*1 585 Thrawley reasoning case reaffirm the We Ap prejudicial to a defendant. and not sound trial pellants been harmed have not their motion to sub to sustain court’s refusal Jury copy of of the Grand mit a the minutes They had the statu examination. court its Jury tory right calling a member of the Grand They pro testify could have failed to do. alleged arbitrary any from accusa tected themselves thereby. tion
Judgment affirmed. Landis, JJ.,
Achor, J., and Arterburn and concur. C. Jackson, J., concurs result. Reported N. E. 2d 271.
Note. — et
Town al. v. Monaldi. 30,370. September Filed Opinion September 24, corrected 1964.] *2 Hamacher, both William F. and Wendell C. Carroll Point, appellants. of Crown for Hand, McHie, Peters, McHie, Enslen & G. Edward Hammond, appellee. of for declaratory for a an action C. J. —This is
Achor, judgment control ordi- to construe subdivision Dyer and to determine nance of the of 354] town appellee’s rights under ordinance and under said (Resolution) Ordinance No. 429. following controversy by arose reason “plans Appellee approval of
events. his first secured for new described installation” of a subdivision 1, Dyer This Second Addition.1 Unit Estates by adoption No. 429 by of Ordinance effected was subsequent approval by of that the town board and body, acting of the town Plan Commission as the installing began Dyer. appellee approval, After such improvements sewers, streets, said sub- and other division. sanitary provided a “plans installation” for 1. These They system. supply later main and a water provide installation to also for the alternative amended according septic However, evidence as recited tanks. plats nothing appellants’ brief, on these which shows
in whether “there any on lot therein connect into a house septic tank; be a . .” sewer or whether there would . granted without However, was the above plans there- receiving approval of the the written first superin- of Health and the Board for from the State Works, provided Dyer tendent of the Dyer. town of control ordinance legal by upon being counsel Thereafter, their advised provision of the ordinance compliance with this that of the town mandatory, of trustees the board was plat approval of his Dyer appellee notified make would refuse to had been revoked and building per- inspection issue installations mits his lots. against filed
This action then the board three members and the town appellants appellants. The who are trustees Anderson, came into this ac Lembcke, Dempsey, and intervening be in the action below tion as defendants persons presently serviced they were cause *3 allegedly existing sewer, use thereof the whose damaged of additional burden be result as sewage placed if the which would thereon appellee’s proposed connected of subdivision was being 125, §1, p. 111, 1968, ch. therewith. Acts §53-701, Repl. (1963 Supp.). Burns’ by complaint
The as established issues are: plat of appellee’s subdivision for 1. Was Unit 1, Dyer Addition, legally approved by Second Estates and of of the Plan Commission the board trustees Dyer? of town proceed
2. Is the entitled to with the de- velopment improvement and of said subdivision on the approval? basis findings and entered
The trial court made a manda- judgment tory appellee.
Among things, appellants assign other herein overruling error appel- that the trial court erred in trial, lants’-intervenors’ motion for new in the follow- ing particulars: finding
1. The of the court is not sustained suf- ficient evidence. finding
2. The contrary of the court to law. Specifically, is asserted that the court erred in upholding validity ordinance approved appellee’s plat subdivision, though even adopting the town board in said ordinance comply failed to with the conditions adoption prescribed such ordinance as subdivision control Dyer, ordinance the town of the same Ordinance No. 354. pertinent parts of Ordinance No. 354 are as fol-
lows: IV,
Title Section 8-2: “2. The subdivider complete plans shall submit specifications and improvements, of all re- quired under Ordinance, this 4 of Town examination, inspection Board for ap- and proval by proper officers, boards commis- sions, provided....” as hereinbefore III, Title Section 4-3: “The the installation Sanitary of a System Sewer prepared by shall be the subdivider approved by the Town Board and Indiana
State Board Health....” Section 4-4: *4 plans “The for installation of a Sup- Water Main ply System and Municipal prepared shall be the subdivider approved by Superintendent the Dyer of the Utility Water and Indiana State Board emphasis.] Health....” [Our were not Admittedly, “plans for installation” such Health Board of approved by State either the Indiana Municipal Dyer superintendent the the plans had if Utility, that such and there is evidence approved have been been would not submitted by the State Board of Health. appellee the
However, the it is contended plans only requiring purpose of such proposed and water for installation of the systems in its “in board is to assist the town Further, systems. spection approval” of and said appellee town board case the cites the fact that this capac acting Commission, dual and Plan their specifica give ity, and did their subdivision, con and this tions such requirements of Title tends constituted a waiver 4, supra, do 4-3 Ordinance. We and of said not concur in this contention. particularly ordinance, control and subdivision merely parlia- thereof, prescribe did
section mentary procedure ordi- for the enactment of future pertaining control, it established nances to subdivision requirements certain as conditions pursuant adoption of all enacted other ordinances Furthermore, thereto. a fact to be considered only enacted not for the benefit the ordinance was corporation, protection but of the town protection individual and benefit also adversely might town who otherwise citizens proposed. by developments here as that affected admittedly repeal The town board could amend or control eliminate ordinance so as to 4, supra, but long requirements so section requirements force, as these thereby, board bound and the citizens had *5 590 right and their elected town board
a to assume that the representatives respect condi and follow the would general tions in the as contained State, Swindell, Mayor, The etc., control ordinance. v. 528; 153, Maxey (1895), 42 E. ex rel. et al. Ind. N. 143 4; §443, p. 855, 3, v. Wade 62 J. n. Carbondale C. S. 662; Village App. 654, Larchmont (1902), 106 v. Ill. 929; (1961), 245, Sutton Y. S. 2d 30 Misc. 2d 217 N. (1961), H. A. 433. Mason v. Salem 103 N. 2d controlling general rule of of the law which is stated, issue has before us been as follows: procedure mode enactment “Where the in the authority committed or ordinances is to power council, regu- municipal not of the and is municipality, lated the charter such law may procedure mode of fixed an ordinance govern, long force, is in will so of all Am. Jur. the enactment ordinances.” 37 p. §144, 757. rule, power municipal corpo “Thus, of a legislate to in the ration must be exercised prescribed, or the enactment will manner be considered void and set aside.”
62 C. J. S. Municipal Corporations §416, p. 798 See: etc., Maxey Swindell, Mayor, rel. The State ex v. supra 153, 42 al., Ind. N. E. See et 528]. [143 McQuillin Municipal Corporations, on also: §16.10, p. 173, p. at
Judgment reversed. JJ., Myers, J., Arterburn, & concur. Jackson Landis dissenting concurring part, opin- part an with ion. Opinion. Dissenting
Concurring And majority part Jackson, J. —I dissent reading opinion as follows: “Admittedly, ‘plans were for installation’ approved by either the Indiana State Board Superintendent of Health or the Municipal Utility, and there is evidence if such submitted approved by not be the State Board of Health.” of the ordinance reads as follows: §4-3 provide “3. Sewers: The subdivider shall complete Sys- Sanitary subdivision with a Sewer sanitary tem which connect shall with a outlet, provide disposal *6 sewage by septic absorption of and means with tanks system, laid out constructed in accordance published with the of the Indi- recommendations ana State Board of Health.” Here the alternative to system employed, septic tanks, was i.e. consequently all that required septic was tanks was that laid out and pub- constructed accordance with the lished recommendations the Indiana State Board of Health.
I majority concur in opinion result with compliance reference with 4-4, holds that supply the water main required was obtained, hence the action of withdrawing board the subdivision for such failure was correct. Reported N. E. 268. 2d
Note. —
Hayden v. State Indiana. 30,363. Rehearing Filed June denied September 25, 1964.]