State, Ex Rel. v. Whetsel, Trustee

Ewbank, J. Appellant’s relator brought an action of mandamus against the trustee and members of the advisory board of the township in which he lives to compel them to transport two of his children to the school which they are attending, in district number one of that township. He alleged that he is a resident taxpayer of the township and the father of the two children, and that they reside with him in school district number two of the township, which district was abandoned, and in which no teacher has been employed for several years past; that one of the said children- is aged twelve years and the other seven years; that there is no school within a mile and a half of the said residence of the children, and they are compelled to attend the school in district number one, which is distant two *280 miles and fifty rods from said residence; that the trustee has $1,505.08 of the special school funds available for the transportation of children so situated, and that, before bringing suit, demand was made and refused, etc. An answer of general denial and a second paragraph of argumentative denial which alleged in affirmative form that relator and his children reside and always have resided in school district number one, and not in number two, were filed, and appellant filed a reply of general denial. At the request of relator, the court made a special finding of facts, by which it found, among other things, that school district number two had been abandoned six years before, and had not since been used for school purposes, but that all the eight children of relator, including the two mentioned in his complaint, ever since becoming of school age, had attendéd the school in school district number one, but had never at any time attended in district number two; and there was no finding that the children resided or ever had resided in the abandoned district number two or were pupils of the abandoned school, or that the trustee had any funds available with which to do what was demanded. On this finding, the court stated conclusions of law that at the time of commencing this action and for some years prior thereto, the relator and his said children were and continuously had been “attached to school district number one,” that the law was with the defendants, and that the defendants were entitled to recover their costs. There was no motion for a venire de novo. The plaintiff filed a motion for a new trial for the alleged reasons that the decision is not sustained by the evidence and is contrary to law, which was overruled, and an exception was taken, whereupon judgment was rendered that the plaintiff take nothing, and that defendants recover their costs. *281 *280 Appellant being the plaintiff below and having the *281 burden of proof, the failure of the court to find that relator’s children resided in the abandoned school district number two, or were pupils of the abandoned school, or that there were any funds available to pay the cost of transportation, constituted a finding that the children were not pupils of that school, and that there were no such funds. National Surety Co. v. State (1918), 181 Ind. 54, 67, 103 N. E. 105; McAdams v. Bailey (1907), 169 Ind. 518, 534, 82 N. E. 1057, 13 L. R. A. (N. S.) 1003, 124 Am. St. 240. And since the whole case was based upon the alleged facts that they resided in that district and were pupils of that school, and that he had funds available, such a finding fully supports the conclusions of law that plaintiff is not entitled to recover anything and that defendants may recover their costs. Relator next insists that these facts were so clearly established by the evidence that a finding to the contrary is not sustained by sufficient evidence and is contrary to law. Relator testified that for fifty-seven years he had lived in Knox township on a farm that he owned at the time of the trial, and that both of his children, on whose behalf he sought the writ of mandamus, were born there and continuously had lived there with him; that he had eight children who had attended the township schools, the oldest of whom was now twenty-four years old, and he had always sent his children to the school in district number one, and had never sent any of them to the school in district number two; that, at the time the school in district number two was abandoned, his children were not attending school there; that the school was abandoned when Mr. Philabaum was township trustee, and that said trustee had told relator he intended to send relator’s children to the school at number two (since abandoned), when relator had told him *282 that if he took them over that mud road, he must haul them there and bring them back home. And there was evidence that the defendant trustee had never enumerated relator’s children in district number two, and there was no evidence that any trustee ever had done so at relator’s request. There was also evidence to the effect that relator lives in section ten, near the southeast corner of the section, in a house that faces a gravel road; that this gravel road runs west along the south line of the section, nearly a mile, to where “a bad mud road that has not been improved” leads north on the west line of the section to the northwest corner, and there the road turns back toward the east to reach the schoolhouse in district number two, a total distance of about two miles from relator’s residence; that immediately east of section ten lies section eleven, and the gravel road which passes relator’s house extends east along the south side of section eleven a little more than a mile to the southeast corner of that section, and there connects with a “right good road” that runs north along the east line of section eleven, and leads to Pennville; and that the schoolhouse in district number one is on this road, in the northeast corner of section eleven, just about the same distance from relator’s residence as the schoolhouse in district number two. But that, about one-fourth of a mile east of relator’s house, an unimproved “dirt” road leads off from the gravel road toward the northeast and extends diagonally across section eleven, to a point one-fourth mile west of the schoolhouse in district number one, where it connects with an improved stone road that runs east and west along the north side of sections ten and eleven, past both of the schoolhouses. The “act to provide for a general system of common schools,” as originally enacted, provided that the township trustees, annually, should “make an enumeration *283 of the children * * * between the ages of six and twenty-one * * * specifying * * * the number of the school to which such person is attached,” and that, “upon making the first enumeration after the taking effect of this act” (in 1865), the trustee “shall inquire of each person whose name he so lists, to which school he or she desires to be attached, and such persons, upon making their selection, shall be considered as forming the school district of the school selected, and none shall be allowed thereafter to attach themselves to or have the privilege of any other school but by consent of the trustee, for good cause shown.” Acts 1865 p. 8, §14. Also that any voter not having children of school age in his charge, “by indicating to said trustee his selection of the school to which he desires to be attached, may have his name listed by said trustee, on the enumeration list, and be attached to the school selected, and thus become entitled to the privileges of said school * * *. Such persons, together with the parents, guardians and heads of families mentioned in section 14, and the persons transferred from other townships and attached to said school as provided in sections 14 and 16 of this act, shall be the only persons entitled to vote at the meetings of the school so selected.” Acts 1865 p. 8, §15. And that upon request of persons who could be better accommodated in the schools of an adjoining township, town or city, the trustee of the municipality in which they reside may transfer them, and cause their children to be enumerated in such adjoining township, town or city, and cause them to be reported as voters “with the same particularity that is observed in the enumeration.” Acts 1865 p. 8, §16. “The voters as defined in §§14, 15 and 16 of this act, shall meet annually on the first Saturday in October and elect one of their number director of such school *284 * * * and, in case of failure to elect, the trustee shall forthwith appoint a director of said school. But any director so appointed may be removed upon a petition of three-fourths of the persons attached to said school, who are entitled to vote at school meetings.” Acts 1865 p. 8, §26. “The voters at school meetings, as provided in §§14, 15 and 16 of this act, may hold other school meetings at any time, upon a call of the director or any five of such voters,” etc. Acts 1865 p. 8, §26. The foregoing §§14 and 26 were amended in 1878, but the language above quoted from §14 remained unchanged, while the only change made in what is quoted from §26 was. the omission of the words “as provided in §§14,15, and 16 of this act,” in describing “the voters at school meetings.” Acts 1873 pp. 70, 72, §§4 and 7, §§4472, 4499 R. S. 1881. Another act passed at the same time purported to repeal §15, supra, of the act of 1865, but the title recited a purpose only to “amend” that act, “and adding supplemental sections thereto.” And it may well be doubted whether it was repealed for any purpose. Acts 1873 p. 75, §1. See Carnahan, Trustee, v. State, ex rel. (1900), 155 Ind. 156, 159, 57 N. E. 717. In 1895, §14 was again amended, and as so amended, it no longer contains the provision as to what the trustee should do in making the “first enumeration,” nor the provision that none but those making their selection of a school district at that time shall be considered as forming the school district except “by consent- of the trustee, for good cause shown.” §6542 Burns 1926, §6447 Burns 1914, §1, ch. 54, Acts 1895 p. 127. But the definition of the school district as consisting of those persons whose children were first enumerated as attached to the school therein, together with those afterward transferred to it, does not seem *285 ever to have been changed. There was evidence which sustains the finding that relator and his children were thus attached to school number one at the time school number two was abandoned, and that his children were not “pupils of such abandoned school” within the meaning of Acts 1921 p. 473, §2, which requires the trustee to furnish transportation for all pupils of an abandoned school who live more than a mile and a half from the school to which they are assigned. - Relator’s children not being pupils of the abandoned school, that fact barred plaintiff’s right to recover, and it is not necessary to decide whether or not the testimony of the trustee sufficiently proved that he did not have funds available to provide for transporting them, as demanded. The judgment is affirmed.