Cicero v. Williamson

• Decision Date: 27 November 1883
• Docket Number: 10,126
• Citation: 91 Ind. 541
• Parties: Town of Cicero et al. v. Williamson et al
• Court: Indiana Supreme Court

91 Ind. 541

Town of Cicero et al. v. Williamson et al

No. 10,126

Supreme Court of Indiana

November 27, 1883

From the Hamilton Circuit Court.

Judgment reversed.

T. J Kane and T. P. Davis, for appellants.

F. M Trissal, for appellees.

OPINION

Elliott J.

The appellees sought and obtained an injunction prohibiting the town of Cicero from collecting taxes upon real estate owned by the appellees. The ground upon which this relief was awarded was that the land upon which the taxes were assessed had not been annexed to the town.

It is now settled law, that proceedings to annex contiguous territory to incorporated towns or cities can not be set aside upon the ground that the proceedings of the board of commissioners were erroneous, except in cases where there is a direct appeal from the judgment of the board. The question as to the regularity of the proceedings may not be litigated in a collateral attack, although the enquiry as to whether there was, or was not, jurisdiction may be. Grusenmeyer v. City of Logansport, 76 Ind. 549; Bryan v. Moore, 81 Ind. 9, auth. p. 13; Board, etc., v. Pressley, 81 Ind. 361; Caskey v. City of Greensburgh, 78 Ind. 233; Ricketts v. Spraker, 77 Ind. 371; Houk v. Barthold, 73 Ind. 21. The only question that we can consider is whether the board of commissioners had jurisdiction to make the order annexing to the town of Cicero the territory described in the pleadings. If there was no jurisdiction, the appeal must fail; if there was, it must be sustained.

Whether the land annexed by order of the board was, or was not, contiguous to the corporate limits, was a question of fact for the decision of the board of commissioners. Grusenmeyer v. City of Logansport, supra; City of Indianapolis v. McAvoy, 86 Ind. 587. Whether a particular parcel or parcels of land immediately adjoin the limits of a town or city, can only be determined from the evidence in the particular case, and is, therefore, a question of fact.

Injunctions never lie to restrain the enforcement of the decision of a judicial tribunal of competent jurisdiction upon questions of fact.

Where a petition is presented to a board of commissioners, sufficient in form and substance to invoke its jurisdiction in a matter where it has general jurisdiction of the subject-matter, its judgment declaring the petition sufficient can not be collaterally attacked, although the petition may have been bad. Mullikin v. City of Bloomington, 72 Ind. 161; Stoddard v. Johnson, 75 Ind. 20; Muncey v. Joest, 74 Ind. 409; Argo v. Barthand, 80 Ind. 63; Coolman v. Fleming, 82 Ind. 117.

The failure of petitioners, invoking the assistance of an inferior judicial tribunal, to aver in their petitions all such facts as the statute declares such a petition shall contain, does not invalidate the proceedings where there are allegations sufficient to show that the tribunal has a general jurisdiction over the subject-matter. Coolman v. Fleming, supra; Corey v. Swagger, 74 Ind. 211. If the petition shows a case falling within the general subject-matter over which the tribunal has jurisdiction, then the judgment of that tribunal, asserting jurisdiction in the particular case, will be respected as against all collateral attacks, no matter how defective or imperfect the petition may be.

Where a petition, authenticated by the signatures of the town officers, and professing to be the petition of the town is filed with the board of commissioners, is adjudged sufficient, and judgment is entered annexing the contiguous territory, it will conclude taxpayers from raising, in a collateral attack, any questions as to the formality of the proceedings by the town trustees. Such questions are necessarily decided by the board of commissioners, and are, therefore, so conclusively adjudicated as not to be brought into consideration by a collateral attack. Catterlin v. City of Frankfort, 87 Ind. 45.

It is settled by a long line of decisions that the failure to name the land-owners affected by proceedings, such as these, can not be made the basis of a successful attack, except, perhaps, in cases of appeal. Little v. Thompson, 24 Ind. 146; Hedrick v. Hedrick, 55 Ind. 78; Wild v. Deig, 43 Ind. 455 (13 Am. R. 399); Miller v. Porter, 71 Ind. 521; Porter v. Stout, 73 Ind. 3; Featherston v. Small, 77 Ind. 143; Heagy v. Black, 90 Ind. 534.

Where notice is required before an inferior tribunal can act, and it does act, it is not essential that its record should show that it expressly adjudged the notice sufficient. The action does this by implication and is enough to express the decision. Board, etc., v. Hall, 70 Ind. 469.

The notice, as the complaint shows, was published five weeks successively; the first publication was on the 5th day of May, 1871, and the last on the 2d day of June following, and on the 5th day of that month the board of commissioners having, as it is shown, examined the petition and accompanying plat, directed that the territory be annexed as prayed. We think the notice was sufficient, so far as publication is concerned, for five weeks had elapsed from the time of the first publication to the rendition of the judgment. Catterlin v. City of Frankfort, supra. The statute, however, provides that copies of the notice shall be served upon persons who are residents of the county (R. S. 1881, sec. 3389), and the complaint avers that notice was only given by publication, and it is also alleged that the plaintiffs were residents of the county, and so known to the town officers. In our opinion these plaintiffs were entitled to notice as provided in the statute, and as the proceedings affected them personally, and as they had private rights affecting individual property, separate and distinct from their interests in common with other citizens and taxpayers, the proceedings, so far as they affected their individual interests, were unauthorized and invalid. There is a plain distinction between proceedings affecting persons in common with other citizens, and proceedings which directly affect their private rights as owners of property,...