Hooten v. Alt
| Decision Date | 13 June 1963 |
| Docket Number | No. 30265,30265 |
| Citation | 191 N.E.2d 13,244 Ind. 93 |
| Parties | Faye N. HOOTEN, Cleo Eisbrenner, et al., Individually, and as Constituting All the Members of the St. Joseph County School Reorganization Committee, Appellants, v. Arthur W. ALT, Clayton Bye, et al., Individually, and as Constituting All the Members of the LaPorte County School Reorganization Committee, Josephine Smyte, Bell Pettit, Guy Pettit, Robert L. Lockwood, Evelyn Schwark, et al., Appellees. |
| Court | Indiana Supreme Court |
Joseph T. Helling, of Crumpacker, May, Levy, & Searer, South Bend, Edwin K. Steers, Atty. Gen., Indianapolis, Kenneth D. Osborn, LaPorte, for appellants.
Link, Link & Franceschini, John J. Davie, LaPorte, for appellees.
1
This was an action for a restraining order and injunction against certain persons constituting the School Reorganization Committees of LaPorte and St. Joseph Counties and sought to restrain and enjoin the St. Joseph County Committee from including and the LaPorte County Committee from excluding Hudson Township of LaPorte County in their respective plans for school reorganization.
The LaPorte Circuit Court issued a restraining order without notice and set the case for hearing on the temporary injunction. After two changes of venue the case reached the court below, which, after hearing granted the temporary injunction, from which interlocutory order, appeal has been taken to this Court.
Appellants' first contention on this appeal concerns the question of the right of petitioners under the School Corporation Reorganization Act of 1959, as amended to withdraw from their petition for inclusion in a plan for reorganization filed under the Act, Burns' § 28-6106 (1962 Supp.).
The pertinent provisions of the statute are as follows:
'* * * Provided further, That before a plan is voted in and when sixty per cent [60%] or more of the registered voters of any township, city or town adjacent to another county, petition their county committee requesting that all or part of their particular township, city or town be included in the reorganization plan of an adjacent county, the county committee so petitioned shall release that part of the township, city or town so designated to the county committee named in the petition, which county committee shall in turn include said released territory in the reorganization plan for their particular county. Such petition and request must be filed with the county committee prior to the time a final plan is submitted to the state commission or before a second or subsequent plan is submitted following rejection of the initial plan.
'Within five days after the receipt of such petition, the county committee shall file such petition with the clerk of the circuit court. After receipt of the petition, the clerk shall make a certification under his hand and seal of his office as to (i) whether or not each signer thereon is a registered voter residing within the boundaries of the particular township city or town, as disclosed by the voter registration records in the office of the clerk or the board of registration of the county, or wherever such registration records may be kept, (ii) the number of such registered voters signing the petition, and (iii) the number of registered voters residing within the boundaries of the particular township, city or town, as disclosed in the records mentioned in subdivision (i) hereof.
Acts 1961, ch. 231, § 1(3) p. 544.
In the case before us a petition was filed on April 6, 1961, with the LaPorte County School Reorganization Committee requesting that Hudson Township be released to the St. Joseph County School Reorganization Committee for inclusion in the reorganization plan of that adjacent county.
On April 11, 1961, the LaPorte County School Reorganization Committee filed the petition with the clerk of the LaPorte Circuit Court and on April 13, 1961, said clerk made his certification that the petition as filed with him contained the names of 521 out of 774 (this was more than the requisite 60%) registered voters of Hudson Township.
However, on the same day, to-wit: April 13, 1961, at about 1:30 o'clock in the afternoon, plaintiffs-appellees in this action filed a second petition with the secretary of the LaPorte County School Reorganization Committee asking to withdraw their names from the original petition. Later in the afternoon of the same date, the clerk of the LaPorte Circuit Court returned the original petition with his certificate attached to the secretary of the LaPorte County School Reorganization Committee.
On April 20, 1961, the LaPorte County School Reorganization Committee considered both petitions and the second petition was ordered referred to the clerk for certification as to the total number of names on said petition who were registered voters of Hudson Township. That sometime between April 21 and May 24 the clerk returned the second petition to the secretary of the LaPorte County School Reorganization Committee certifying that 140 names contained thereon were registered voters of said Hudson Township.
On May 4, 1961, the LaPorte County School Reorganization Committee considered both the original and the withdrawal petitions, rejected each of the petitions and refused to grant the prayer of either of such petitions.
On June 13, 1961, a director of the State Commission for the Reorganization of School Corporations by letter directed the LaPorte County Committee to release jurisdiction of Hudson Township to St. Joseph County and on June 16 the secretary of the LaPorte County Committee pursuant to said county committee's authorization wrote a letter to the St. Joseph County Committee releasing Hudson Township to that committee. The St. Joseph County Committee thereupon notified the LaPorte County Committee of its acceptance of the jurisdiction of Hudson Township and June 23 the State Commission for the Reorganization of School Corporations recognized the authority of St. Joseph County to exercise jurisdiction over Hudson Township. Since June 15 the LaPorte County Shcool Committee refused to exercise further jurisdiction over Hudson Township.
Appellants' first contention is that the trial court erred in its first four conclusions of law which were as follows:
'That the law is with the Plaintiffs.
'That at the time the plaintiffs filed their petition with the LaPorte School Reorganization Committee, said committee had taken no final action on the petition filed before it on the 6th day of April, 1961; had made no determination that more than 60% of the registered voters residing within the boundaries of Hudson Township had signed said petition; and had not released jurisdiction of Hudson Township to St. Joseph County. 'Conclusion No. 3
'That the petition filed by plaintiffs was timely filed by said plaintiffs and said petition was a dismissal of the petition filed April 6th, 1961, as to the plaintiffs and that plaintiffs had a legal right to have their names withdrawn from the petition filed before said committee on the 6th day of April, 1961.
'That the refusal of the LaPorte County School Reorganization Committee to remove the names of plaintiffs from the original petition was contrary to law and the attempted release of Hudson Township to St Joseph County by said Committee was a nullity for the reason that had plaintiffs' names been removed from the original petition as requested by them the original petition filed April 6th, 1961, would have contained less than 60% of the registered voters residing within the boundaries of Hudson Township.'
Appellants have quoted from an annotation in 126 A.L.R. 1031 as follows:
Appellants further state that:
'Indiana subscribes to the premise contained in the last sentence of this quotation, that the timeliness and effect of withdrawal requests depends upon the wording of the statute involved and the nature of the proceeding.'
Citing: State ex rel. Harry v. Ice (1934), 207 Ind. 65, 191 N.E. 155, 92 A.L.R. 1508; State v. Gerhardt (1896), 145 Ind. 439, 473, 44 N.E. 469, 480, 33 L.R.A. 313, 325; Sauntman v. Maxwell (1900), 154 Ind. 114, 54 N.E. 397; Thorn v. Silver (1910), 174 Ind. 504, 89 N.E. 943, 92 N.E. 161; Parker et al. v. Seward School Twp. et al. (1959), 240 Ind. 1, 159 N.E.2d 576.
Appellants refer to the first part of Burns' § 28-6106 (1962 Supp.), supra, heretofore quoted wherein it is stated that:
'* * * when sixty per cent [60%] or more of the registered voters * * * petition their county committee * * * the county committee so petitioned shall...
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