Lead Opinion
This is an appeal from a judgment dismissing a remonstrance filed in the lower court against the annexation of certain territory to the city of Aurora, Indiana, and taxing costs against the remonstrators.
On June 16, 1952, the Common Council of the city of Aurora adopted ordinance No. 363 redefining the corporate boundaries of the city of Aurora, thereby including certain territory sought to be annexed. See Burns’ 1950 Repl., §48-701-
On October 6, 1952, ordinance No. 375 was passed by the City Council reducing the territory sought to be annexed and repealing ordinance No. 363.
On October 20, 1952, ordinance No. 377 was passed. It was the same as 375 except that it corrected the
On July 25, 1952, the appellants filed timely remonstrance to 363 pursuant to the provisions of Burns’ 1950 Repl., §48-702. Remonstrances were also filed to 375 and 377. So far as we are advised those remonstrances are still pending in the court below. The judgment appealed from was rendered in the matter of the remonstrance filed to 363. By way of answer to that remonstrance, the appellee city alleged thе passage and publication of 375 and 377; alleged that because of their passage the issues presented by the remonstrance to 363 had become moot and prayed that said remonstrance be dismissed.
The case was heard on the pleadings and a stipulation of facts, and the court found and adjudged that the real controversy had been removed by the rеpeal of ordinance No. 363; that there was no matter before the court upon which the remonstrance could be considered; and that said remonstrance should abate and be dismissed. The appellants’ motion to modify the judgment and their motion for new trial were each overruled, and this appeal was perfected.
The appellants take the position that: (1) a city has no power at any time to amend or repeal an annexation ordinance which would have the effect of reducing the amount of territory from that originally defined, and (2) even if the city had such power, it would be suspended pending appeal to the circuit court.
Burns’ 1950 Repl., §48-702, provides that during the time that an appeal may be taken to thе circuit court, and pending such appeal, the territory sought to be annexed shall not be deemed a part of the annexing city. The territory involved has, therefore, never become a part of the city of Aurora, and so the question before us concerns annexation only
Pittsburgh, etc. R. W. Co. v. The Town of Crown Point (1896),
As a general rule a municipality which has been given the power to enact ordinances has, as a necessary incident thereto and without any express authorization in the statute, the power to modify or repeal such ordinances unless the power so to do is restricted in the law conferring it. The power is subject to the limitation that the repeal or change cannot be made so as to affect any vested rights lawfully acquired under the ordinance sought to be modified or repealed. Welch et al. v. Bowen (1885),
We find no restriction of the power-to modify or repeal ordinance 363 in the law conferring the authority to pass it, and there is no serious contention that repeal would affect any vested rights lawfully acquired thereunder. Furthermore, it is apparent on the face of §48-701 that the authority of the council to pass ordinances thereunder does not come within the limitation pointed out in Simpson v'. State, ex rel., supra. It would, therefore, seem, for aught yet. appearing, that the Common Council had full authority to repeal 363.
It is asserted, however, that the filing of the remonstrance in the circuit court effectively and completely transferred jurisdiction to the circuit court where it must remain exclusively until that court has rendered a final judgment on the question of annexation, or in other words, that pеnding the decision of the circuit court, the city was without power to pass further ordinances which could be effective to repeal the first, and here the appellants rely on Taylor et al. v. The City of Fort Wayne et al. (1874),
The case at bar is entirely unlike the case relied upon. In that case a proceeding had been instituted before the board of county commissioners which had for its purpose thе incorporation of a town. The city of Fort Wayne appeared and became a party to the proceedings. During the pendency of the proceedings
In that case, unlike this one, two authorities were claiming the right to occupy the same space at the same time. In this case there was no concurrent jurisdiction in the court and the council. A proceeding looking to the annexation of property could not be instituted before the court. It could only be instituted by the common council. The court had only the jurisdiction confеrred by statute which was in the nature of an appellate jurisdiction which it could assume and exercise only within the provision of the statute. We find nothing in Taylor et al. v. The City of Fort Wayne et al., supra, nor in City of Hobart v. State, ex rel. (1926),
Relying on Burns’ 1946 Repl., §2-901, and the cases of State ex rel. Hurd v. Davis (1949),
Sec. 2-901, swpra, enumerates the circumstances under which a civil action may be dismissed without prejudice. The Plantz case was an action brought by the plaintiff to enjoin the performance of a contract. The Davis case was an original action involving a petition filed by the relator to be declared an heir and devisee of a deceased persоn.
Sec. 2-901, supra, is §433 of the Civil Code (Acts 1881, ch. 38). The case at bar is a special proceeding to which the rule of the code of civil procedure does not apply in the particular under consideration. This is not a matter wherein the appellants asserted a cause of action which they were undertaking to pursue. The remonstrance here asserts a defense — not a cause of action. This proceeding is in the nature of an appeal and is so designated by §48-702 supra. The effect of the judgment below was to dismiss the appeal before final judgment had been rendered. Isley v. City of Attica (1915),
As above stated, the judgment in this case amounted to a dismissal of appellants’ appeal to the circuit court. Where the real controversy involved in an аppeal has been removed by the repeal of an ordinance or statute, and the question has, therefore, become moot the appeal will be dismissed. Riley v. Bell (1915),
Our conclusion in this сase is supported by both reason and authority. In City of Louisville v. Town of Crescent Hill (1899), Court of Appeals of Kentucky,
“When the petition was filed by the persons affected, resisting annexation, the city was not required to continue the litigation, if not deemed to its interest. The repeal of the ordinance proposing the annexation left no proposition of annexation in force for the court to pass on. After the original ordinance had been repealed the court could not have given judgment for the annexation of the territory. The jurisdiction of the court depended upon there being a proposition to annex the territory, and, when its annexation was not proposed, there was nothing for the court to try. The motion of the city to dismiss the case at its cost should have been sustained.”
See also Mitrus v. Nichols (1939), 13 N. Y. S. 2d 990,
Gilkison, J., not participating.
Emmert, J., dissents.
Dissenting Opinion
Dissenting Opinion
In view of the statutory рrovisions concerning the annexation and disannexation of territory to cities, I do not believe this court is warranted in holding that the City of Aurora had implied authority to repeal an ordinance of annexation when the matter was pending on appeal in the circuit court.
In City of Peru v. Bearss (1877),
“It is also fundamental that when one seeks the benefit of a statute, or seeks to enforce a statutory right, or liability, he must, by allegation and proof, bring himself clearly within its provisions. Woodward v. State (1910),
In determining the legislative intent of a statute, the courts will look to other statutes on the same subject matter and to the еvils and the mischiefs to be remedied. Dreves, Inc. v. Oslo School Twp. of Elkhart (1940),
Section 48-702, Burns’ 1950 Replacement, which is amended §243, of the municipal corporations Act of 1905, (Acts 1905, ch. 129, §243, pp. 388, 389; 1935, ch. 153, §1, p. 550; 1949, ch. 216, §2, p. 701), should be
“Whenever such territory is annexed to such city as provided in the foregoing sections, whether by general ordinanсe defining the city boundaries, or by special ordinance for the purpose of annexing territory, 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 cоurts of the county where such territory is situated within thirty [30] days after the last publication provided for in the preceding section; such turitten 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 stick 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. . . . 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. Upon the determination of such appeal, the judgment shall particularly describe the ordinance upon which the appeal is based, and it shall be the duty of the county clerk to forthwith deliver a certified copy of such judgment to the clerk of such city, who shall record the same in the ordinance record, and make a cross-reference to the page thereof upon the margin where such original ordinance was recorded. In case the decision is adverse to such annexation, no further annexation proceedings for such territory shall be lawful for two [£] years after the rendition of such judgment: . . .” (Italics supplied.)
Section 245 of the municipal corporations Act of 1905, (Ch. 129, 1905 Acts) provided:
“The common council shall have power by оrdinance to disannex and throw out any territory forming a part of the corporate limits of such city*640 upon a petition of a majority of the owners of real estate therein, . .
This section was superseded by §48-907, Burns’ 1950 Replacement (Acts 1907, ch. 279, §7, p. 617), which was more specific as to the procedure for disannexation. The next section of the 1907 Act, §48-908, Burns’ 1950 Replacement (Aсts 1907, ch. 279, §8, p. 617), provided that:
“No proceedings for disannexation or vacation shall be brought under this act, after the termination of a prior proceeding hereunder, affecting the same property, in which the same relief has been asked, until after the lapse of two [2] years from the termination of the prior proceedings.”
It is quite evident that the General Assembly regаrded instability of the jurisdiction by local government over territory in and near cities as a mischief to be avoided, and sought to provide a two year period when the status of such lands would not be disturbed. This was for the benefit of the political subdivisions, as well as the property owners. Both annexation and disannexation proceedings were limited to two-year periods, but the effect of the majority opinion is to thwart this definite legislative policy.
In Pittsburgh, etc., R. Co. v. City of Anderson (1911),
“In this State, municipal corporations possess and can exercise only such powers as are granted by the legislature in express words, and such powers as are fairly implied or incident to the powers expressly granted, and those essential to the declared objects and purposes of such corporations. Doubtful claims to power as well as any ' doubt or ambiguity in the terms used by the legislature, are resolved against the corporation. Pitts*641 burgh, etc., R. Co. v. Town of Crown Point (1896),146 Ind. 421 , 422, 35 L. R. A. 684, and authorities cited.
“The municipal authorities can in no case alter the boundaries unless the power so to do is conferred upon them by the legislature, _ and such power, when conferred, must be exercised under the circumstances and in the manner prescribed. 20 Am. and Eng. Ency. Law (2d ed.) 1151; 28 Cyc. 194-200.” (Italics supplied.)
The City of Aurora relies upon the decision in Mahuron v. City of Salem (1950),
In Simpson v. State, ex rel. (1912),
“But like most general rules there are exceptions to it. It applies ordinarily, of course, to all ordinances which have been passed pursuant to a general grant of discretionary or regulatory authority over the subject of the grant. It will not aрply where the ordinance has been enacted under a narrow, limited grant of authority to do a single designated thing in the manner and ■ at the time fixed by the legislature, and which excluded the implication that the common council was given any further authority over the subject than to do the one act." (Italics supplied.)
Note. — Reported in
Notes
. “In 43 C. J. 112, §66, it is stated: ‘A board or body other than the legislature may exercise powers with respect to_ the annexation of territory only when such powers are vested in it by the legislature, and then only to the extent of the powers expressly granted by the legislature; a municipality or its corporate authorities cаn in no case annex territory without authority conferred by statute or constitutional provision.’ (Our emphasis.)
“In