State ex rel. Warren v. Ogan

• Decision Date: 13 March 1902
• Citation: 63 N.E. 227,159 Ind. 119
• Parties: STATE ex rel. WARREN et al. v. OGAN et al.
• Court: Indiana Supreme Court

159 Ind. 119

63 N.E. 227

STATE ex rel. WARREN et al.

v.OGAN et al.¹

Supreme Court of Indiana.

March 13, 1902.

Appeal from circuit court, Fountain county; Jere West, Special Judge.

Quo warranto by the state, on the relation of Omar P. Warren and others, against George Ogan and others. From a judgment sustaining a demurrer to the information, relators appeal. Reversed.

C. M. McCabe and Lucas Nebeker, for appellants. Livengood & Livengood and W. W. Thornton, for appellees.

GILLETT, J.

The important question in this case is, can the common council of a newly incorporated city at once elect three trustees of the school city, on the theory that the offices of trustees of the former school town have, by the act of incorporation, ceased to exist? The determination of this question depends upon the proper construction of section 4 of the act of March 6, 1865 (section 5914, Burns' Rev. St. 1901; section 4438, Horner's Rev. St. 1901), and section 5 of the act of March 12, 1875 (section 5915, Burns' Rev. St. 1901; section 4439, Horner's Rev. St. 1901). The material portions of said section 4 read as follows: “Each civil township and each incorporated town or city in the several counties in the state is hereby declared a distinct municipal corporation for school purposes, by the name and style of the civil township, town or city corporation respectively, and by such name may contract and be contracted with, sue and be sued, in any court having competent jurisdiction. ***” The provisions of said section 5, so far as material here, are as follows: “The common council of each city and the board of trustees of each incorporated town of this state shall, at their first regular meeting in the month of June, elect three school trustees (who shall hold their offices one, two and three years respectively, as said trustees shall determine by lot at the time of their organization) and, annually thereafter, shall elect one school trustee, who shall hold his office for three years. Said trustees shall constitute the school board of the city or town. *** All vacancies that may occur in said board of school trustees shall be filled by the common council of the city or board of trustees of the town; but such election to fill a vacancy shall only be for the unexpired term. *** Said trustees shall receive for their services such compensation as the common council of the city or the board of trustees of the town shall deem just; which compensation shall be paid from the special school revenue of the city or town.” Although this section is an amendment of an act passed in 1873, yet it is in reality a substitute for section 5 of said act of March 6, 1865. The act of March 12, 1875, does not in terms apply to cities thereafter created, because it has been held by this court that the month of June, referred to in said act, relates to the June immediately following the enactment of the statute. Blakemore v. Dolan, 50 Ind. 194. It is only ex necessitate that the statute can be held to apply to towns thereafter created. In this connection it is important to note that there is no provision of law whereby the inhabitants of suburban lands may incorporate the same as a city. Such inhabitants may create a town, and such town may, if it has the requisite population, become a city. It cannot be held that the first election provided for by the act of 1875 applies, from the necessity of the case, to cities thereafter created, if it can reasonably be held that the terms of office of the trustees of the school town corporation extend into the period after the city has been created. This brings us to a consideration of the character of school corporations.

It will be observed that the statute that establishes school corporations provides that they shall be “distinct municipal corporations for school purposes.” The word “distinct,” as used in the statute, is used to differentiate the school corporation from the civil corporation, and not to separate school corporations into distinct classes. McLaughlin v. Shelby Tp., 52 Ind. 114;School Town of Princeton v. Gebhart, 61 Ind. 187;Utica Tp. v. Miller, 62 Ind. 230;Braden v. Leibengath, 126 Ind. 336, 25 N. E. 899;Wilcoxon v. City of Bluffton, 153 Ind. 267, 54 N. E. 110. As said by this court in McLaughlin v. Shelby Tp., 52 Ind. 117: “The language is, ‘each civil township and each incorporated town or city,’ etc., ‘is hereby declared a distinct municipal corporation for school purposes,’ etc. Distinct from what? Clearly, from the corporations of the civil townships, towns, and cities. Language could scarcely make it plainer.” As will hereafter appear, progress will be made in the solution of the question before us by considering the character of school corporations in their relation to the state. The constitution does not direct the general assembly to provide for the organization of the common schools, but it directs that body to devise “a system of common schools.” Article 8, § 1. The word “system” is thus defined by the Encyclopædic Dictionary: “A plan or scheme according to which things are connected or combined into a whole; an assemblage of facts, or of principles and conclusions, scientifically arranged or disposed according to certain mutual relations, so as to form a complete whole; as a system of philosophy, a system of government, etc.” Section 8 of article 8 of the constitution directs that “the general assembly shall provide for the election, by the voters of the state, of a state superintendent of public instruction, who shall hold his office for two years, and whose duties and compensation shall be prescribed by law.” A system of school government in which the capsheaf is a state officer having authority more or less broad, as the legislature may provide, but which of necessity reaches down to and affects the schools themselves, is a centralized, and not a localized, form of school government. Judge Cooley, in his great chapter on “Decentralization,” recognizes the distinction between that class of public corporations where the people voluntarily take upon themselves the corporate function, and that class of quasi corporations that exist under the general laws of the state apportioning the territory of the state into political divisions for convenience of government, and requiring of the people residing within those divisions the performance of certain public duties, as a part of the machinery of the state. Whether the inhabitants, says that learned author, “shall assume those duties or exercise those powers, the people of the political divisions are not allowed the privilege of choice. The legislature assumes this division of the state to be essential in republican government, and the duties are imposed as a part of the proper and necessary burden which the people mast bear in maintaining and perpetuating constitutional liberty.” Cooley, Const. Lim. p. *240. The following quotation from the case of City of Lafayette v. Jenners, 10 Ind. 70, 77, is apropos here: “And we have seen that common schools, as a whole, are made a state institution,-a system coextensive with the state, embracing within it every citizen, every foot of territory, and all the taxable property of the state.” “Essentially and intrinsically,” said the court in State v. Haworth, 122 Ind. 462, 465, 23 N. E. 946, 7 L. R. A. 240, “the schools in which are educated and trained the children who are to become the rulers of the commonwealth are matters of state, and not of local, jurisdiction. In such matters the state is a unit, and the legislature the source of power. The authority over schools and school affairs is not necessarily a distributive one, to be exercised by local instrumentalities, but, on the contrary, is a central power, residing in the legislature of the state. It is for the lawmaking power to determine whether the authority shall be exercised by a state board of education, or...