Forsyth v. City of Hammond

• Decision Date: 16 January 1896
• Citation: 71 F. 443
• Parties: FORSYTH v. CITY OF HAMMOND et al.
• Court: U.S. Court of Appeals — Seventh Circuit

71 F. 443

FORSYTH v. CITY OF HAMMOND et al.

United States Court of Appeals, Seventh Circuit.

January 16, 1896

The bill in this case was brought by Caroline M. Forsyth, a citizen of Illinois, against the city of Hammond, Ind., and William Kleihege, treasurer of that city, to enjoin the collection of taxes levied upon lands of the complainant for the use of the city, and, after hearing and denial of a motion for an injunction pendente lite, was dismissed for want of equity. Forsyth v. City of Hammond, 68 F 774.

The substance of the bill is: That the complainant is the owner of lands described, in Lake county, Ind., to the number proximately of 650 acres; that by certain proceedings commenced before the board of commissioners of that county in June, 1893, and carried by appeal to the Lake circuit court and thence, by change of venue, to the Porter circuit court the city of Hammond pretended to have annexed, and now claims jurisdiction over, and the right to assess for taxation, and for the year 1894 has levied taxes on the lands and personal property thereon to the amount of $3,500, which the treasurer is proceeding and threatening to collect; that the land is used solely for pasturage and other agricultural purposes has a rental value not exceeding one dollar per acre, has no market value, but only a prospective and speculative value, dependent upon the location, yet unsecured, of manufacturing establishments there, whose market and offices are in Chicago, and is in no degree helped by the neighborhood of Hammond, and, by taxation there, will be rendered unsalable and of little value; that no part of the land has been platted with a view to sale, and no such step is contemplated; that there are but 21 dwelling houses on the land, 10 of them being in a row together near Whiting, a town of rapid growth, containing 2,500 or 3,000 inhabitants, at which the tenants of the 10 houses do business or work; that the other houses on the land are in wide apart clusters of 2 or 3; that the houses on the land are 4 1/2 miles distant from any police station, fire engine house, or gas lamp of Hammond, so that, in the nature of things, the complainant cannot receive any benefit from the government of that city; that the lands were valued for taxation by the city of Hammond at the rate of $250 to $500 per acre, making the taxes about $5 per acre, which is excessive, oppressive, and extortionate; that, at the time of the attempted annexation, Hammond contained, and still contains, not more than 7,000 inhabitants, and had territory about three miles long north and south, and two miles wide, extending on the west to the state line, adjoining which line is the most populous portion of the city, beginning about one-fourth of the way from the north line, and extending to the southern boundary, the northern frontier of the city consisting of about two square miles which there were but seven houses and one road when the attempt was made to annex complainant's lands, which lie beyond and northward of the two square miles mentioned; that the part of Hammond laid off in lots is much larger than is now or is likely to be required for city purposes for many years to come; that (upon information) the city has a bonded debt of $100,000, and a floating debt of $60,000, and taxable property in the city proper of little more than $400,000; that the territory attempted to be annexed contains about five square miles of practically vacant lands, extending from the northern limit of Hammond to the shore of Lake Michigan; that immediately on the north, and overlapping the limit of the city, are two lakes (Wolf Lake and Lake George), shallow and of marshy shores, between which is a narrow neck of low swampy land about a mile long, over which, by a low and muddy road, is the only direct route from Hammond to the property of value sought to be annexed, the most populous and most valuable portion of which lies in the northern part of the tract, near the trunk lines of railroad along the shore of Lake Michigan, and near Chicago, and from four to five miles distant from the business portion of Hammond; that, before the attempted annexation, 20 acres in the northeast corner of the land had been laid out in town lots, and platted by Agnes Roberts with reference to the adjoining town of Whiting, and without reference to Hammond, which is between four and five miles away, and two tracts, aggregating 35 acres, in the northwest part, had been laid off and platted by Edward Roby and Edward A. Shedd, with reference to South Chicago, and denominated Roby & Shedd's Addition to Chicago in Indiana; that, except the parts so platted, the lands sought to be annexed consist in part of sand ridges and sloughs, and are used for pasturage and agricultural purposes solely, being sparsely and thinly inhabited, the dwelling houses and buildings thereon, except the small portion in the northeast corner, being widely separated from one another; that the inhabitants have no need of municipal government, and, from the nature of the situation, can possibly derive no benefit from being included within the corporate boundaries, and burdened with the taxation of Hammond; that the lands have not been enhanced in value by reason of proximity to Hammond, and would be greatly impaired in value if brought within its limits, the sale thereof being greatly hindered, if not made impossible, by reason of the heavy and excessive taxes imposed; that this attempted extraordinary and unreasonable enlargement of the boundaries of the city was not needed for roads, streets, alleys, or for any legitimate purpose, but was an abuse and violation of the franchise of the city, and a contemplated fraud upon the law of the state granting to cities the right to make reasonable annexations; that this attempt was dictated above all by covetousness and greed and a corrupt desire on the part of the authorities of the city to subject the lands of complainant and others in the new territory to the burdens of taxation for the sole benefit of the city, to raise means to pay off its heavy indebtedness, relieving the inhabitants of the city proper, without rendering any service or benefit to the new subjects of taxation; that the debt of the city was and is about 4 per cent. of the valuation of its taxable property, or twice the amount limited by the constitution of the state, and the purpose was by annexing new territory at an exaggerated valuation to lift the city out of its constitutional dilemma, without regard to the question of benefits or advantages to the property annexed; that the city is not only thus attempting to levy and collect taxes on said lands for municipal purposes, but is about to commingle the moneys so collected with other funds of the city, and to use the same in payment of its debts in excess of the constitutional limit and in the payment of ordinary municipal expenses, but no part of the city's funds has been or is to be expended for the benefit of complainant's property, which is completely without lights, water, police, and fire protection, as before the pretended annexation was had.

It is further averred that, in the proceedings recited, the board of commissioners of Lake county refused to order the annexation prayed for, whereupon the city of Hammond undertook to appeal to the Lake circuit court, whence there was a pretended change of venue to the Porter circuit court, which, upon the verdict of a jury, gave judgment in favor of the annexation; that the appeal and the change of venue were, as the complainant is advised, without authority, and the proceedings thereon void, for that the annexation of territory to a city is a matter of legislative, and not of judicial, cognizance, which it is not competent for the legislature to commit to the determination of courts and juries; that, when the proceedings for annexation were begun, a strip of land lying between the territory to be added and the northern boundary of Hammond, about a quarter of a mile wide, and extending from the western boundary of the city of East Chicago westward to the state line, had been, with the consent of the owners thereof, annexed to, and was then wholly under the jurisdiction, control, and government of, the last-mentioned city, thus separating and cutting off all contiguity of the boundaries of Hammond and the territory proposed to be annexed. Prayer, among other things, that the annexation be declared void, and that the city of Hammond be enjoined from collecting taxes or otherwise asserting jurisdiction over the complainant's lands.

The proceedings for annexation were had under the following provisions of the act of March 14, 1867, touching the incorporation and powers of cities, the numbers given of the sections referring to Burns' Revised Statutes of Indiana of 1894, and to the Revision of 1881, respectively: Section 3659 (3196): ' * * * If any city shall desire to annex contiguous territory not laid off in lots, and to the annexation of which the owner will not consent, the common council shall present to the board of county commissioners a petition setting forth the reasons for such annexation, and at the same time present to such board an accurate description by metes and bounds, accompanied with a plat of the lands or territory proposed or desired to be annexed to such city. The common council shall give thirty days' notice, by publication in some newspaper of the city of the intended petition, describing in such notice the territory sought to be annexed. ' Section 3660 (3196): 'The board of county commissioners, upon the reception of such petition, shall consider the same, and shall hear the testimony offered for or against such annexation, and if after inspection of the map and of the proceedings had in the case such...