181 Ind. 581 | Ind. | 1914
On March 11, 1907, tbe legislature passed an act concerning tbe discontinuance of public schools in which it was provided that “the township trustees shall discontinue and abandon all schools under their charge at which the average daily attendance during the last preceding school year has been twelve (12) pupils or fewer; and said trustees may discontinue and abandon all schools at which the average daily attendance during the last preced
During the year 1911 appellant, as trustee of Center School Township in Hancock County, caused the school which had been held in one of the school districts in said township to be abandoned. On April 18, 1912, a majority of the patrons who then resided in said school district filed a petition with appellant, as trustee, to have said school reestablished. Said petition was denied by appellant, whereupon this action in mandamus was instituted in the Hancock Circuit Court, asking that appellant be ordered to reopen said school. Appellant’s demurrer to the complaint was overruled and, on his refusal to plead further, judgment was entered directing and commanding him to reestablish the school in question. He appeals.
Appellee takes the position that under the last proviso of the act of 1909, as above quoted, it is the duty of a township trustee to reopen a school which has been closed for lack of attendance, whenever a majority of the patrons of
The history of legislation in reference to the discontinuance of public schools and the language used in the act of 1909 tends to support appellant’s contention. It will be observed that under the act of 1907, supra, the abandonment of a school was unqualified and no provision was made for its reestablishment. In order to remedy this defect, the act was so amended in 1909 as to provide for the “temporary abandonment and discontinuance” of a school, said school to be “re-established by the township trustee in his discretion whenever”, etc. To permit the reopening of schools which had been “heretofore abandoned”, that is, prior to February 27, 1909, the amended act provided the remedy by petition which is now relied on by appellee. It is clear that this provision has reference only to such schools as were closed prior to the passage of the act of 1909 and that schools closed subsequent to that time are to be reestablished in the discretion of the township trustee. If the trustee abuses his discretion or improperly refuses to perform the duties required of him, the remedy is by an appeal to the higher school authorities and not by writ of mandate. §§6667, 6668 Burns 1914, §§4537, 4538 R. S. 1881; Nelson v. State, ex rel. (1907), 168 Ind. 491, 81.N. E. 486; State, ex rel. v. Black (1906), 166 Ind. 138, 76 N. E. 882.
Judgment reversed, wdth instructions to sustain appellant’s demurrer to the complaint.
Note. — Reported in 105 N. E. 51. As to existence of other remedy as bar to mandamus, see 98 Am. St. 866. See, also, under (1) 85 Cyc. 858 New Anno.