Wampler v. State ex rel. Alexander
| Decision Date | 26 October 1897 |
| Docket Number | 18,350 |
| Citation | 47 N.E. 1068,148 Ind. 557 |
| Parties | Wampler v. State, ex rel. Alexander et al |
| Court | Indiana Supreme Court |
From the Blackford Circuit Court.
Affirmed.
Jay A Hindman, for appellant.
John A Bonham, for appellee.
This was a proceeding in the lower court on the part of the relators, Virgil H. Alexander and Alexander Gable, to obtain a writ of mandate against the appellant, a township trustee of Blackford county, Indiana, to compel him to meet with them (who are also township trustees), for the purpose of electing a county superintendent of schools. On the filing of the application the court awarded an alternative writ. After being served with this writ, the appellant appeared in court and demurred for insufficiency of facts. First, to the application; second, to the alternative writ; third, to the application and alternative writ taken as one pleading. Each of these demurrers was overruled, and the proper exceptions were reserved. Appellant refusing to plead further, the court granted a peremptory writ of mandate, as prayed for by the relators, commanding the appellant to meet at the auditor's office at 9 o'clock a. m. on June 23, 1897 for the purpose of appointing a county superintendent. The several rulings of the court upon the demurrers are assigned as errors.
The following facts, among others, are substantially alleged in the application, and, in part, recited in the alternative writ: At and for more than one year prior to the filing of the application, on June 8, 1897, the relators were resident citizens and taxpayers of Blackford county, Indiana, and were each township trustees of said county; that there are four townships in that county, and no more, and appellant, at the beginning of this action, and for more than one year prior to said time, was the duly elected, qualified, and acting trustee of Harrison township, of said county; that these relators and appellant, as such trustees, were, in pursuance of law, required to meet at the office of the county auditor on the first Monday of June, 1897, for the purpose of appointing a county superintendent; that in pursuance of the statute and a previous written notice given by the county auditor to each and all of said trustees to meet at the time and place aforesaid stated, the relators, as such trustees, did, on the first Monday in June, 1897, the same being June 7, 1897, at nine o'clock a. m., meet at the office of the said auditor for the purpose of appointing a superintendent, but appellant, as such trustee, failed and refused to meet at said hour on said day, or at any other time during said day; that by reason of the fact that there were four township trustees, it was necessary for three, at least, of that number to meet, in order to organize and proceed with the business of electing a superintendent. During all of said day none of the trustees, except these relators, met at said auditor's office, whereby they were prevented from perfecting an organization, and appointing a county superintendent; that relators, from the time they met, as aforesaid, with the auditor, at his office, remained there ready to organize and appoint a superintendent, until the hour of twelve o'clock, midnight, on said day, and no other trustees having appeared at said meeting, or being present thereat, and they being unable to transact any business by reason of the absence of the other two trustees, adjourned to meet at the same place on the day following, June 8, 1897, at nine o'clock a. m. The relators again met at the time and place in accordance with their adjournment, but that neither the appellant nor the other trustee appeared at said meeting on said following day. It is further shown that these relators continued their meeting at the auditor's office on the day last mentioned, up to the time of filing their application herein, and it is alleged that they intend to meet for the purpose of electing a county superintendent, and adjourn from day to day until a quorum is secured, etc. They aver that the business of appointing a superintendent cannot be effected without the appellant being present with them at said meeting, and that no other adequate remedy exists.
The first contention of counsel for appellant is, that the facts as alone recited in the alternative writ are not sufficient to withstand a demurrer. Prior to the decision of Board, etc., v. State, 61 Ind. 75, a practice of treating the application as the complaint, in actions for mandate, even where the alternative writ had been issued, seems to have been recognized by this court. In the case above cited, a departure was made from this practice, and it was there held, in view of the provisions of the code of 1852, relative to mandamus suits, and upon the authority of Moses on Mandamus, that the alternative writ must be taken as in the nature of a complaint in the cause, and the facts stated therein must be sufficient to entitle the party to the writ.
In Gill v. State, 72 Ind. 266, the former decisions of this court, including Board, etc., v. State, supra, upon this question, were reviewed, and the rule was there stated as follows: "The alternative writ, when issued, will be taken as in the nature of a complaint in the cause," and "must show what is claimed, and in itself, or in connection with the complaint, petition or affidavit on which it is issued, show the ground on which the claim is made; and the facts stated must be sufficient in law to entitle the party to the writ." The court further saying: "This we think is in harmony with the spirit of the code, and with the practice which has long obtained in this class of cases, and, while it does not overrule, will prevent any undue extension or misapplication of the rule enunciated in the later cases referred to." This holding was followed in Potts v. State, 75 Ind. 336.
Since the decision in Gill v. State, supra, it has been the practice, in at least some of the trial courts in this State, to call in question, by the same demurrer, the sufficiency of the facts stated in the writ and application, taken together, and this procedure seems to have been recognized by the appellant in the lower court by addressing, as it did, in one particular, a demurrer to both the writ and application.
In the case of Board, etc., v. Cutler, 7 Ind. 6, this court held that it had been the practice to look into the whole record and determine whether mandamus is the appropriate remedy, as well as the question whether the allegations are sufficient to authorize the writ. While it may be, and ought to be considered the proper practice, under the more recent decisions of this court, which assert a rule of practice consistent with that generally prescribed by authorities on mandamus proceedings, to treat the alternative writ, unless the issuing thereof has been waived by the defendant, as a complaint, upon which issues of law and fact may be joined, and, generally speaking, the facts therein recited ought to be sufficient to justify the court in awarding the peremptory writ; nevertheless, those alleged in the verified application, upon which the alternative writ rests, may be, when necessary, used, or looked to, in order to supplement those embraced in the writ, and the application may be considered by the court in connection with the alternative writ to which the demurrer may have been addressed. Therefore, if the facts in the writ alone, or when supplemented by those in the application, are sufficient to entitle the applicant to the peremptory writ, a demurrer addressed to the alternative writ alone, or to both the writ and application, should be overruled. This rule is in harmony with the holding in the cases of Board, etc., v. Cutler, supra; Gill v. State, supra, and Potts v. State, supra, and does not militate against other decisions of this court, wherein, in effect, it is held that the writ, when considered alone, without reference to the application, must be sufficient. This point being settled, we are not, therefore, in this case, as insisted by appellant, compelled to confine our inquiry only to the facts in the writ, but may consider them together with those alleged in the application.
The principal question submitted for our decision is: Are the facts disclosed by the alternative writ and application, when considered together, sufficient to warrant the lower court in its action in overruling the demurrer to the writ, and ordering the peremptory writ of mandate to issue, requiring the appellant to meet with the relators at the auditor's office of Blackford county, on the day mentioned, for the purpose of appointing a county superintendent?
The theory of the insistence of appellant's counsel is: 1st. That relators herein are not shown to have the requisite interest to entitle them to prosecute this action. 2d. That, under the facts, mandamus will not lie to compel the appellant to meet for the purpose of electing a superintendent on a day subsequent to the first Monday in June. Or, in other words, that he did not have the power, under the statute in controversy, of meeting, after the time provided therein, for the reason, as contended, that the law is mandatory in this respect, and restrains him from doing so; hence, on this ground, the principal contention is, that he cannot be mandated by the court to exercise a power which he did not possess after the first Monday in June, 1897, and, consequently, there can be no meeting and election by the trustees until the next biennial year. It is also insisted that it does not appear from the facts that any vacancy had occurred in the office of superintendent in Blackford county which was required to be filled on the first Monday in June, 1897.
Section 5900, Burns' R. S. 1894 (4424, R....
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