138 Ind. 395 | Ind. | 1894
This action was brought by the State of Indiana, on the relation of the attorney-general, for the purpose of recovering a balance of $322.05 of State school revenue for tuition, which was unexpended and in the hands of appellee on the first Monday of July, 1893, left over from the State tuition revenue apportioned to said township for the year ending the day previous, and which it. is stated ■ appellee has refused and neglected, and still refuses and neglects to refund and pay over to the treasurer of Marion county, though often requested so to do. The charge in the complaint was that the tuition revenue received by appellee, from all sources, had been commingled and expended from as an entirety. The suit was commenced under the proviso of the act of March 3d, 1893 (Acts 1893, pp. 195-6). The act is an amendment of section 114 of the school law of 1865, R„ S. 1881, section 4482.
The proviso reads as follows: “Provided, however, that any school corporation not expending the sum total of the tuition revenue apportioned to it by the State, shall,’ on the first Monday in July annually, report to and return to the county treasurer of the county in which said school corporation is situated, the unexpended balance of
The action wás begun by filing a petition praying for an alternative writ of mandate to compel the appellee, as trustee of Wayne township, in Marion county, to pay over to the treasurer of said county the sum above mentioned for redistribution by the State Superintendent of Public Instruction. The alternative writ stating the above recited facts was duly issued. The appellee appeared and demurred to the writ on the ground, 1st, that the same showed that appellant, the attorney-general, had no legal capacity to sue; 2d, that there' is a defect of parties defendant; 3d, that the writ does not state facts sufficient to constitute a cause of action.
The circuit court sustained the demurrer, to which the appellant excepted, and failing to plead further, the appellee had judgment upon the demurrer.
It is made the duty of the attorney-general, by statute, to institute and prosecute all necessary proceedings for the collection of all moneys where the same is by law required to be paid to the State, or any officer in trust for the State, and in all cases where the officers, whose duty it shall be to collect the same, shall fail, neglect, or refuse, after a cause of action in favor of the State shall have accrued. Elliott’s Supp., section 1805.
If, therefore, the unexpended balance of the tuition revenue apportioned for the previous year to Wayne township, in Marion county, by the State, in excess of $100, which the writ states amounts to $322.05, and the truth of which is admitted by the demurrer, belongs to the common school tuition revenue of the State, and a valid law of the State requires the trustee of the township to pay said amount to'the treasurer of the county, and he has failed, neglected, or refused to so pay over, the action is properly brought on the relation of the attorney-general. It will be observed that the statute above quoted requires, in such cases, such balances to be returned and paid over to the county treasurer for redistribution by the State Superintendent of Public Instruction, at the next apportionment of school revenue for tuition. The whole question, therefore, depends upon the validity of that statute, not only as to th^ legal capacity of the attorney-general to prosecute the action as relator, but also as to the sufficiency of the facts to constitute a cause of action.
The other ground of demurrer, namely, that there was a defect of parties defendant, has been waived by the appellee, in so far as he could waive.the same, by failing to argue it in his brief. The judgment being in-his favor on the demurrer, the presumption that alwáys prevails in favor of the correctness of the action of the trial court on appeal, would,, perhaps, require us to uphold the judgment below if any one of the grounds assigned in the demurrer was well taken, whether appellee pointed
The demurrer not being sufficient in form, as to defect of parties defendant, the appellee is in the same situation as if he had not demurred for defect of parties defendant at all. In such case such objection is deemed waived. 1 Burns’ Rev. 1894, section 346.
We, therefore, hold that the objection as to defect of parties defendant was waived by the appellee in failing to file a demurrer designating the proper parties defendant. The only question, therefore, left for our consideration and decision is whether the statute in question is constitutional. Almost the entire argument, both oral and in the briefs, on both sides, conducted at great length and signalized by much learning and research, spiced with laudable zeal and marred by not a little animosity, has been devoted to that question as the controlling one in the case. The appellee’s counsel have assailed the statute from every standpoint, and have leveled at it many blows that are not constitutional objections. With such objections to a statute, the courts have nothing whatever to do. With the justice, the propriety, the policy, the advisability or desirability or undesirability of a statute, the courts can have nothing whatever to do, so long as the act does not infringe some provision of the constitution, State or Federal, or some valid treaty or law of Congress. Such objections must be made to the Legislature. Hedderich v. State, 101 Ind. 564; Cooley's Const. Lim., 201-204.
No attempt has been made in that direction, in this case, except that the appellee’s, counsel has characterized the act in question as “a legislative fraud.” But, if we shall find it within the power of the Legislature to pass the act, that ends the inquiry.
The State Legislature possesses all legislative power, except such as has been delegated to Congress and prohibited by the constitution of the United States, to be exercised by the States, and such as are expressly or impliedly withheld by the State constitution from the State Legislature. Cooley’s Const. Lim., 104.
The only limitations, therefore, upon the power of the Legislature are those imposed by the State constitution, the Federal constitution, and the treaties and acts of Congress adopted and enacted under it. Hedderich v. State, supra.
It, therefore, was said in several cases by this court that “the legislative authority of this State is the right to exercise supreme and sovereign power, subject to no restrictions except those imposed by our own constitution, by the Federal constitution, and by the laws and treaties made under it. This is the power under which the Legislature passes all laws.” Beauchamp v. State, 6 Blackf. 299; Maize v. State, 4 Ind. 342; Fry v. State, 63 Ind. 552; Clare v. State, 68 Ind. 17; McComas v. Krug, 81 Ind. 327; Campbell v. Dwiggins, 83 Ind. 473.
The sole contention here is that the act is in conflict with the provisions of the constitution of the State.
It was said by this court, in McComas v. Krug, supra, that “Such questions are always regarded by the courts as of serious importance. The judiciary look to the acts of the Legislature with great respect, and reconcile and
And, in Jamieson v. Indiana, etc., Gas Co., 128 Ind. 555 (568), it was said: “We have no right to presume that the Legislature usurped power, or disregarded the organic law. No precedent will justify such a presumption, nor any reason sustain it. A party who asserts that the Legislature has usurped power, or has violated the constitution, must affirmatively and clearly establish his position. Nor have the courts the right to so construe a statute as to render it void, where a construction that is reasonably admissible will uphold it. * * * We are to resolve doubts in favor of the validity of the statute, without * * stopping to inquire what construction might be warranted by the natural import of the language used.”
And, in Robinson v. Schenck, 102 Ind. 307 (319), this • court said: “It devolves upon the party who assails a statute on the ground that it violates the constitution to show a clear violation and to point out the provision violated; failing in this, his attack is unavailing.”
It is claimed by the appellee, that the act in question violates the 8th article of the constitution, in that it operates to make an unequal distribution of the school revenue for tuition among the several school corporations of the State according to the number of school
“Common Schools. 1. Knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government, it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement, and to provide, by law, for a general and uniform system of common schools, wherein tuition shall be without charge, and equally open to all.
“Common School Fund. 2. The common school fund shall consist of the congressional township fund, and the lands belonging thereto; the surplus revenue fund; the saline fund, and the lands belonging thereto; the bank tax fund, and the fund arising from the one hundred and fourteenth section of the charter of the State Bank of Indiana; the fund to be derived from the sale of county seminaries, and the moneys and property heretofore held for such seminaries; from the fines assessed for breaches of the penal laws of the State, and from all forfeitures which may accrue; all lands and other estate which shall escheat to the State for want of heirs or kindred entitled to the inheritance; all lands that have been, or may hereafter be, granted to the State; where no special purpose is expressed in the grant, and the proceeds of the sales thereof, including the proceeds of the sales of the swamp lands granted to the State of Indiana by the act of Congress of the 28th of September, one thousand eight hundred and fifty, after deducting the expense of selecting and draining the same; taxes on the property of corporations, that may be assessed by the General Assembly for common school purposes.
“Principal, a Perpetual Fund. 3. The principal of the
“Investment and Distribution. 4. The General Assembly shall invest, in some safe and profitable manner, all such portions of the common school fund as have not heretofore been intrusted to the several counties; and shall make provision, by law, for the distribution, among the several counties, of the interest thereof.
“Reinvestment. 5. If any county shall fail to demand its proportion of such interest for common school purposes, the same shall be reinvested for the benefit of such county.
' ‘ Counties, — Liability. 6. The several counties shall be held liable for the preservation of so much of the said fund as may be intrusted to them, and for the payment of the annual interest thereon.
‘ ‘ Trust Funds Inviolate. 7. All trust funds held by the State shall remain inviolate, and be faithfully and exclusively applied to the purposes for which the trust was created.
“Superintendent of Public Instruction. 8. The General Assembly shall provide for the election, by the voters of the State, of a State Superintendent of Public Instruction, who shall hold his office for two years, and whose duties and compensation shall be prescribed by law.”
Counsel for appellee point out the fourth and fifth sections of the above article, which they claim are violated by the statute under consideration.
The fourth section only enjoins upon the Legislature the duty to make provision by law for the distribution of the interest of such portions of the common school fund among the several counties as has not theretofore been
The 5th section simply enjoins the duty on the Legislature in case any county shall fail to demand its proportion of, such interest for common school purposes, to reinvest the same for the benefit of such county. There is nothing in that section defining what proportion of such interest such county may demand. Without some other provision it would be difficult, if not impossible,' to reach the conclusion that any sort of a distribution provided for by the Legislature would be contrary to the mandate of the constitution.
It is not denied by the appellee’s learned counsel, that these two sections were intended to apply to a state of facts that existed at the time of their adoption, but which have long since ceased to exist. We will not stop now to point out those facts. But, notwithstanding, appellee’s learned counsel, basing their argument upon those sections, contend that: “The fund in controversy has once been granted under the provisions of the constitution, and the law enacted in conformity thereto, to the use of the schools of Wayne township; and can not be diverted, directly or indirectly, to any purpose other than that for which it has been granted.” But the sections of the constitution relied on to support this contention do not aid it a particle, even if they were applicable to a State of facts existing at the present time; because if they are to be construed as vesting title in and
Appellee’s counsel say that it violates the constitution, in that it operates to make an unequal distribution of school revenue for tuition among the several school corporations of the State according to the number of children in each within the school age. They contend that the constitution requires such equality as nearly as it can be practically attained; and that when such a distribution has once been made, the failure to expend all of such revenue during the school year for tuition can 'give no right to other school corporations to share in such balance without destroying the equality of distribution required by the 8th article of the constitution.
On the other hand, appellant’s counsel contend that that article does not require absolute and actual equality
It, therefore, became necessary to provide by statute for as. great inequality in the distribution of the State school revenue for tuition to carry out what was supposed to be the purpose of the framers of the constitution to afford equal opportunities to all the school children of the State. Hence the decisions above referred to in 7 Ind., supra.
That dispute is, whether (after a distribution derived from all sources as nearly equal as it is practically attainable to make among the school corporations of the State, according to the number of school children therein under the rules laid down in the cases in 7 Ind., supra ) it is competent or constitutional for the Legislature to require an unexpended balance of such revenue to be returned for redistribution, and will such return and redistribution destroy the equality of distribution required by the 8th article of the constitution? This query leads us to inquire what particular section of that article, if any, is it that requires such a distribution of school revenue for tuition as that when made there will be equality according to number of children? Appellee’s counsel have pointed out no such provision that they even claim makes such a requirement. They have contented themselves by citing the whole article with all its
It is now the just pride of Indiana that she has a system of free schools from which have gone forth men from humble homes, as well as those from more fortunate surroundings, well equipped and prepared to fill stations of high importance, both of State and Nation; and the learned professions, both in and out of the State, have been furnished with many of their members as a direct product of that system, while knowledge and learning generally diffused throughout the community is the rule and not the exception.
Speaking of this system and the proper construe
The equal distribution of the State school revenue to the several school corporations of the State, according to the number of school children therein, is a means and
As before observed, an equal distribution owing to local causes may operate to defeat this great end and leading purpose of the constitution. For instance, here is a township densely populated with twelve schoolhouses in it and enough children belonging to each to make a full school, and as many as can be taught in one school; over in another county is another township with the same extent of territory, but the children are only equal in number to two of the schools in the other township, , but they are so scattered over the township that they must have four schoolhouses before they can all attend school. An equal distribution of the school revenue for tuition according to numbers will give to that township one-sixth of the amount that it will give the other township, and to each school in the sparsely populated township it would give just one-lialf the amount of tuition revenue that it would give to each school in the more densely populated township.
And supposing the teacher’s salaries in each of the same quality would be the same, it would result in giving the children in the densely populated township ■ twice as long schools, double the length of schools, and hence double, the amount of tuition that it would give in the sparsely populated township. That would not be a compliance with the constitutional injunction that “tuition shall be without charge, and equally open to all.” Many other causes of a local character might be mentioned as tending in some instances to make an equal distribution operate the same way; for instance the difference in the salaries paid teachers, parochial schools and other causes.
But should the densely populated township have an
The complaint states a good cause of action, and the method of apportioning such revenues for the purpose of ascertaining the sum to be returned, as set forth in the complaint, is the only correct one which could be
It is a mistake to suppose that a distribution of school revenue to the school corporations of the State changes the title or ownership of the money. The persons to whom the money is entrusted and to whom it is delivered, hold it as the agents of the State, and the State does' not lose its control over it until it is paid out for tuition purposes.
We therefore hold that the statute is not unconstitutional. The judgment is reversed, and the cause remanded, with instructions to the court below to overrule the demurrer, and for further proceedings not inconsistent with this opinion.