Waters v. State ex rel. Neff

Monks, J. The relators brought this action to compel appellant, as trustee of Honey Creek School Township, by mandate to provide and maintain means of transportation for their children of school age to and from the public schools in the town of Russiaville, under the act approved March 11, 1907 (Acts 1907, p. 444, §2, §6423 Burns 1908). Appellant’s demurrer for want of facts to the alternative writ was overruled. A demurrer for want of facts was sustained to each paragraph of appellant’s return to the alternative writ, and, appellant refusing to plead further, judgment was rendered against him and a peremptory writ of mandate ordered. The assignment of errors calls in question the action of the court in overruling the demurrer to the alternative writ, and the demurrer to each paragraph of the return. [253] 1. [252] It is settled in this State that to render the alternative writ of mandate sufficient to with§tg,nd a demurrer for the [253] want of facts it must appear therefrom that it is the officer’s duty, and that he has the power, to perform the act sought to be enforced. State, ex rel., v. Anderson (1908), 170 Ind. 540, and cases cited; Teeple v. State, ex rel. (1908), 171 Ind. 268. 2. Where the performance of the alleged duty requires the payment of money, or the incurring of indebtedness by the public officer, facts must be averred which show that there is money which such officer has the right to apply to such payment or that he is authorized to incur such indebtedness. State, ex rel., v. Anderson, supra. 3. Under the act of 1899 (Acts 1899, p. 150) and the amendment thereof in 1901 (Acts 1901, p. 415, §§8085a-80851 Burns 1901), the trustee of the civil and school townships' has no power to expend any money for said township for any purpose, unless the advisory board of the township has appropriated the same for such purpose, and then only to the extent of such appropriation, and no indebtedness can be created except by such advisory board in the manner specified in said sections, and any contract made in violation of said act is null and void. State, ex rel., v. Anderson, supra, at page 542. 4. The only allegation in the alternative writ, or the petition therefor, in regard to appellant’s having money which he had the right to expend in furnishing and maintaining means of transportation of the pupils within the age and distance mentioned in said act is as follows.: ‘ ‘ The defendant at all times having a sufficient sum of money in his possession and now under his control as such trustee, and appropriated by the township advisory board of said township out of the special school funds belonging to said township, to pay the necessary expenses of transporting relators’ children to and from their respective homes to and from said school in Russiaville. ” It is objected that the part of said alternative writ set oirt contains no direct allega [254] tion showing that appellant had any funds in his hands appropriated by said advisory board for the purpose of furnishing transportation for pupils, under §6423, supra, but that all the allegations therein are by way of recital only, and therefore insufficient. Passing this objection, it will be observed that it is only alleged that appellant had ‘ ‘ a sufficient sum of money in his possession and control appropriated by the township advisory board out of the special school funds to pay the necessary expense of transporting relator’s children to and from” said schools. The amount of said sum is not stated, and the allegation that the same was sufficient was a mere conclusion, and not the allegation of a fact. Foland v. Town of Frankton (1895), 142 Ind. 546, 549, 550; Weir v. State, ex rel. (1903), 161 Ind. 435, 438, and cases cited. 5. Seetioxx 6423, supra, makes it the duty of the township trustee to “provide and xxxaixxtain nieans of transportatioix for all such pupils as live at a greater distance thaxi two miles, and for all pupils between the ages of six and twelve that live less than two miles and mox’e than one mile from the schools to which they may be transported, ’ ’ as the result of the discontinuance of the schools as provided for in section one of the act of 1907, supra (§6422 Burns 1908). It was the duty, therefore, of appellant trustee under §6423, supra, to provide and xnaintain the means of transportation for all the pupils mentioned in said section, and not merely for the children of relators, if sufficient funds had been appropriated by the township advisory board for that purpose. 6. It is evident, therefore, that to be sufficient, facts .should have been alleged showing that appellant had in his possession and under his control, appropriated for that pux*pose by the advisory board, funds enough to provide and maintain xneans of transportation for all the pupils mentioned in said §6423. No such facts were alleged in the alternative writ or the petition therefor. It follows that [255] the court erred in overruling the demurrer to the alternative writ. Judgment reversed, with instructions to sustain the demurrer to the alternative writ.