Wright v. Kinnard, 368A44

• Decision Date: 01 April 1969
• Docket Number: No. 368A44,368A44
• Citation: 245 N.E.2d 835,17 Ind.Dec. 82,144 Ind.App. 286
• Parties: Emsley WRIGHT, John Artman, Daniel Vogel, Harold Schocke and Herman Moore for themselves individually and separately, and for and on behalf of all other citizens, school patrons and taxpayers of Union School Township, Boone County, Indiana, similarly situated, State of Indiana, on the Retation of Union School Township, Boone County, Indiana, Leo Everett, Trustee of Union Township, and Union School Township, Boone County, Indiana, Appellants, v. Walter O. KINNARD et al., Appellees.
• Court: Indiana Appellate Court

Page 835

245 N.E.2d 835

144 Ind.App. 286

Emsley WRIGHT, John Artman, Daniel Vogel, Harold Schocke and Herman Moore for themselves individually and separately, and for and on behalf of all other citizens, school patrons and taxpayers of Union School Township, Boone County, Indiana similarly situated, State of Indiana, on the Retation of Union School Township, Boone County, Indiana, Leo Everett Trustee of Union Township, and Union School Township, Boone County, Indiana, Appellants, v. Walter O. KINNARD et al., Appellees.

No. 368A44.

Appellate Court of Indiana, In Bank.

April 1, 1969.

Donald E. Bowen, Bowen, Myers, Northam & Givan, Indianapolis, for appellants.

David S. Richey, Parr, Richey, Obremskey & Pedersen, Lebanon, Theodore L. Sendak, Atty. Gen., Anthony Champa, Asst. Atty. Gen., for appellees.

SHARP, Judge.

The Appellants, Plaintiffs below, are citizens and taxpayers of Union Township, Boone County, Indiana, and one of the Appellants-Plaintiffs was Trustee of Union School Township, Boone County, Indiana. They filed this action as taxpayers in the Boone Circuit Court on April 26, 1967, against the Appellees as members of the Boone County Committee for the Reorganization of School Corporations and against other Appellees as members of the State Commission for the Reorganization of School Corporations for the State of Indiana. The Appellants petitioned for judicial review and for a declaratory judgment against the Appellees. The salient allegations of said verified petition were that the County Committee on April 11, 1967, purported to approve a comprehensive plan for the reorganization of school corporations in Boone County, Indiana, and thereafter on April 19, 1967, the State Commission purportedly approved said plan. The heart of the Plaintiffs' verified petition is rhetorical paragraph 7, which states:

'That the said order, decision and determination of said State Commission for the Reorganization of School Corporations is attached hereto, marked 'Exhibit B' and hereof made a part.

'That the actions of the County Committee as hereinafter alleged, and of the State Commission in approving the purported Final Comprehensive Plan for the Reorganization of School Corporations of Boone County, Indiana, were:

'(1) Arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law; and

'(2) In excess of statutory jurisdiction, authority or limitations, and short statutory right; and

'(3) Without observance of procedure required by law; and

'(4) Unsupported by substantial evidence by reason of the following facts:

'(a) That heretofore during the year 1964 the County Committee and the State Commission held hearings purporting to approve on July 28, 1964, a comprehensive plan for the reorganization of schools of Boone County, Indiana, which plan was approved as adopted by the County Committee providing for the merger of Eagle and Union Townships into a community school corporation, which plan was identical to the plan approved by the State Commission on April 11, 1967. Thereafter a verified petition for a temporary and permanent injunction and for judicial review and declaratory judgment was duly filed by these plaintiffs. On the day before the date set for hearing before Special Judge Howard Sommers for hearing on plaintiffs' application for a temporary injunction and on September 17, 1964, the State Commission held a hearing, reversed itself after a public hearing and disapproved the said comprehensive plan, which is identical with the plan which has now been again purportedly approved by the State Commission on April 11, 1967.

'(b) That after such disapproval the State Commission duly notified the County Committee of the disapproval of the plan calling for the merger of Eagle and Union Townships into a community school corporation and gave the reasons therefor as hereinafter set out herein. Later, more than 90 days thereafter, without any request on the part of the County Committee for an extension of time of the State Commission the County Committee again sought to secure the approval of the State Commission for the same identical plan as to all of its component parts to the previous plan for the merger of Eagle and Union Townships which had been disapproved. Hearings were held and thereafter the State Commission, upon a request for approval by the County Committee, after a public hearing, purported to approve a comprehensive plan on November 2, 1965, which provided for the merger of Union and Eagle Townships into a single community school corporation under a plan which is and was the same and identical plan as the plan disapproved by the State Commission on September 17, 1964, and the present plan approved by the State Commission on April 11, 1967, calling for the merger of Union and Eagle Townships into a community corporation, without any change whatsoever in such plan and without any showing of evidence that there had been any change of conditions from the conditions found the date that the State Commission on September 17, 1964, had determined in passing upon the same identical plan that the Eagle and Union Community School Corporation would not further school reorganization in Boone County, Indiana, and would not give the pupils in those two proposed school corporations equal educational opportunity nor provide the equalization of tax support thereof.

'That such previous order of disapproval of the previous proposed merger of Eagle and Union Townships as shown by the minutes of the State Commission recited that such disapproval was ordered by the State Commission 'for the reason that * * * the Eagle-Union Community School Corporation would not further school reorganization in Boone County and would not give the pupils in those two school corporations equal educational opportunity nor provide the equalization of tax support thereof.'

'(c) Later, more than 90 days thereafter, on May 26, 1965, and eight months thereafter, without any extensions or requests for extensions of time granted by the State Commission, the State Commission upon the request of the County Committee again purported to adopt an identical plan purporting to provide for a merger of Eagle and Union Townships of Boone County, Indiana. The said State Commission, again later on November 2, 1965, entered an order and finding purporting to approve the same identical plan for the merger of Eagle and Union Townships. Thereafter the plaintiffs herein duly filed a verified petition for judicial review as well as a complaint for restraining order, temporary injunction, permanent injunction and for a declaratory judgment, the same being causes numbered 24329 and 24339 in the Boone Circuit Court, respectively.

'That a change of venue was duly granted in said causes and both of said causes were transferred to the Clinton Circuit Court on change of venue and consolidated for trial on request of the State Commission.

'That following extended hearings in the Clinton Circuit Court an opinion, finding and judgment was rendered therein in the Clinton Circuit Court by Judge Everett Lucas, a copy of which opinion, finding and judgment is attached hereto, marked 'Exhibit C' and hereof made a part. That by this finding and judgment of the Clinton Circuit Court which shows that the order, decision and determination of the State Commission for the Reorganization of School Corporations was contrary to any statutory authority given to the State Commission--in that the final comprehensive plan purportedly approved by the State Commission was not a revised plan as is required by the provisions of said aforementioned statute within 90 dayd after notification of previous nonapproval.

'All of the defendants in this proceeding were defendants in such consolidated causes of action in the Clinton Circuit Court, the same being causes numbered 19349 and 19350 in the Clinton Circuit Court. That said aforementioned judgment in said consolidated cause was not appealed from and is a valid, binding and final judgment against the defendants herein.

'That by its judgment and order the Clinton Circuit Court adjudged that the statute was valid and binding on the State Commission, that if any reorganization plan or part thereof submitted by any County Committee is found by the State Commission to be unsatisfactory, the State Commission shall so notify the County Committee concerned within 60 days after the time of the public hearing stating the reasons for nonapproval or partial nonapproval and upon the request of the County Committee the State Commission shall assist said County Committee in revising the plan so as to make it satisfactory, and that 'Such revised plan shall be resubmitted to the state commission by the county committee within ninety (90) days after notification of nonapproval.'

'Appellants allege that the County Committee and State Commission under the final judgment in te Clinton Circuit Court do not possess the statutory power, jurisdiction and authority to resubmit the same identical plan again as has been done in the instant case, and therefor the purported adoption of the plan by the County Committee, and purported approval of the same on April 11, 1967, is extremely arbitrary, capricious and an abuse of discretion; otherwise, not in accordance with law and in excess of statutory jurisdiction, authority or limitations or short of statutory right and without observance of procedure required by law, and that the judgment of the Clinton Circuit Court is a valid and binding judgment which prohibits the County Committee and the State Commission from proposing and approving the same identical plan, without revision, which has been attempted on the numerous occasions as heretofore set out herein.

'(d) Plaintiffs further allege that the purported approval of the State Commission on April 11, 1967, is wholly unsupported by any substantial evidence in that it does not contain any informal finding of facts, and that the State...