City of Aurora v. Bryant, 29780

• Decision Date: 09 March 1960
• Docket Number: No. 29780,29780
• Citation: 240 Ind. 492,165 N.E.2d 141
• Parties: CITY OF AURORA, Appellant, v. Julia S. BRYANT et al., Appellees.
• Court: Indiana Supreme Court

Page 141

165 N.E.2d 141

240 Ind. 492

CITY OF AURORA, Appellant, v. Julia S. BRYANT et al., Appellees.

No. 29780.

Supreme Court of Indiana.

March 9, 1960.

Rehearing Denied April 28, 1960.

Richard R. Mattingly, Hartell F. Denmure, Aurora, Michael L. Fansler, Gustav H. Dongus, Indianapolis, Fansler, Fauvre, Dongus & Chambers, Indianapolis, of counsel, for appellant.

Gilmore S. Haynie, David B. Keller, Fort Wayne, Charles A. Lowe, Richard K. Ewan, William M. Turner, James T. Hooper, Lawrenceburg, Campbell, Livingston, Dildine & Haynie, Fort Wayne, of counsel, for appellees.

BOBBITT, Judge.

This action was brought under Acts 1949, ch. 216, § 2, p. 701, being § 48-702, Burns' 1950 Replacement. ¹

The Common Council of appellant City of Aurora adopted an ordinance annexing certain territory under the provisions of Acts 1905, ch. 129, § 242 being § 48-701, Burns' 1950 Replacement. Less than 51% of the persons owning property in the territory sought to be annexed filed their written remonstrances in the Dearborn Circuit Court. After hearing evidence, the trial court found that 'the adding of the territory sought to be annexed to the City of Aurora will not be for its interest', and 'will cause manifest injury to persons owning property in such territory.'

From a judgment that the territory described in the ordinance 'shall not be annexed to the City of Aurora' this appeal is prosecuted.

First: In disposing of this we must first determine the question presented by appellant's Assignment of Error No. 4, which is as follows:

'4. The trial court was without jurisdiction to decide whether the annexation of the territory involved to the City of Aurora was in the interest of said city or would work manifest injury to the persons owning property in the territory sought to be annexed, and Chapter 129, Section 243, of the Acts of 1905, as amended by Chapter 153 Section 1 of the Acts of 1935, and Chapter 216, Section 2 of the Acts of 1949, insofar as said Section seeks to vest jurisdiction in the trial court to decide said question, is unconsititutional and in conflict with Article III Section 1 of the Constitution of Indiana.'

Section 48-701, supra, provides, in pertinent part, as follows:

'The common council shall have power, by ordinance, to declare and define the entire corporate boundaries of such city, * * *. Said common council may also, by separate ordinance, not purporting to define the entire boundaries of such city, annex contiguous territory, whether platted or not, to such city, * * *.'

Section 48-702, supra, provides, in pertinent part, as follows:

'Whenever such territory is annexed to such city as provided in the foregoing sections, * * * an appeal may be taken from such annexation by one 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 courts of the county where such territory is situated within thirty 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. If the court should be satisfied upon the hearing of [that] less than fifty-one per cent of the persons owning property in the territory sought to be annexed, have remonstrated, and that the adding of such territory to the city will be for its interest and will cause no manifest injury to the persons owning property in the territory sought to be annexed, he shall so find and said annexation shall take place. * * * 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.'

Section 48-702, supra, is unconstitutional if it attempts to delegate legislative powers and functions to the courts.

It is the duty of this court to sustain the constitutionality of an Act of the Legislature if it can be done by a reasonable construction; and any doubt concerning the constitutionality of an Act must be resolved in favor of its validity. State ex rel. Pennsylvania R. R. Co., et al. v. Iroquois Cons. Dist. Ct., et al., 1956, 235 Ind. 353, 356, 133 N.E.2d 848; Wright-Bachman, Inc. v. Hodnett, et al., 1956, 235 Ind. 307, 316, 133 N.E.2d 713; Fairchild, Prosecuting Atty., etc. v. Schanke, et al., 1953, 232 Ind. 480, 483, 113 N.E.2d 159.

The burden is upon appellant here to establish the alleged unconstitutionality. Hanley v. State, Dept. of Conservation et al., 1955, 234 Ind. 326, 332, 123 N.E.2d 452, 126 N.E.2d 879; Illinois Steel Company v. Fuller, 1939, 216 Ind. 180, 185, 23 N.E.2d 259.

We have no quarrel with appellant's assertion 'that the annexation of a territory to a municipality is a legislative function' and may not be delegated to the courts. This has long been the rule in Indiana. Wiley v. Corporation of Bluffton, 1887, 111 Ind. 152, 156, 12 N.E. 165; Forsythe et al. v. City of Hammond, 1895, 142 Ind. 505, 516, 40 N.E. 267, 30 L.R.A. 576, (Rehearing denied 41 N.E. 950); Paul v. Town of Walkerton, 1898, 150 Ind. 565, 569, 50 N.E. 725; Perry Tp. v. Indianapolis Power & Light Co., 1946, 224 Ind. 59, 73, 64 N.E.2d 296; City of Indianapolis v. Wynn, Ind.1959, 157 N.E.2d 828, 832. This is also the general rule in other States which have constitutional provisions for the separation of powers similar to those in the Constitution of Indiana. City of St. Joseph v. Hankinson, Mo.1958, 312 S.W.2d 4, 8; 37 Am.Jur., Municipal Corporation, § 25, p. 641; 2 McQuillin, Municipal Corp., 3d ed., § 7.10, p. 277. See also Annotation 64 A.L.R. p. 1336 and cases there cited.

It is also generally held that the power to determine when conditions exist which warrant the annexation of territory to a municipality may be legally vested in the courts. Paul v. Town of Walkerton, supra, 1898, 150 Ind. 565, 573, 50 N.E. 725; Forsythe et al. v. City of Hammond, supra, 1895, 142 Ind. 505, 517, 40 N.E. 267, 30 A.R.A. 576 (Rehearing denied 41 N.E. 950); 37 Am.Jur., Municipal Corporations, § 25, p. 641, supra; 16 C.J.S. Constitutional Law § 139(2), p. 638. See also Annotation 64 A.L.R. (c), p. 1352.

Section 48-701, supra, vests the exclusive authority to annex territory in the Common Council of the city. At no place in the entire Annexation Act are the courts given the power to determine whether or not additional territory shall be annexed to the city. City of Indianapolis v. Wynn, supra, Ind.1959, 157 N.E.2d 828, 832; Vesenmeir et al. v. City of Aurora, etc., 1953, 232 Ind. 628, 634, 115 N.E.2d 734.

Section 48-702, supra, provides that whenever a territory is annexed by the Common Council of the city (as provided in § 48-701, supra) a remonstrance may be filed setting forth 'why such annexation ought not in justice take place'. A hearing on such remonstrance by the Circuit or Superior Court is provided. However, the power and duties of the court are, under the remonstrances in the case at bar, ² limited to ascertaining whether the annexation will be for the interest of the city and will cause no manifest injury to the persons owning property in the territory. If the court is satisfied that these two conditions are met it 'shall so find'; and 'said annexation shall take place'. The judgment of the court merely establishes the fact that the conditions of the statute, necessary to overcome a remonstrance, have or have not been met, and if they have been met the statute then ex proprio vigore, annexes the territory. City of Indianapolis v. Wynn, supra; Paul v. Town of Walkerton, supra. If the finding of the trial court is that the adding of such territory will not be for the interest of the city and will cause manifest injury to the persons owning property in the territory sought to be annexed, the annexation is suspended, not by the judgment of the court but by operation of the statute, for a period of two (2) years after the rendition of the judgment upon such finding. Section 48-702, supra.

As stated in Vesenmeir et al. v. City of Aurora, etc., supra, 1953, 232 Ind. 628, at page 634, 115 N.E.2d 734, 738,

'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 conferred by statute which was in the nature of an appellate jurisdiction which it could assume and exercise only within the provision of the statute.'

As we have stated hereinabove, the annexation of territory to a city is a legislative function. This function is exercised by the Common Council when it passes an ordinance to annex additional territory to the city. Subsequent proceedings had upon the filing of a remonstrance are of a judicial nature. The remonstrance, under the 1905 Act, as amended, must give the reasons why, in the opinion of the remonstrator, the annexation should not take place. The sufficiency of such reasons, and whether they in fact exist, calls for a decision of the court in which the remonstrance is filed. Whether the proper statutory steps have been taken, whether the reasons given in the remonstrance are sufficient, whether the adding of territory will be for the city's interest, whether the proposed annexation will cause manifest injury to the persons owning property in the territory, and whether other conditions of the statute have been met are all facts which may be determined by the courts in the manner provided in § 48-702, supra. In performing such function, the court is not reestablishing and changing the boundaries of governmental units. The court is, by the provisions of § 48-702, supra, simply given the power to...