Teeple v. State ex rel. Bower
| Decision Date | 24 November 1908 |
| Docket Number | 21,285 |
| Citation | 86 N.E. 49,171 Ind. 268 |
| Parties | Teeple, Trustee, v. The State of Indiana, ex rel. Bower et al |
| Court | Indiana Supreme Court |
From Clark Circuit Court; Harry C. Montgomery, Judge.
Action by the State of Indiana, on relation of John W. Bower and another, against James N. Teeple, "Trustee of Charlestown Township" of Clark County. From a judgment for plaintiff, defendant appeals.
Reversed.
G. H D. Gibson and E. C. Hughes, for appellant.
James W. Fortune, for appellee.
This proceeding was brought by the relators in September, 1907, to compel appellant by writ of mandate to perform certain alleged official duties. The verified application for the writ was in two paragraphs, upon which an alternative writ was issued. To this alternative writ appellant filed a return, which was held sufficient on demurrer. Afterwards relators filed another verified application for an alternative writ, denominated "paragraph three." An alternative writ was issued on said paragraph. Appellant's demurrer "for want of facts" to this alternative writ and the application therefor, was overruled. Appellant filed a return to the second alternative writ. A trial of said cause by the court resulted in a finding, and, over appellant's motion for a new trial, a judgment in favor of the relators, and an order for a peremptory writ of mandate commanding appellant "forthwith to employ a teacher to teach the Otisco school, in district number eleven, in said township, for the school year of 1907-08, and not to abandon the same."
The errors assigned call in question the action of the court in overruling appellant's demurrer "for want of facts" to the application for an alternative writ designated "paragraph three," and the alternative writ issued thereon, and appellant's motion for a new trial.
The relators contend that appellant is not "entitled to have said alleged error of overruling his demurrer to said paragraph and alternative writ considered, on account of his failure to set out in his brief that part of the record showing the ruling of the court thereon and appellant's exception thereto as required by rule twenty-two of this court." It is not necessary to determine whether such ruling and exception thereto are sufficiently set forth in appellant's brief, because the relators have cured the defect, if any, in appellant's brief by copying the order-book entry of said ruling and appellant's exception thereto in their brief, thus accomplishing the purpose of the rule. Chicago, etc., R. Co. v. Wysor Land Co. (1904), 163 Ind. 288, 289, 69 N.E. 546; Tipton Light, etc., Co. v. Dean (1905), 164 Ind. 533 at 533-535, 73 N.E. 1082.
The relators complain of the failure of appellant to comply with said rule in other respects, but as appellant has made a good-faith effort to comply, and has substantially complied, therewith, said defects will be disregarded. Stamets v. Mitchenor (1906), 165 Ind. 672, 675, 75 N.E. 579; Howard v. Adkins (1906), 167 Ind. 184, 186, 78 N.E. 665, and cases cited.
Said third paragraph and the alternative writ issued thereon allege facts showing that neither appellant, nor any of his predecessors in office, had ever obtained an order from the county superintendent of said county authorizing him to change the site and location of the school building in said school district number eleven, located at the town of Otisco, to some other site in said school district, under the provisions of §§ 6417-6419 Burns 1908, Acts 1903, p. 17; that the attendance at said school has been such that appellant had no power or authority to discontinue and abandon said school under § 6422 Burns 1908, Acts 1907, p. 444; that appellant had not abandoned said school district on "the written consent therefor signed by a majority of those legal voters who are entitled to vote for township trustee in such district," as provided in § 6420 Burns 1908, Acts 1901, p. 159, which took effect March 7, 1901. Section 6421 Burns 1908, Acts 1901, p. 437, which took effect March 11, 1901, four days after § 6420, supra, took effect, provides: "that whenever a majority of the legal voters of any school district or corporation shall petition the trustee or trustees of such school district or corporation for the abandonment of their schools and the consolidation of their schools with the schools of some other school district or corporation in the same township, it shall be the duty of the trustee or trustees of such school district or corporation to comply with such petition, and to provide for the education of the children of such abandoned district or corporation in other schools as asked for in such petition."
From aught that appears to the contrary in the third paragraph and in the alternative writ issued thereon appellant may have abandoned the school at Otisco, in said district number eleven, by consolidating said school with the school or schools in other school districts in said township, on the petition of the class of legal voters mentioned in § 6421, supra, said class of voters being a different class from that mentioned in § 6420, supra. Ireland v. State, ex rel. (1904), 165 Ind. 377, 380, 75 N.E. 872. Said third paragraph and the alternative writ issued thereon, failing to show that the school at Otisco was not abandoned by being consolidated with some other school or schools in other school districts in said township under § 6420, supra, was insufficient, and the court erred in overruling the demurrer thereto. Ireland v. State, ex rel., supra.
This is true because the presumption is that appellant, as trustee of said township, has performed all of his official duties, and therefore the alternative writ is not sufficient unless the facts alleged therein and in the application therefor show that it is the duty of the officer to perform the act sought to be compelled, and that he has the power to perform the same. State, ex rel., v. John (1908), 170 Ind. 233, 84 N.E. 1, and cases cited; State, ex rel., v. Anderson (1908), 170 Ind. 540, 85 N.E. 17. It is evident that it was not the duty of appellant to employ a teacher for the school at Otisco, if the same had been abandoned by consolidation under § 6420, supra.
Besides, it will be observed that the proceeding was brought against appellant, "trustee of Charlestown township." It has been held that when the action is brought against the "trustee of the township," it is conclusively presumed that the action is against the trustee of the civil township, and not the school township. Jarvis v. Robertson (1890), 126 Ind. 281, 26 N.E. 182, and cases cited. It was held by this court in Hornby v. State, ex rel. (1879), 69 Ind. 102, that an action to compel a trustee to build a schoolhouse must be against him as "trustee of the school township," and not as "trustee of the township." If brought against him as "trustee of the township," as in this case, the alternative writ is bad on demurrer for want of facts.
The school township is a corporation and has control of the schools, schoolhouses and school funds, and is a distinct legal entity from that of the civil township. §§ 6404, 6405 Burns 1908, §§ 4437, 4438 R. S. 1881; State, ex rel., v. Ogan (1902), 159 Ind. 119, 63 N.E. 227.
It follows from what we have said and the authorities cited that the court erred in overruling the demurrer to the third paragraph of the application and the alternative writ issued thereon.
The causes assigned for a new trial present the question of the sufficiency of the evidence to sustain the finding, and that said finding is contrary to law.
The relators insist that no questions are presented as to the sufficiency of the evidence, and whether the finding is contrary to law, because the same have not been assigned as errors in this court. The overruling of said motion for a new trial has been assigned as error in this court, and this is all that is required to present all the causes properly assigned for a new trial, for the determination of this court. "It has been held in many cases that the ruling which forms the basis, ground or cause for a new trial cannot be independently assigned as error in this court." Elliott, App. Proc., §§ 347, 349, 350. See, also, Ewbank's Manual, § 44, p. 65, § 134; Cheek v. State (1908), ante, 98; Raper v. American Tin Plate Co. (1901), 156 Ind. 323, 324, 59 N.E. 937, and cases cited; Bane v. Keefer (1899), 152 Ind. 544, 547, 548, 53 N.E. 834; Cline v. Lindsey (1887), 110 Ind. 337, 343, 11 N.E. 441, and cases cited.
It appears from the evidence that in May, 1905, school districts eight, eleven and twelve, in Charlestown township, were adjacent to each other, and that the schoolhouse in district number eight had been destroyed by fire. The schoolhouse in district number eleven was in the town of Otisco. In May or June of said year appellant, the members of the advisory board of said township, and the county superintendent went to said town of Otisco to consult with the patrons of said school in regard to consolidating said three districts and erecting a new school building therefor. After consulting the patrons of said school at Otisco and of said districts eight and twelve, it was decided to build a schoolhouse sufficiently large to accommodate the children of school age in said three districts. Appellant thereby decided to consolidate said three districts. During the summer of 1905 appellant caused to be erected, at the expense of said township, in said new district number eight, which was composed of the old districts mentioned, a large and commodious school building for common and high school purposes, sufficient to accommodate all the children of school age in said new district. Teachers were employed by appellant for said new school, and the children of...
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