Phillips v. Stern

• Decision Date: 13 November 1969
• Docket Number: No. 1,No. 468A58,468A58,1
• Citation: 145 Ind.App. 628,252 N.E.2d 267
• Parties: Bud E. PHILLIPS et al., Appellants, v. William H. STERN et al., Appellees
• Court: Indiana Appellate Court

Page 267

252 N.E.2d 267

145 Ind.App. 628

Bud E. PHILLIPS et al., Appellants, v. William H. STERN et al., Appellees.

No. 468A58.

Appellate Court of Indiana, Division No. 1.

Nov. 13, 1969.

Rehearing Denied Dec. 15, 1969.

Frank E. Spencer, Indianapolis, for appellants.

George B. Gavit, Ice, Miller, Donadio & Ryan, Indianapolis, Byron E. Bamber, Galvin, Galvin & Leeney, Hammond, John J. Dillon, Former Atty. Gen., Theodore L. Sendak, Atty. Gen., Anthony Champa, Asst. Atty. Gen., for appellees.

CARSON, Judge.

This action was initiated by appellant, Phillips and others as residents, school patrons and taxpayers of St. John Township Lake County, Indiana. Plaintiff-appellants filed a complaint in the Lake County Circuit Court; said complaint being in two paragraphs and praying for an injunction and a declaratory judgment, respectively, in relation to the attempted creation of the Lake Central School Corporation. The cause was venued to the Porter Superior Court, from which this appeal comes.

To each paragraph of the plaintiffs' complaint, separate demurrers were filed by various groups of defendants. The Porter Superior Court sustained each and all of the several demurrers and upon plaintiffs' refusal to plead further, entered judgment for the defendants as follows:

'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the court that the plaintiffs take nothing by this action, and that the defendants recover of the plaintiffs their costs and charges in this cause laid out and expended.'

There being no trial, a motion for a new trial was not filed and the matter is presented upon appellants' assignment of errors containing six specifications reading as follows:

'1. The court erred in sustaining the demurrer of the defendants Bryce Bottom, William E. Wilson, John, John J. Dillon, Herbert Holmes, Amelia G. Cook, Chester Biddle, Custer Baker, J. William Chambers, and Dick Heller, Jr., as members of and constituting the State Commission for the Reorganization of School Corporations of the State of Indiana, and the State Commission for the Reorganization of School Corporations, as to Paragraphs 1 and 2 of plaintiffs' complaint.

'2. The court erred in sustaining the demurrer of William H. Stern, James Baker, Clark N. Johnson, Michael Marietta, Anna Maloney, Walter R. Mybeck, William E. Purcell, Vernon Ruge, and Harry F. Smiddy, Jr., as members of and constituting the Lake County Committee for the Reorganization of School Corporations, and the Lake County Committee for the Reorganization of School Corporations, as to Paragraphs 1 and 2 of the plaintiffs' complaint.

'3. The court erred in sustaining the demurrer of William Graham, Louis Cinko, Nicholas Kuhn, Bernie Jostes, and Bert Ratcliff; Robert Grove, Robert S. Gentz and Robert Peifer, as members of and constituting the Board of Trustees of the School Town of Schererville; the School Town of Schererville; St. John School Township of Lake County, Indiana, and Louis Cinko, Trustee of the St. John School Township, Lake County, Indiana, as to Paragraphs 1 and 2 of plaintiffs' complaint.

'4. The court erred in sustaining the motion of the defendants that the Court enter an order requiring the plaintiffs to plead over, following the sustaining of the said demurrers of said defendants, as set forth hereinabove.

'5. The court erred in ordering the plaintiffs to plead over, following the sustaining of the said demurrers of the defendants, as set forth hereinabove.

'6. The court erred in entering judgment against the plaintiffs on said demurrers, that the plaintiffs take nothing by their action, and that the defendants recover their costs.'

Rhetorical Paragraphs 1, through and including, Rhetorical Paragraph 7, are identical in both Pleading Paragraphs 1 and 2 of the complaint and purport to set forth the individual and representative capacity of each plaintiff and defendant to this action. Rhetorical Paragraphs 8 through 19 and the prayer of Paragraph 1 of the complaint, read as follows:

'8. That the Defendants Lake County Committee For The Reorganization of School Corporations and its members and the Defendants State Commission For The Reorganization of School Corporations of the State of Indiana and its members have heretofore purported to approve a Comprehensive Partial Plan for Lake County, Indiana, for the creation of a Community School Corporation out of School Town of Schererville and St. John School Township, the said proposed community school corporation to be the said Lake Central School Corporation, and which said proposed plan would dissolve said St. John School Township, Lake County, Indiana, and The School Town of Schererville, and transfer all of the assets of the said two school corporations to the said proposed Lake Central School Corporation.

'9. That heretofore on the 29th day of September, 1966, the Judge of the Circuit Court of Lake County purportedly issued an ex parte order concerning and referring to the said partial plan for the creation of the said proposed Lake Central School Corporation, purporting to call a special election concerning the same, to be held at the time of the next General Election, to wit: November 8, 1966, but that the records of said ex parte matter do not contain any statement or finding of fact that said partial plan had been received at any time by the chairman of the Lake County Committee for the Reorganization of School Corporations.

'10. That in spite of the lack of statutory conditions precedent as provided in the Acts of 1959, Ch. 202, Sec. 7(1) & (2), as amended, (and as found in Burns, (1966 Supp.), Sec. 28--6117 and Sec. 28--6118, that the plan be received by the chairman of the County Committee (after approval by the State Commission for the Reorganization of School Corporations) not sooner than thirty (30) days and within six (6) months of a general election at which county officials are nominated or elected, said ex parte order for said special election directed the holding of the same on November 8, 1966.

'11. That contrary to the provisions of said statute, the notice of said special election which was ordered and given pursuant to said ex parte order did not designate the 'voting place or places at which the election will be held.'

'12. That rather than holding a special election as ordered by the Judge of the Circuit Court of Lake County, the Board of Election Commissioners conducted only the general election, and purported to submit a Referendum Question concerning said proposed school corporation at said General Election.

'13. That the action of the Defendant State Commission For The Reorganization of School Corporations of the State of Indiana and its members in purportedly approving said partial plan for the creation of said proposed community school corporation, and said proposed plan of the Defendants County Committee and its members was illegal, in excess of its jurisdiction and authority and void and of no effect because the action of purported approval of said partial plan was purportedly taken at a special 'executive session' at 3:10 P.M., September 27, 1966, Triton High School Conference Room, Fairland, Indiana, attended by only a part of the members of said State Commission, and without notice previously given of the time and place of said meeting to the members of said State Commission who were not in attendance.

'14. That the said partial plan for the creation of the said Lake Central School Corporation is null and void and in violation of Article 1, Section 23 and Article 3, Section 1, in that the provisions therein contained that purport to limit the elegibility of electors and registered voters to qualify and hold the office of member of the Board of Trustees of the proposed Lake Central School Corporation to only those candidates, nominees, members or appointees who have 'reached the full age of twenty-five (25) years' at the time of the appointment or election, and have been residents of the particular district from which they are to be nominated or appointed for three (3) or more years immediately preceding the commencement of their term of office, constitutes an arbitrary and unreasonable classification which grants to certain citizens privileges in violation of said Article 1, Section 23, and constitutes an attempt by said Defendants to legislate in violation of said Article 3, Section 1, said Articles and Sections being of the Constitution of the State of Indiana.

'15. That the said partial plan for the creation of the said Lake Central School Corporation is null and void and of no effect for the furthr reason that said partial plan was submitted to the said Defendant State Commission for its approval more than sixteen (16) months after the date when substantially the same plan had been rejected by the voters in the said St. John Township and the Town of Shererville, without any authority in law for said re-submission to the said Defendant State Commission.

'16. That said partial plan purportedly approved by the Defendant State Commission on September 27, 1966 was not in fact a 'new plan of reorganization' as provided in the Acts of 1959, Ch. 202, Sec. 7(3), as amended, and as found in Burns (1966 Supp.), Section 28--6119, but was in fact substantially the same plan which had been rejected by the voters, and no special election directed by the said Defendant County Committee has been held pursuant to the provisions of said statute.

'17. That the Judge of the Circuit Court of Lake County has purported to appoint the Defendants William Graham, Louis Cinko, Nicholas Kuhn, Bernie Jostes and Bert Ratcliff as members of the Board of Trustees of the said proposed Lake Central School Corporation, which said corporation is not in being.

'18. That said Defendants St. John School Township, Louis Cinko, as Trustee of said St. John School Township, the School Town of Schererville, and Robert Grove, Robert S. Gentz and Robert W. Peifer, as Members of and Constituing the board of trustees of the...