Cottongim v. Congleton

• Decision Date: 11 June 1964
• Docket Number: No. 30448,30448
• Citation: 199 N.E.2d 96,245 Ind. 387
• Parties: Ralph COTTONGIM, Wiley Payne, Lindbergh Baker, Bertha Gilstrap, for and on behalf of themselves, and all other citizens, residents, and taxpayes of Franklin Township, Washington County, Indiana, similarly situated, Appellants, v. Elmer CONGLETON, Frank Graves, Morris Fitzpatrick, Joe Hollrah, Bill Hein, as appointed members of East Washington School Corporation of Washington County, Indiana, Appellees.
• Court: Indiana Supreme Court

Page 96

199 N.E.2d 96

245 Ind. 387

Ralph COTTONGIM, Wiley Payne, Lindbergh Baker, Bertha Gilstrap, for and on behalf of themselves, and all other citizens, residents, and taxpayes of Franklin Township Washington County, Indiana, similarly situated, Appellants, v. Elmer CONGLETON, Frank Graves, Morris Fitzpatrick, Joe Hollrah, Bill Hein, as appointed members of East Washington School Corporation of Washington County, Indiana, Appellees.

No. 30448.

Supreme Court of Indiana.

June 11, 1964.

Basil H. Lorch, Jr., Lorch & Lorch, New Albany, for appellants.

Chester R. Hobbs, Salem, for appellees.

MYERS, Judge.

This is an action brought by appellants for and on behalf of themselves and all other citizens, residents and taxpayers of Franklin Township, Washington County, similarly situated, against appellees as appointed members of the East Washington School Corporation of Washington County, Indiana (hereinafter called the School Corporation). It is claimed, in substance, that the School Corporation, established pursuant to certain Acts of the 1959 General Assembly, as amended in 1961, does not conform to the statutes, and that the statutes in themselves are unconstitutional. This latter charge gives this court jurisdiction to determine the appeal. Burns' Ind.Stat., § 4-214, 1946 Replacement (Supp.).

The complaint, filed December 29, 1961, alleged, in general, that the School Corporation was organized pursuant to 'The School Corporation Reorganization Act of 1959,' as amended in 1961 (Burns' Ind.Stat., § 28-6101 et seq., 1948 Replacement [Supp.]); that this Act requires each community school corporation to be as nearly as practicable a natural, social and economical community; that adequate data was not furnished under the reorganization plan as is required by statute; that students of high school age living in Franklin Township would have to travel an excessive distance to and from school. The complaint then charged that the law itself violated certain sections of the Indiana State Constitution and the Fourteenth Amendment to the Constitution of the United States. Appellants state that irreparable damage and injury would result to them if appellees performed the acts required by the statutes. They asked that this court declare the statutes void as being illegal and unconstitutional. They further asked for injunctive relief.

A restraining order was issued by the Judge of the Washington Circuit Court, restraining appellees from acting in their capacity as members of the School Corporation and from doing or performing any act pertaining to the recognization plan of the Washington County School System until further order of the court.

Appellees filed a plea in abatement wherein they alleged, inter alia, that the basis for appellants' complaint was the unconstitutionality of the statutes under which the School Corporation was created; that the School Corporation had been formed by way of an election held on November 7, 1961, and, pursuant to law, appellees were appointed as interim board members (§ 28-6118, Burns' Ind.Stat., 1948 Replacement [Supp.]); that section 7(2) of the 1959 Act (§ 28-6118, Burns', supra) contains an express prohibition against bringing the action to enjoin the operation of any community school corporation on the ground it was not validly formed or existing, unless such action is instituted before the thirtieth day following the election; that the court had no jurisdiction to entertain this action because of the passage of time, the complaint having been filed more than thirty days after the election.

This plea in abatement was overruled, and appellees filed their answer in six paragraphs, most of which were based upon the same allegations as contained in the plea in abatement. Appellants replied in general denial pursuant to Supreme Court Rule 1-3.

Trial was had by the court without the intervention of a jury. Judgment was entered upon special findings of fact and conclusions of law. The findings were to the effect that under the 1959 School Reorganization law, a County Committee for Reorganization had been set up which prepared a comprehensive reorganization plan for the schools of Washington County; that a revision had been adopted and approved by the Committee which provided for a shcool district to be called 'East Washington School Corporation'; that the plan and revision had been submitted to the voters of Washington County at the election held on November 7, 1961, and was approved by a majority of the voters; that no social or economic barriers existed between the township composing the School Corporation except the usual and ordinary geographical barriers; that a new secondary school was contemplated because the present facilities were incapable of handling all the students of the School Corporation; that the cost of constructing this new school and its exact location were unknown at the time; that while some high school students of Franklin Township might have to travel a greater distance than that existing at the time, it would not be excessive; that county highways could be put in condition so that distances to be traveled by students might be less than those existing; that transfer fees were being paid by Franklin Township for secondary school students who attend the City of Salem schools due to a lack of secondary schools in that township; that the construction of a new school would relieve the payment of such fees; that the cost of the new school to the taxpayers of Franklin Township could be compensated by the absence of requirement to pay transfer fees. The court then stated that the suit was brought more than thirty days after the election so that all questions, other than that the constitutionality of the Act itself, were not within the jurisdiction of the court, and then proceeded to firmly state that the Act did not violate provisions of the Indiana or United States Constitution.

The conclusions of law were that (1) the law was with appellees; (2) the Act was constitutional; and (3) appellants were not entitled to a permanent injunction. Judgment to this effect was entered, dissolving the restraining order.

Appellants filed their motion for new trial in which they urged that the decision was not sustained by sufficient evidence and was contrary to law, and that the court erred in its conclusions of law. The motion was overruled and this appeal followed. In their assignment of errors, the appellants stated that the court erred in overruling the motion for new trial.

Appellants did not argue the first ground contained in their motion for new trial, that the decision of the court is not sustained by sufficient evidence. This being a negative judgment, it may not be attacked on that ground. Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, Trial Practice, ch. 30, § 1812, Comment 6, page 385. Appellants attempt to argue that the court was inconsistent in hearing and deciding the plea in abatement when the complaint was filed more than thirty days after the election, and then stating in one of its findings of fact that the court had no jurisdiction except to decide the unconstitutionality of the statutes. We do not believe appellants consider this argument material to this appeal, nor does this court.

Appellants state in their brief what is the meat of this appeal as follows:

'It is the Appellants contention herein that the School Reorganization Act of the year 1959, as amended in 1961, in itself, is unconstitutional, and that the judgment of the lower court was contrary to law and further that the court erred in its three conclusions of law.'

It is contended that the School Reorganization Act of 1959 as amended constitutes an unlawful delegation of legislative powers in that it violates Article, 4, Section 1, of the Constitution of Indiana, which reads in part:

'The Legislative authority of the State shall be vested in the General Assembly, which shall consist of a Senate and a House of Representatives. * * *'

And that it violates Article 1, Section 25, of the State Constitution, which provides:

'No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.'

These sections, it is contended, mean that the taking effect of a statute cannot be made conditional, contingent or dependent upon the happening of an event beyond the provisions of the statute.

It is appellants' argument that the law creating the School Corporation is dependent upon whether or not the voters of the township approve it, and thus is dependent and conditional upon the happening of an event beyond the provisions of the statute. Appellants cite Johnson v. Board of Park Commissioners (1930), 202 Ind. 282, 174 N.E. 91, and McPherson v. State (1910), 174 Ind. 60, 90 N.E. 610, 31 L.R.A.,N.S., 188, as authority. In the latter case it is stated as follows (at page 71 of 174 Ind., at page 613 of 90 N.E.):

'It is, however, unquestionably competent for the Legislature to designate a part, or all, of the people of a political subdivision, or district, to make manifest, by signature or vote, a condition or contingency that may or may not call a law into exercise.'

Appellants say that under the School Reorganization Act there is no such discretion left to the voters of the township as to whether or not the effect of this law shall be invoked. They argue that the Reorganization Plan or Act provides for the creation in each county of a state a County Committee which shall consist of the County Superintendent of Schools and eight members appointed by the Judge of the Circuit Court; that the Judge shall call into County Convention certain county officials for the purpose of reorganization; that this Committee shall complete the preparation of preliminary written plans for reorganization. Section 28-6105, Burns' Ind.Stat., 1948 Replacement (Supp.). It is claimed that the Act gives the voters no right to...