VESENMEIR ET AL. v. CITY OF AURORA, ETC.
No. 29,091
Supreme Court of Indiana
December 1, 1953
115 N. E. 2d 734
“Q. Where was this done?
“A. In Police Headquarters.
“Q. What was the result of your count?
“A. All of the money was intact.
“Q. Was this United States currency?
“A. Yes, it was.”
The foregoing testimony was undisputed. The court was justified in finding, from the evidence above recited, that appellant stole, took and carried away more than $25 in United States currency, which was the personal property of Christ Kuzman as charged in the affidavit. This is sufficient to sustain the finding and judgment of the trial court.
Judgment affirmed.
Gilkison, J., not participating.
NOTE.—Reported in 114 N. E. 2d 882.
Hartell F. Denmure, of Aurora, for appellee.
DRAPER, C. J.---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
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
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 repeal 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) evеn if the city had such power, it would be suspended pending appeal to the circuit court.
It is true that doubtful claims to power, as well as any uncertainty or ambiguity in the terms used by the legislature are resolved against the corporation. Pittsburgh, etc. R. W. Co. v. The Town of Crown Point (1896), 146 Ind. 421, 45 N. E. 587; Pittsburgh, etc. R. Co. v. City of Anderson (1911), 176 Ind. 16, 95 N. E. 363. It is further true that a legislative scheme has been provided for the disannexation of territory which has already become a part of a municipal corporation. But we can find in that fact no evidence of a legislative intent to forbid the repeal or modification of an annexation ordinance which has not yet become effective and under which the status of the territory involved has remained unchanged.
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), 103 Ind. 252, 2 N. E. 722; Lowe v. McKnight (1931), 202 Ind. 565, 174 N. E. 424; Terre Haute and Logansport Railroad Co. v. City of South Bend (1896), 146 Ind. 239, 45 N. E. 324; City of Michigan City v. Brossman (1938), 105 Ind. App. 259, 11 N. E. 2d 538; Mahuron v. City of Salem (1950), 120 Ind. App. 247, 91 N. E. 2d 648; 37 Am. Jur., Municipal Corporations, §197, p. 834; 62 C. J. S., Municipal Corporations, §435 b, p. 835. The rule does not apply where the ordinance has been en-
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
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 thаt court has rendered a final judgment on the question of annexation, or in other words, that pending 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), 47 Ind. 274.
The case at bar is entirely unlike the case relied upon. In that case a proсeeding had been instituted before the board of county commissioners which had for its purpose the 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), 198 Ind. 574, 154 N. E. 384, upon which appellants also rely, which supports the proposition asserted.
Relying on
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 appeal has been removed by the repeal of an ordinance or statute, and the question has, therefore, become moot the аppeal will be dismissed. Riley v. Bell (1915), 184 Ind. 110, 109 N. E. 843; Bullock v. Jameson (1915), 183 Ind. 81, 108 N. E. 231; Keller, Mayor, v. Rewers (1921), 189 Ind. 339, 127 N. E. 149; City of Bloomington v. Board of Com‘rs. (1951), 229 Ind. 419, 99 N. E. 2d 79; and see Mahuron v. City of Salem, supra.
Our conclusion in this case is supported by both reason and authority. In City of Louisville v. Town of Crescent Hill (1899), Court of Appeals of Kentucky, 52 S. W. 1054, the same question was presented under similar statutory рrovisions. The city of Louisville passed an ordinance describing property sought to be annexed. The appellee brought an action to prevent said annexation. Before the day set for trial of the case the city passed another ordinance repealing the first. The court said:
“When the petition was filed by the persons affected, resisting annexation, the city was not required to cоntinue 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, 171 Misc. 869; Gormley v. Day (1885), 114 Ill. 185, 28 N. E. 693.
Gilkison, J., not participating.
Emmert, J., dissents.
DISSENTING OPINION
EMMERT, J.—In view of the statutory provisions 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 аnnexation when the matter was pending on appeal in the circuit court.
In City of Peru v. Bearss (1877), 55 Ind. 576, 581, 582, this court correctly held, “the entire proceedings for the annexation of contiguous territory to incorporated cities are statutory proceedings; and to make them operative and give them validity, it is essentially necessary that all the proceedings should be in strict conformity with the provisions and requirements of thе statute.” See also Windman v. City of Vincennes (1877), 58 Ind. 480, 484. In annexation proceedings the method provided by the statutes shall be followed and no other. City of Delphi v. Startzman (1885), 104 Ind. 343, 346, 3 N. E. 937. “The rule is that where the legislature creates a right and prescribes a remedy,1
“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), 174 Ind. 743. Indianapolis etc. Transit Co. v. Foreman (1904), 162 Ind. 85.” City of Indianapolis v. Evans (1940), 216 Ind. 555, 564, 565, 24 N. E. 2d 776.
In determining the legislative intent of a statute, the courts will look to other statutes on the same subject matter and to the evils and the mischiefs tо be remedied. Dreves, Inc. v. Oslo School Twp. of Elkhart (1940), 217 Ind. 388, 395, 28 N. E. 2d 252; Bd. of Commrs. v. Millikan (1934), 207 Ind. 142, 152, 190 N. E. 185, supra; Chicago & Calumet District Transit Co., Inc. v. Mueller (1938), 213 Ind. 530, 12 N. E. 2d 247.
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 seсtions, whether by general ordinance 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 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. . . . 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 procеedings for such territory shall be lawful for two [2] 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 ordinance to disannex and throw out any territory forming a part of the corporate limits of such city
upon a petition of a majority of the owners of real estate therein, . . .”
This section was superseded by
“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 prоceedings.”
It is quite evident that the General Assembly regarded 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), 176 Ind. 16, 18, 95 N. E. 363, this court held that lands could only be disannexed in strict compliance with the statute, and said:
“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-
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), 120 Ind. App. 247, 91 N. E. 2d 648, to sustain the action of the trial court in dismissing the appeal as moot. The exact state of the record in the Mahuron case, supra, is none too clear. Apparently what the court decided was that a finding was contrary to law which included therein territory not embraced in an annexing ordinance, as amended by another ordinance passed when the appeal was pending. The reasoning of the court on the power of cities to enact and repeal ordinances was correct as far as it went, but the important exception was omitted, and it is the exception which should govern this appeal at bar.
In Simpson v. State, ex rel. (1912), 179 Ind. 196, 201, 202, 99 N. E. 980, this court recognized the general implied right to repeal, but said:
“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 apply where the ordinаnce 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 115 N. E. 2d 734.
STATE OF INDIANA EX REL. JORDAN, ADMINISTRATRIX, ETC. v. PROBATE COURT OF MARION COUNTY, WHITE, JUDGE.
[No. 29,056. Filed October 15, 1953. Rehearing denied December 3, 1953.]