State ex rel. Harris v. Mutschler
| Decision Date | 05 November 1953 |
| Docket Number | No. 28993,28993 |
| Citation | 115 N.E.2d 206,232 Ind. 580 |
| Parties | STATE ex rel. HARRIS et al. v. MUTSCHLER et al. |
| Court | Indiana Supreme Court |
Seth E. Rowdabaugh, Warsaw, for Gene Lee, Pros. Atty.
Robert Hartzog, Goshen, for other appellants.
Albert B. Chipman, Plymouth, Russell D. Bontrager, Elkhart, Joseph W. Kindig, Nappanee, for appellees.
This is an appeal from a judgment for appellees on an information in the nature of quo warranto, brought by the Prosecuting Attorney of the 54th Judicial Circuit. The information charged in substance that the School City of Nappanee and Scott School Township of Kosciusko County had failed to effect a de jure consolidation of schools under Ch. 123 of the 1947 Acts, § 28-5901 et seq., Burns' 1948 Replacement, or under Ch. 268 of the 1949 Acts, §§ 28-5901 to 28-5911, Burns' 1948 Replacement (Supp.). The prayer sought to enjoin the members of the School Board for 'Nappanee Community Schools' from using such name as a corporation and from performing any of the functions of a corporation, and sought a declaratory judgment declaring that no consolidation had ever been made, and to declare null and void all of the acts of the School Board of the Nappanee Community Schools, and to enjoin the making of further appointments of members of the School Board, and to declare all appointments thereto to be null and void.
On September 10, 1952, the Trustee and Advisory Board of Scott Township filed an answer admitting the allegations in each rhetorical paragraph of the information, and prayed for a judgment for the plaintiff.
On June 10, 1952, the Mayor and members of the City Council of Nappanee filed a demurrer to the amended information on the ground the court had no jurisdiction of the subject matter, and that the information did not state facts sufficient to constitute a cause of action. On June 4, 1952, the appellees Mutschler, Elder, Wright, Anglin, Price and Coppes filed a similar demurrer to the amended information.
The trial court sustained both demurrers, and upon appellant's refusal to amend, entered a judgment for the demurring appellees. It also entered a judgment against the appellant relator on the answer filed by the Trustee and Advisory Board of Scott Township. None of the parties here complain as to the form of the judgment, or the failure of the trial court to enter a declaratory judgment as prayed in the information.
The amended information in substance charged that on May 26, 1947, the Trustee and Advisory Board of Scott Township met with the School Trustees of the School City of Nappanee, and adopted a resolution declaring an intention to consolidate the school corporations; that notice of the adoption of the resolution was published in the Warsaw Daily Times, but no notice was published in the Milford Mail, which was the newspaper nearest Scott Township; that the notice was directed to the legal voters of Scott Township and not to the legal voters of Scott School Township; that more than fifty legal voters residing in said township petitioned for an election; that the Trustee and Advisory Board of Scott Township fixed Monday, June 30, 1947, as the day for an election, notice thereof being published in the Warsaw Daily Times, but no notice was published in the Milford Mail; that said notice was addressed to the legal voters of Scott Township and was not addressed to the legal voters of Scott School Township; that an election was held and the Trustee and Advisory Board acting as a board of election commissioners, certified that the majority of the legal votes cast at said election were in favor of the consolidation; that the joint resolution declaring the intention to consolidate did not set out the name of the proposed new school district, the number of members of the School Board or the manner in which they should be selected, nor the limitations on residence, terms of office or other qualifications for members of said Board; that the ballots used on said election did not contain any statement as to the manner or method for the selection of the School Board, nor any statement of the provisions of any resolution in regard thereto; that the joint resolution did not state whether the consolidated school should be under the direction of the County Superintendent or of a Superintendent of Schools, or under the direction of a superintendent employed by the school board.
The amended information further averred that on July 5, 1947, the Trustees of the School City of Nappanee and the Trustee and Advisory Board of Scott Township, in a joint meeting, adopted a resolution declaring the School City of Nappanee and Scott School Township consolidated, to become effective August 1, 1947, and adopted for said new school corporation the name of 'Nappanee Community Schools'; that said resolution provided that the control and management of said new school corporation should be under a School Board consisting of five members, three to be apppointed by the Common Council of the City of Nappanee, one to be the Trustee of Scott School Township, one to be appointed by the Advisory Board of said township; that their terms should be for four years and their compensation should be $100 per year that the direction of said consolidated school should be under a superintendent to be selected by said School Board; and that thereafter the new School Board met and attempted to organize, and adopted certain resolutions and undertook the operation of said municipal corporation.
The amended information charged that the proceedings for the consolidation and the organization of said Nappanee Community Schools, a municipal corporation, were illegal and void in this:
'(a) The Resolution declaring an intention to consolidate contained no provisions regarding the election or appointment of a School Board, the number of members thereof or how they should be elected or appointed, their residence, term of office or other qualifications.
'(b) The ballots provided for said election and voted in said election provided no method for the election or appointment of a School Board.
'(c) The resolution declaring an intention to consolidate did not set out the names of the proposed School District, or whether it should be under the direction of the County Superintendant of Schools, or of a Superintendant of Schools selected and employed by the proposed School Board.
'(d) No resolution declaring an intention to consolidate the School Corporation of Scott School Township, Kosciusko County, Indiana, and of the School City of Nappanee of Elkhart County, Indiana, was ever adopted by the Trustee and Advisory Board of Scott School Township of Kosciusko County, Indiana.
'(e) No published notice of adoption of said resolution of intention to consolidate was ever given the legal voters of Scott School Township of Kosciusko County, Indiana, and no published notice thereof was given by the Trustee and Advisory Board of said Scott School Township.
'(f) No published notice of the time and place of an election to determine whether a majority of the legal voters of Scott School Township, Kosciusko County, Indiana, were in favor of such consolidation were given by the Trustee and Advisory Board of Scott School Township of Kosciusko County, Indiana, nor to the legal voters of Scott School Township, Kosciusko County, Indiana.
'(g) The Trustees of the said School City of Nappanee and the Trustee and Advisory Board of the said Scott Township had acquired no authority or power under the laws of the State of Indiana to adopt any effective resolution as adopted by them in meeting on the 5th day of July, 1947 and as set out in rhetorical paragraph 17 above, and all of the acts of the parties, resolutions adopted, authority assumed and powers exercised by said persons at said meeting were illegal and void.
'(h) The Act of setting salaries for the members of said illegal School Board for 'Nappanee Community Schools', was void and the payment of such salaries, which have been paid from tax monies collected upon persons and property assessed in said Scott Township, was and continue to be illegal and void.
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'(k) The Act of the General Assembly of the State of Indiana, entitled 'An Act concerning consolidation of two or more school corporations for school purposes' approved March 7, 1947 and being Chapter 123 of the Acts of the General Assembly of the State of Indiana for the year 1947, and being the Act under which the consolidation of said school corporations was purported to be had, in its form and as unamended as it existed during the periods of time complained of, was and is void for uncertainty.'
The amended information further charged that there was a second attempt to incorporate the same consolidated school corporation after the effective date of Ch. 268 of the 1949 Acts, which had amended certain provisions of the first consolidation Act, Ch. 123 of the 1947 Acts; that an election was held to determine said question on July 19, 1949, but that at said election 122 men and women who were legal voters, were illegally prevented from voting on the ground they were not registered voters of Scott Township, and that of the 122 legal voters excluded, 110 would have voted against consolidation, and the consolidation would have been thus defeated; and that the Township Trustee and Advisory Board of Scott School Township and the school trustees of the City of Nappanee in a joint meeting held July 20, 1949, had no authority to declare by resolution that a consolidation had been effected, the new corporation to be known as 'Nappanee Community Schools.'
On August 18, 1953, the appellants filed with this court a verified petition for the issuance of a restraining order and a temporary injunction to restrain the trustees and members of the Advisory Board of Scott Township, the officers of the Nappanee Community Schools, and the mayor and the city council of Nappanee, from contracting for and...
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