City of Hobart v. Town of Merrillville
| Decision Date | 20 March 1980 |
| Docket Number | No. 3-1178A303,3-1178A303 |
| Citation | 401 N.E.2d 726 |
| Parties | CITY OF HOBART and Common Council of the City of Hobart, Appellants-Plaintiffs, v. TOWN OF MERRILLVILLE, The Town Board of Trustees of the Town of Merrillville, Standard Liquors, Inc., of Gary, and Ribordy Drugs, Inc., Appellees-Defendants. |
| Court | Indiana Appellate Court |
Thomas Greenberg and James A. Holcomb, Lucas, Clifford & Holcomb, Merrillville, Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellants-plaintiffs.
Fred M. Cuppy, Gerald K. Hrebec, J. Philip Klingeberger, Merrillville, for appellees-defendants.
This is a suit for declaratory and injunctive relief by the City of Hobart against the Town of Merrillville. The City sought to have declared void the Town's Ordinance No. 74-18 which purported to annex certain real property located near the City of Hobart. Landowners in the annexed area were permitted to intervene. The trial court granted summary judgment in favor of the Town and Intervenors and the City appealed. We reverse.
The key to this case centers on the proper interpretation and application of Ind.Code 18-5-10-31. The City claims § 31 required the Town to obtain the City's consent before the territory in question could be annexed by the Town. According to the Town's asserted interpretation, the City's consent was not mandated by the statute. Both parties agree the City's consent was not requested or given. The trial court apparently agreed with the Town's position though its findings and conclusions provide no hint us to the rationale for the decision.
The issues presented for our review are as follows:
I. Whether the City has properly perfected its appeal?
II. Whether the judgment was harmless error?
III. Did the City have standing to bring this suit?
IV. Was the Town required to obtain the City's consent pursuant to Ind.Code 18-5-10-31 as a condition of validity to the annexation ordinance?
V. Did the City unreasonably withhold its consent?
VI. Whether the record is adequate to permit appellate review of the Town and Intervenor's equal protection claims?
VII. Whether Ind.Code 18-5-10-31 violates art. I, § 25 of the Indiana constitution?
The Town urges us to dismiss this case as a result of the City's failure to perfect a timely appeal. The City asserts its appeal was properly perfected. The City is correct.
The pertinent sequence of events in the trial court was as follows:
3/29/78 Summary judgment entered in favor of defendant Town of Merrillville and against plaintiff City of Hobart;
5/15/78 Motion to correct errors filed by City;
6/14/78 Motion to correct judgment filed by Town;
8/28/78 Order entered overruling City's motion to correct errors, granting Town's motion to correct judgment, and correcting judgment to extend in favor of defendants Standard Liquors, Inc., of Gary and Ribordy Drugs, Inc. 9/21/78 Motion to correct judgment filed by City; and
9/21/78 Order entered granting City's motion to correct judgment, and correcting judgment to extend in favor of all defendants and against all plaintiffs.
Under this set of facts the Town argues the September 21, 1978, judgment was the judgment from which the appeal should have been taken and cites State v. Deprez, (1973) 260 Ind. 413, 296 N.E.2d 120. Under Deprez and its voluminous progeny the City would have been required to file additional motions to correct error each time the court changed its judgment in any way. However, in P-M Gas and Wash Co., Inc. v. Smith, (1978) Ind., 375 N.E.2d 592, the Supreme Court expressly held a party is not required to file a second motion to correct error. The resolution of this question therefore depends upon which case Deprez or P-M Gas was the controlling law at the time the court amended its judgment. P-M Gas was handed down April 27, 1978, roughly three weeks prior to the time the City's motion to correct error was filed and seven weeks before the court's first amendment of the judgment. Thus P-M Gas clearly controls this situation. See Nehring v. Raikos, (1979) Ind.App., 390 N.E.2d 1092; Estate of Holderbaum v. Gibson, (1978) Ind.App., 376 N.E.2d 1189. A second motion to correct error was not required and the City properly perfected its appeal.
In a rather novel argument the Town asserts the City has shown no prejudice as a result of the court's judgment and therefore argues if the judgment was erroneously granted in favor of the Town any error was harmless. We cannot accept even the basic premise of this argument. The Town has not cited us to any authority which supports an application of the harmless error rule to the rendering of judgments and we have found none. By its very nature the concept of harmless error applies to procedural and evidentiary error; it has little or no relationship to substantive errors, particularly judgments.
It is the Town's position that the City did not have standing to challenge the annexation and therefore the trial court properly refused to declare the ordinance void. We do not agree. First of all, the Declaratory Judgment Act specifically allows municipalities to bring an action under its provisions. Ind.Code 34-4-10-13. Secondly, unlike some other cases in which the parties merely ask the court for an advisory opinion, e. g., City of Mishawaka v. Mahoney, (1973) 156 Ind.App. 668, 297 N.E.2d 858, this case presents a true controversy between two adverse parties. Finally, the City fulfills the "effect upon the rights, status or other legal relationships" test of Pitts v. Mills, (1975) 165 Ind.App. 646, 333 N.E.2d 897.
The Town asserts the City had no standing because § 31 does not confer the power of consent upon the City. This argument attempts to prove too much. Under the Town's position, to establish standing the City would first have to prove the substance of its case, i. e., that the Town was required to obtain the City's consent as a condition of validity to its annexation ordinance. This is not the law. Nevertheless, as we hold in the next section, the City has the power of consent under the statute. The City clearly had standing to attack the annexation ordinance.
The primary issue in this case concerns the interpretation of Ind.Code 18-5-10-31 and related statutes. The City claims the statute required the Town to obtain the City's consent as a condition of validity to the Town's annexation ordinance. The Town argues § 31 is inapplicable to the method by which it annexed the territory. We have carefully studied the statutes and conclude the City is correct.
Ind.Code 18-5-10-29 gives towns the authority to annex territory. Annexation of contiguous territory by towns. Towns may annex contiguous territory in the manner provided by sections 412 through 414 (18-5-10-30 18-5-10-32) of this article.
The procedure towns are to follow in annexing territory is outlined in Ind.Code 18-5-10-30.
Procedure. Annexation of contiguous territory shall be made by the enactment of a town ordinance pursuant to the general procedure provided for the enactment of either separate or special annexation ordinances by cities and shall include a description of the territorial limits of the area. Owners of real estate situated outside, but adjacent to the corporate boundaries of any town may petition the town board to have real estate annexed in the same manner and to the same effect that owners of real estate may petition the common councils of cities to annex territory: Provided, That if any of the areas sought to be annexed lies within any county or counties other than the home county of the annexing town, any of the circuit or superior courts of any affected county shall have jurisdiction of any appeal.
The Town argues § 30 establishes two methods for annexation one where the town, through its town board, initiates the annexation of one where landowners in contiguous territory request the town to annex their property. We agree. The clear language of § 30 allows either the town board or the landowners to initiate annexation proceedings.
Ind.Code 18-5-10-31 requires the consent of nearby cities as a condition to a valid annexation by a town.
Consent required prior to annexation. If any part of the area sought to be annexed by a town lies within four (4) miles of any point on the perimeter of a city of the first class, or within three (3) miles of any point on the perimeter of a city of the second or third class, the consent of the common councils of such cities shall be obtained before annexation as a condition of validity: Provided, That in counties where a metropolitan plan commission is in existence, the consent of the metropolitan plan commission in lieu of the consent of the common councils of such cities shall be obtained.
It is undisputed that the City of Hobart is a third class city and that part of the territory included in the Town's annexation ordinance lies within three miles of the City's perimeter. Thus, on its face, the statute seems to require the City's consent to the Town's annexation.
The Town claims differently, however. It argues the consent requirement applies only to annexations initiated by a town itself and not where the property owners in the territory covered by the annexation ordinance are the initiating force behind the ordinance. If this interpretation is correct, the Town was not required to obtain the City's consent because ordinance 74-18 was, in fact, initiated by way of a petition filed by the landowners. However, we do not accept the Town's interpretation.
The Town rests its interpretation on two primary assertions. First it points to the language in § 30 which says, "Owners of real estate . . . may petition the town board to have real estate annexed in the same manner and to the same effect that owners of real estate may petition the common councils of cities to annex...
To continue reading
Request your trial
-
Smith v. State
...cannot overcome the presumption of constitutionality where there is a legal vacuum. Board of Commissioners of Howard County, supra; City of Hobart, supra. Appellant contends in Issue Four that the "reasonable force" requirement of IC 35-41-3-2(b) offends the equal protection requirement of ......
-
Board Com'Rs Hendricks v. Town Plainfield
...respect to validity of own ordinances). Appellants recognize that our court reached a different result in City of Hobart v. Town of Merrillville, 401 N.E.2d 726, 728 (Ind.Ct.App.1980), where the City of Hobart was found to have standing under the UDJA to challenge the validity of the Town o......
-
Town of Porter v. Bethlehem Steel Corp., 3-982A233
...additional factor to those set forth under Ind.Code 18-5-10-32 to be met by the Town before annexation. In City of Hobart v. Town of Merrillville, (1980) Ind.App., 401 N.E.2d 726, 730, the court To accept the Town's interpretation would be to ignore what we perceive as the clear language an......
-
Town of Reynolds v. Bd. of Comm'rs of White Cnty.
...may bring a declaratory judgment action under the Act. See City of Greenwood, 930 N.E.2d at 66 (citing City of Hobart v. Town of Merrillville, 401 N.E.2d 726, 728 (Ind.Ct.App.1980) (providing that the Act specifically allows governmental entities to file suit), trans. denied); see also Ind.......