174 Ind. 358 | Ind. | 1910
This is an action by appellant, a citizen taxpayer and school patron, for a writ of mandate against the trustee of Marion township, of Boone county, and members of the township advisory board requiring such board to enter in the proper records a finding that an indispensable necessity exists for the building of a new graded school building in district number thirteen, and an order authorizing the trustee of said township to issue the warrants or bonds of said school township to the amount of $20,000, to raise money with which to erect such building, and also requiring the trustee of said school township to proceed without delay to have constructed a new graded school building in said district in accordance with the plans and specifications already adopted and on file with said trustee. Trustee Howard and the advisory board each separately demurred to the petition and alternative writ for insufficiency of facts, each of which demurrers was overruled. Each then filed a separate return to the alternative writ. Plaintiff filed a demurrer to the second paragraph of the separate return of the advisory board, which demurrer was overruled, and plaintiff electing to stand by his demurrer, judgment was rendered against him that he take nothing by his action. Exceptions were reserved to all adverse rulings, and cross-error assigned on the overruling of the demurrers to the complaint and writ.
These averments show that mandate will not lie against the trustee, for the reasons that (1) the court will not entertain an action brought against an officer to compel him to do a thing that he remains willing to do and would do if he had the power; (2) the writ should be denied, because it does not clearly appear from the petition and alternative writ that it is defendant’s duty to construct the sehoolhouse, and that he has the means and ability of performance (Dunten v. State, ex rel. [1909], 172 Ind. 59; State, ex rel., v. Anderson [1908], 170 Ind. 540; State, ex rel., v. John [1908], 170 Ind. 233); (3) a trustee has no authority of law to expend the money of his township, or contract a debt in its behalf, for the construction of a schoolhouse, without a previous appropriation for the purpose by the advisory board of the township, or the consent of such board to create an indebtedness therefor. §§9590-9602 Burns 1908; State, ex rel., v. John, supra.
It is then shown that the respondent’s predecessor, John, in 1907, abandoned school districts eleven and twelve in
Like the trustee, in his decisions relating to the same matters, the board must also be able to point to a reasonable justification for its act, when it assumes to obstruct the proceedings of the school officers in their management of the schools. Advisory Board, etc., v. State, ex rel. (1905), 164 Ind. 295. To hold that such boards may capriciously, or for some parsimonious, selfish or improper reason, refuse to make an appropriation, or to authorize a loan, or
It is thus seen that it was the plain duty of respondent to grant the petition of the patrons and reestablish the schools in districts eleven and twelve that had been previously abandoned and consolidated with district thirteen, thus completely nullifying the facts upon which the former trustee counted as a basis for an indispensable necessity for a. large sehoolhouse. And this reestablishment of the school in the several districts had been fully accomplished before the filing and issuing of the amended petition and alternative writ of mandate herein.
The return was sufficient. A contrary conclusion would be equivalent to holding that advisory boards have no power
Judgment affirmed.