CITY OF INDIANAPOLIS ETC. v. WYNN ET AL.
No. 29,724
Supreme Court of Indiana
April 22, 1959
Rehearing denied June 16, 1959.
159 N. E. 2d 563 | 157 N. E. 2d 828
The trial court is directed to set aside its order dismissing this action and is directed to grant a new trial, hear the objections on the motion to dismiss and to permit the filing of the supplemental complaint, with further proceedings herein in conformity with this opinion.
Achor, C. J., and Bobbitt, Jackson and Landis, JJ., concur.
NOTE.—Reported in 159 N. E. 2d 563.
Lewis E. Marine and L. Russell Newgent, both of Indianapolis, for appellees.
BOBBITT, J.—This action is here because it presents the question of the validity of an Ordinance of the City of Indianapolis, the purpose of which was to annex an area entirely surrounded by such city and known as the Town of Woodruff Place. (
On September 9, 1953, the Common Council of appellant City of Indianapolis passed Special Ordinance No. 11,1953 to annex certain territory described therein, and providing that such Ordinance be in full force and effect “from and after its passage, approval by the Mayor, and publication according to law.”1 The Ordinance was signed and approved by the Mayor on
On October 20, 1953, more than 51% of the persons owning property in the civil town of Woodruff Place filed an appeal from such annexation as provided by
“Whenever such territory is annexed to such city as provided in the foregoing sections, . . . an appeal may be taken from such annexation by one [1] or more persons deeming himself or themselves aggrieved, or injuriously affected, filing their remonstrances in writing against such annexation, together with a copy of such ordinance, in the circuit or superior courts of the county where such territory is situated within thirty [30] days after the last publication provided for in the preceding section; such written remonstrance or complaint shall state the reason why such annexation ought not in justice take place. . . . The court shall thereupon proceed to hear and determine such appeal without the intervention of a jury, and shall give judgment upon the question of such annexation according to the evidence which either party may introduce relevant to the issue. . . . If the court shall be satisfied that fifty-one [51] per cent or more of the persons owning property in the territory sought to be annexed, have remonstrated, then such annexation shall not take place, unless the court shall find from the evidence that the prosperity of such city and territory will be materially retarded and the safety of the inhabitants and property thereof endangered without such annexation. In case the court shall so find, the annexation shall take place, notwithstanding the remonstrance. . . . Pending such appeal, and during the time within which such appeal may be taken, such territory sought to be annexed shall not be deemed a part of the annexing city.”
Thereafter, on November 7, 1956, defendant-appellant filed its answer as by such statute provided.
Appellant filed answer to appellees’ supplemental petition asserting, inter alia, that the annexation of the Town of Woodruff Place was accomplished and completed by the enactment of Special Ordinance No. 11,1953, supra, subject only to review by the court as provided by
The trial court, on July 3, 1958, entered judgment on
We proceed to determine the questions presented by remonstrators-appellees’ supplemental petition and defendant-appellant‘s answer thereto without regard to certain procedural questions which are properly presented by appellant.
First: What is the status of Special Ordinance No. 11,1953, supra?
The effect of the trial court‘s judgment is to make the proviso in § 4 of ch. 269 of the Acts of 1955, being § 48-703, Burns’ 1957 Cum. Supp., supra, retroactive. Such proviso is as follows:
“Provided, however, That no incorporated city or town regardless of population shall be annexed under any of the provisions of sections 242, 242a and 243 [§§ 48-701, 48-701a, 48-702] of this act but shall only take place in accordance with the provisions of section 241 [§ 48-601] of this act.”
The annexation proceeding herein was had under § 242 of the 1905 Annexation Act, being § 48-701, Burns’ 1950 Replacement, supra.
Annexation is a legislative function and does not become a judicial question except on review as provided by statute. Vesenmeir et al. v. City of Aurora, etc. (1953), 232 Ind. 628, 634, 115 N. E. 2d 734; Mahuron v. City of Salem (1950), 120 Ind. App. 247, 251, 91 N. E. 2d 648; Rhyne, Municipal Law, §§ 2-32, 2-33, pp. 30, 31.
The Common Council of the City of Indianapolis, acting under the authority of the above statute, annexed the contiguous territory consisting of the Town of Woodruff Place on September 9, 1953, by the enactment of Special Ordinance No. 11,1953. When such Ordinance was signed by the Mayor and published as provided by law, the annexation of the territory (Woodruff Place) described therein was completed, subject only to review by the courts as provided by statute.
Sections 48-701 and 48-702, Burns’ 1950 Replacement, supra, were then (September 9, 1953) in full force and effect. As was said in Link v. Karb (1914), 89 Ohio St. 326, 104 N. E. 632, 634, “If the council was . . . authorized to pass this ordinance when it did pass it, if . . . this ordinance were then and there a valid . . . ordinance, requiring only the action of ministerial and executive officers to carry their provisions into full force and effect, it would be idle to say that any subsequent change in the law could affect their validity or render invalid any proceedings of council that were valid at the time such proceedings were held.”
“It is a maxim of the law that statutes must be construed prospectively, unless they plainly import a different intention on the part of the legislature.” Hopkins v. Jones (1864), 22 Ind. 310, 315.
See also: Lang, Treasurer v. Clapp, Administrator (1885), 103 Ind. 17, 23, 2 N. E. 197; Chadwick, Treasurer v. City of Crawfordsville (1940), 216 Ind. 399, 413, 414, 24 N. E. 2d 937, 129 A. L. R. 469. Such intention does not appear from the provisions of the Annexation Act of 1955.
This court has specifically held that an Amendatory Act takes effect from its passage and has no retroactive effect unless otherwise expressly provided therein. State, ex rel. Taylor et al. v. Mount, et al. (1898), 151 Ind. 679, 693, 51 N. E. 417.
See also: Schock et al. v. Chappell (1952), 231 Ind. 480, 486, 109 N. E. 2d 423.
The annexation of contiguous territory is a substantive right conferred upon cities by § 242 of ch. 129 of the Acts of 1905, and the Common Council of Indianapolis could lawfully exercise that right, within the limitations of the statute so long as it remained in force.
In the case at bar the legislative branch of the city (Common Council) had exercised such right and had fully completed its work of annexation. All Ordinances and proceedings necessary were fully enacted and completed on September 10, 1953. All steps and acts required under § 242 of ch. 129, supra, had been taken and completed when the Ordinance was signed by the Mayor, except certain purely ministerial duties of the
The only result of appellees’ remonstrance was (1) to abate the culmination of the annexation pending a review by the courts; and (2) to place upon appellant city the burden of sustaining the annexation in the courts as provided by statute. Vesenmeir et al. v. City of Aurora, etc., supra, (1953), 232 Ind. 628, 631, 115 N. E. 2d 734.
Section 4 of ch. 269, Acts 1955, being § 48-703, Burns’ 1957 Cum. Supp., supra, is not an amendment to § 242 of ch. 129 of the Acts of 1905, being § 48-701, Burns’ 1950 Replacement, supra, but to § 244 of ch. 129 of Acts of 1905, as amended, and hence must be considered here under the rules pertaining to repealing statutes and treated as such, rather than as an Amendatory Act because the provision of § 4 of ch. 269, supra, which prohibits the annexation of any incorporated city or town, regardless of population, under any of the provisions of “sections 242, 242a and 243” of the 1905 Annexation Act, or Amendatory Acts thereto, repeals the provisions in §§ 242 and 244, as amended, that authorize the annexation of any city or town with a population of less than 1700.
It has been generally held that an Act repealing the authority of a municipality to issue bonds does not prohibit the consummation of an issue of bonds, authorized under a law in force prior to the effective date of such repeal, where all steps required by the authority
It seems to us that the circumstances surrounding the annexation ordinance in the present case are analogous to the situation pertaining to municipal bonds, as above described, and the rule there stated is directly applicable here.
The annexation herein having been completed insofar as the legislative functions are concerned, Special Ordinance No. 11,1953, supra, is valid, and such annexation will be consummated under its terms and conditions unless set aside by the courts as provided by statute.
Acts 1955, ch. 269, § 4, p. 720, being § 48-703, Burns’ 1957 Cum. Supp., supra, speaks only of the time it became effective and did not affect the annexation herein which, as hereinabove stated, was done under a statute that was valid and in full force and effect at the time Special Ordinance No. 11, 1953, supra, was enacted and signed by the Mayor.
See: Murray v. Tyndall, supra (1945), 223 Ind. 641, 63 N. E. 2d 703.
Second: Having determined that the Ordinance is valid, we must now consider the further procedure to be followed in this case when it is remanded to the trial court.
No hearing has been had on the remonstrance.
“. . . evidence demonstrating the presence of the following conditions shall be considered the primary determinants of the annexation‘s merit:
“(a) The annexation is in the best interests of the city and of the territory sought to be annexed.
“(b) The area is urban in character, being an economic and social part of the annexing city.
“(c) The terms and conditions set forth in the ordinance are fair and just.
“(d) The city is financially able to provide mu-
nicipal services to the annexed area within the reasonably near future. “(e) The area sought to be annexed, if undeveloped, is needed for development of the city in the reasonably near future.
“(f) The lines of the annexation are so drawn as to form a compact area abutting the municipality.”
For the purposes of this opinion the requirements in § 3 of ch. 269, supra, fall within the category of procedural rules2 and supersede those requirements necessary to be shown under the provision of the 1949 Acts, supra. This being true, the trial court cannot now proceed under the amended (1949) statute to determine whether the annexation should be permitted because pending litigation was not saved by a proper clause in the conflicting Amendatory Act. Taylor v. Strayer (1906), 167 Ind. 23, 28, 78 N. E. 236, 119 Am. St. Rep. 469; Hunt and Wife v. Jennings (1839), 5 Blackf. 195, 196, 33 Am. Dec. 465.
While the amended statute (
Under circumstances such as those existing in this case, where § 3 of ch. 269 of the Acts of 1955, is a sub-
Any provisions added by the amendment that affect procedural rights—legal remedies—apply to all cases pending at the time of its enactment. 1 Sutherland Statutory Construction (Horack), 3d Ed., § 1936, p. 436.
For the foregoing reasons the judgment of the trial court herein is contrary to law, and must be reversed for further proceedings in accordance with this opinion.
Judgment reversed with instructions to the trial court to proceed to hear appellees’ remonstrance to such annexation pursuant to
Landis, C. J., Arterburn and Jackson, JJ., concur.
Achor, J., dissents with opinion.
DISSENTING OPINION
ACHOR, J.—The majority opinion correctly decides, first, that the annexation of the area in question was completed by the Common Council of Indianapolis under
Under the 1905 Act the right of annexation was made conditional upon the right to resist such annexation on the basis of specified standards stated as part of that act. Thus the right to resist annexation was a substantive right of equal force to the right of annexation itself. For this reason the right to contest the annexation under the 1905 statute was not merely a procedural matter relating to the mode, time and manner of contesting the annexation, it related to the right of annexation itself. Therefore, the cases involving the construction of amendatory, remedial or procedural statutes are not controlling. See 82 C. J. S., § 421, p. 996.
The general rule regarding the retrospective effect of amendatory statutes has been stated as follows:
“Retroactive legislation changing rights is not favored, and the rule that statutes are not to be construed retrospectively unless such construction was plainly intended by the legislature applies with peculiar force. Hence, in so far as affecting vested rights, a statute will be construed as prospective only, and not as operating retrospectively or retroactively, unless that intention is made manifest either by express words or by a clear, distinct, necessary, plain, strong, or unmistakable, implication. . . .” 82 C. J. S., § 417, pp. 994-995.
For these reasons, I am of the opinion that the appellees, having undertaken to resist the annexation under the act which authorized such annexation, are entitled to continue the prosecution of their action on the basis of the standards provided in the 1905 Act which authorized the annexation.
BOBBITT, J.—Michael L. Fansler, a distinguished former member of this court, and Gustav H. Dongus, both members of the Indianapolis Bar, have filed a brief as amici curiae on rehearing in which they assert that both the 1955 Act,1 and the 1949 Act2 are unconstitutional insofar as they attempt to vest the trial court with jurisdiction to determine whether the annexation is in the best interests of the city.
Amicus curiae must accept a case as he finds it. 3 C. J. S., Amicus Curiae, § 3 (c), p. 1049. The question which amici curiae seek to present here was not raised by either the appellees or the appellant; therefore, no question is presented which this court can properly consider. Indiana State Board of Medical Reg. v. Seulean (1942), 219 Ind. 321, 328, 37 N. E. 2d 935.
It has been uniformly held in Indiana that a constitutional question will not be considered on appeal unless it was presented in the trial court. Jones et ux. v. Stawicki et ux. (1953), 233 Ind. 272, 274, 111 N. E. 2d 718.
Appellees, in a supplemental brief on rehearing, attempt, for the first time, to raise the question of the omission of necessary parties as appellees. This question was not briefed or urged in appellees’ brief on appeal, and it cannot be raised for the first time on petition for rehearing. Armstrong v. Hufty (1901), 156 Ind. 606, 630, 631, 60 N. E. 1080; Pittsburgh, etc., R. Co. v. Lightheiser (1907), 168 Ind. 438, 467, 78 N. E. 1033.
“If there was any defect in the parties named in the complaint in the court below, it should have been properly raised there.
“. . . it is too late here [on appeal] for the appellee to raise any question as to a defect or failure to properly name parties in the assignment of errors, which could have been called to the attention of the parties in the trial court below, as revealed by the complaint filed therein.”
Appellees’ petition for rehearing presents nothing which was not carefully considered in the original opinion and no cause for granting a rehearing has been shown.
Rehearing denied.
Achor, C. J., Arterburn, Jackson and Landis, JJ., concur.
NOTE.—Reported in 157 N. E. 2d 828.
Rehearing denied in 159 N. E. 2d 572.