 5:40 p. m. relatrix and her counsel left the building, and at 5:45 p. m. the board convened and adopted a resolution terminating her contract. It is significant to note that the record of the meeting of June 9th did not state when the meeting convened as did other records of meetings of the board, although the record did show the board terminated the contract at 5:45 o'clock p. m.

Section 28-2402, Burns' 1948 Replacement, makes the school city a 'distinct municipal corporation for school purposes.' The trustees constitute a statutory board, and like other statutory boards, 'unless a grant of power and authority can be found in the statute it must be concluded that there is none.' Chicago & E. I. R. Co. v. Public Service Comm., 1943, 221 Ind. 592, 594, 49 N.E.2d 341. The board must act in meeting assembled. 4 McQuillin, Municipal Corporations § 13.07 p. 449. Ibid Vol. 16, § 46.07 p. 585. Terre Haute Gas Corp. v. Johnson, 1943, 221 Ind. 499, 511, 45 N.E.2d 484, 48 N.E.2d 455. 'Doubtful claims to power are resolved against the corporation. Pittsburgh, etc., R. Co. v. Town of Crown Point, 1896, 146 Ind. 421, 45 N.E. 587, 35 L.R.A. 684; Pittsburgh, etc. R. Co. v. City of Anderson, 1911, 176 Ind. 16, 95 N.E. 363; City of South Bend v. Chicago, etc., R. Co., 1913, 179 Ind. 455, 101 N.E. 628; Dunn v. City of Indianapolis, 1935, 208 Ind. 630, 196 N.E. 528.' Local Union No. 26, National Brotherhood of Operative Potters v. City of Kokomo, 1937, 211 Ind. 72, 79, 80, 5 N.E.2d 624, 627, 108 A.L.R. 1111.

'Cities and towns in Indiana are incorporated entities, possessing only such powers as are granted by the legislature in express words, and those necessarily implied or incidental to those expressly granted, and those indispensable to the declared objects and purposes of the corporation and to its continued existence. When the manner in which granted powers may be exercised are by statute restricted to a definite course of procedure such procedure must be followed. State ex rel. Hulskamp v. McCormack, 1916, 185 Ind. 302, 305, 113 N.E. 1001; State ex rel. Van Hoy v. Able, 1931, 203 Ind. 44, 50, 178 N.E. 683. See also Drinkwatter v. Eikenberry, 1946, 224 Ind. 84, 64 N.E.2d 399, and authorities there cited.' Schisler v. Merchants Trust Co., 1950, 228 Ind. 594, 604, 94 N.E.2d 665, 670.

In construing the statute concerning a teacher's indefinite contract and its termination, it is to be construed in favor of the teacher and against any forfeiture of vested rights. State ex rel. Clark v. Stout, 1933, 206 Ind. 58, 64, 187 N.E. 267; School City of Brazil v. Rupp, 1937, 104 Ind.App. 287, 293, 10 N.E.2d 924.

The General Assembly by § 28-4308,...

To continue reading

Request your trial
5 cases
  • School Dist. No. 69 of Maricopa County v. Altherr, 1
    • United States
    • Court of Appeals of Arizona
    • September 8, 1969
    ...the limits permitted by the statute. Elder v. Anderson, 205 Cal.App.2d 326, 23 Cal.Rptr. 48 (1962); State ex rel. Thurston v. School City of Anderson, 236 Ind. 649, 142 N.E.2d 914 (1957); Goldman v. Zimmer, 64 Ill.App.2d 277, 212 N.E.2d 132 (1965). Thus, a prerequisite to the exercise of th......
  • Attlin Const., Inc. v. Muncie Community Schools, 2-178A4
    • United States
    • Court of Appeals of Indiana
    • December 8, 1980
    ...and only possess such power as is expressly given them or such power as may be implied from the power given. State v. School City of Anderson, (1957) 236 Ind. 649, 142 N.E.2d 914. The persons which school corporations may contract with for services are spelled out in the following "In carry......
  • Stewart v. Fort Wayne Community Schools
    • United States
    • Supreme Court of Indiana
    • December 27, 1990
    ...addressed directly the legal issues presented by the discharge of tenured teachers in Indiana since State ex rel. Thurston v. School City of Anderson (1957), 236 Ind. 649, 142 N.E.2d 914, we grant transfer. We affirm the trial court's decision in favor of the school This case presents two i......
  • Western Adjustment & Inspection Co. v. Gross Income Tax Division, 29497
    • United States
    • Supreme Court of Indiana
    • May 28, 1957
    ......v. GROSS INCOME TAX DIVISION, State of Indiana, Appellee. No. 29497. Supreme Court of ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT