Ray v. Ripley School Township , 148 Ind. App. 33 ( 1970 )

Dissenting Opinion

Sharp, J.

My disagreement with the majority centers around the meaning of “substantially identical annexation resolution” within the meaning of Acts 1963, ch. 296, § 3, as found in Burns’ Indiana Statutes Annotated, § 28-6203 (1968 Cum. Supp.).

Apparently there are no Indiana cases which directly interpret the words “substantially identical”. However, in Sutto v. Board of Medical Registration and Examination, 242 Ind. 556, 565, 180 N. E. 2d 533 (1962), a majority of our Supreme Court, speaking through Judge Bobbitt, stated:

“We have been furnished no authority defining the phrase ‘substantially equivalent’, nor have we been able to find any by our independent research. We shall then consider the two words of the phrase independently of each other.

“Substantially a true copy” was defined by this court in Thomas v. State (1885), 103 Ind. 419, 426, 2 N. E. 808, 812, as not a full and exact copy, but rather of the material and essential parts or an abstract of them.

“Substantially” has also been defined as something which meets the requirements in its essential and material parts; Town of Chicotah v. Town of Eufaula (1911), 31 Okl. 85, 96, 119 Pac. 1014, 1019; Vannest v. Murphy (1907), 135 Iowa 123, 127, 112 N. W. 236, 238; and as “material,” “basic,” and “essential.” Roget’s Thesaurus in Dictionary Form (Mawson).

“Equivalent” means “equal” or “identical” of equal value, force, import and effect. Salt Lake County v. Utah Copper Co. (1937), 10 Cir., 93 F. 2d 127, 132.

In our judgment the Legislature, when it used the phrase “substantially equivalent” in the context of the Chiropractic Act of Indiana meant that which is equal in value in essential and material requirements.”

In Darlington v. Studebaker-Packard Corp., 191 F. Supp. 438, 439 (N. D. Ind. 1961), the court stated:

“When we say a thing is substantially the same we mean it is the same in all important particulars. If the change of words does not contribute to a new result, the change is not material and we can still say the new is ‘substantially the same’ as the old.”

The definitions in both of the above cases are adequate and relevant to the construction of the statute here in question.

It is correct that the resolution adopted by the losing and gaining school corporaions in this case were substantially identical to the extent that each of them covered the items listed in Acts 1963, ch. 296, § 3. However the resolution adopted by the losing corporation, Appellee Ripley School Township, contained an additional provision with reference to the representation on the governing board of the newly created school corporations. The subject matter of this additional provision was totally absent from the resolution of the acquiring corporation, Appellee Charles A. Beard Memorial School Corporation. Obviously, the provision with reference to representation contained in the Ripley School Township resolution was of vital importance to the taxpayers of that unit. It may be presumed that such provision was not inserted in the resolution idly but was inserted in it for a purpose. The purpose, rather obviously, was to persuade the voters of Ripley School Township to support the proposed annexation. As I read the majority opinion there is a strong inference that if the items as outlined in Acts 1963, ch. 296, § 3, are covered in the resolution and if the two resolutions are substantially identical on these points, then any additional matter contained in the resolution need not be substantially identical. If this is the case, I fear that the majority opinion is an open invitation for the placing of extraneous and misleading statements in such resolutions. Under the procedure involved in the present context the provisions with reference to representation in the resolution of Ripley School Township may well be misleading in that it implies that representation will be accorded as a matter of law to the extent “the territory . . . shall loe represented on the governing board. . . .” Following the remonstrance suit, or assuming that there is none filed, the annexation becomes effective. At this point Acts 1963, ch. 296, § 5A, as added by Acts 1965, ch. 439, § 1, p. 1396, and found as Burns’ Ind. Stat. Anno. § 28-6205 (a) (1968 Cum. Supp.) governs the selection of the governing body. As I understand that statute, the only protection providing for the representation of the annexed area is found in number 5 of the limitations, which reads as follows:

“(5) The plan shall provide representation for the annexed territory by including the annexed territory in an area from which the residents may be elected or appointed to the governing body.

Under the above section of the statute the annexed territory could merely be added as an appendage to a larger representative district from the acquiring corporation. This would be in considerable distinction from the kind of representation that is clearly implied and intended by the provision of the Ripley School Township resolution.

At that point there appears to be no remedy for the people of the annexed area from such a resolution. A remonstrance against this tacking the losing area onto a larger representative district is available only to the residents of the acquiring school corporation area, as the majority opinion acknowledges. See Burns’ Ind. Stat. Anno. § 28-6205 (b)-(d). It appears highly unlikely a remonstrance will be initiated by those people who keep total control of the enlarged school corporation by the annexation. Assuming no remonstrance, Appellants are not then within the protection of Acts 1949, Ch. 226, §§ 14(a), 15(a) & 18, found as Burns Ind. Stat. Ann. §§ 28-2444(a), 28-2445(a) and 28-2448. Those sections refer to new corporations and are only interposed as standards when a remonstrance is successful and the resolution concerning the annexation representation is defeated by the eligible voters of the acquiring corporation. See Burns’ Ind. Stat. Anno. § 28-6205 (d). Again, this is unlikely, and in no way provides legal protection for adequate representation on the school board of trustees to the people of the losing area. Thus, I believe that the resolutions in question are not substantially identical and may be misleading. In footnote 5 of the majority opinion the majority holds a true statement contained in one resolution but not the other does not make the resolutions not substantially identical because such resolutions cannot have any legal effect upon the representation. This is the exact problem: since the resolution has no effect on actual representation, it ought to be exactly true and leave no room for different interpretations. I believe the Ripley resolution may well hold out the promise of a representative from the losing district being on the acquiring board of school trustees without question. This is not true, as shown above, because Burns’ Indiana Statutes Annotated § 28-6205 (a) only guarantees the losing corporate area be included in an area from which a representative is chosen. As such, it is not a true statement and the surplusage then becomes a misleading inducement, a false promise. While as the majority opinion correctly states, the legal effect is the same for both resolutions, they are not then by logic legally “substantially identical” within the meaning of the governing statute. The essential and material points are open to diverse interpretations. I do not believe that we should put our judicial seal of approval upon the procedure which is followed in this case in order to effectuate a purported annexation.

Note. — Reported in 263 N. E. 2d 737.