172 Ind. 59 | Ind. | 1909
Action by the State, on the relation of John Emrick and three other persons, to obtain a writ of mandate compelling appellant, as trustee of Perry school township of Allen county, Indiana, to provide and maintain means of transportation for the children of the relators herein to the different schools of said township, under the provisions of an act of the legislature, entitled “An act concerning the discontinuance of public schools, providing for the transportation of pupils as necessitated thereby,” etc., approved March 11, 1907 (Acts 1907, p. 444, §§6422, 6423 Burns 1908.) The issuing of an alternative writ was waived, and the defendant filed an answer to the petition. In his answer, among other things, he set up as a defense the facts that he had no funds in his hands which could be appropriated and devoted to the payment of the expenses of conveying the children of the relators to the schools of Perry township, and that the advisory board of said Perry township had ma.de no appropriation of funds to be used for and
Prom this judgment appellant appealed in term time. The court, among other facts, found the following: (1) That the cost of purchasing a wagon or providing other means for transporting relators’ children to the nearest school for the remainder of the school year of 1907 would-be about $300; (2) that the defendant, as trustee, has now on hand in the special school fund the sum of $58.21, and Perry school township is now obligated to the full extent of the money on hand in said special school fund; (3) that the defendant has no money or funds now on hand which he could lawfully devote to the payment of the expenses necessarily incident to the transportation of the relators ’ children to the nearest school; (4) at the regular meeting of the advisory board of said Perry township -the members of the advisory board advised against transporting the relators’ children to school, but made no record of its decision; (5) that the estimate of expenditures for the school-year of 1907-8 did not include any item for transporting the children of relators to school. At the time of the annual meeting of said advisory board in April, 1906, at which time the levy was
Among the conclusions of law stated by the court upon the special findings are the following: (1) That the inadequacy of the special funds to pay the expenses of transportation of said children is no sufficient defense to the prayer for mandate herein.
(2) That said school No. 5 and school district No. 5 of said township, as formerly enumerated, was discontinued in May, 1902, within the meaning of the act of 1907, supra.
(5) That it is the duty, under said act, of the defendant trustee of said Perry township to provide suitable conveyances, as by law required, for the transportation of said children.
(6) That a writ of mandate ought to issue herein, as prayed for in the petitioners’ complaint.
Undoubtedly the court erred in its conclusions of law. The facts, as found by the court, that appellant had no funds on hand which he could lawfully appropriate to the payment of the expenses of conveying the children of relators to school, and that the township advisory board had made no appropriation of money for that purpose alone, must defeat this action, for the existence of such facts at the time this suit was instituted fully justified appellant in his refusal to discharge the alleged duty which the relators sought to coerce him to do by writ of mandate. In order for them to succeed in this action, it was essential to show not only that it was the duty of appellant, as trustee of the school township, to perform the act sought to be enforced, but also that he, as such officer, at the time in question, had the lawful power
Under the facts the court erred in its conclusions of law, for which error the judgment is reversed, and the cause remanded to the lower court, with instructions to restate its conclusions of law in favor of defendant, and to render its judgment accordingly.