City of Logansport v. LaRose

• Decision Date: 18 December 1884
• Docket Number: 7846
• Citation: 99 Ind. 117
• Parties: City of Logansport v. LaRose et al
• Court: Indiana Supreme Court

99 Ind. 117

City of Logansport v. LaRose et al

No. 7846

Supreme Court of Indiana

December 18, 1884

From the Cass Circuit Court.

The judgment is reversed, with costs, and the cause is remanded with instructions to sustain the demurrers to the second and third paragraphs of complaint, and to overrule the demurrer to the second paragraph of answer, and for further proceedings not inconsistent with this opinion.

M Winfield, D. Turpie and J. C. Nelson, for appellant.

D. P Baldwin and D. D. Dykeman, for appellees.

OPINION

Howk, J.

This action was commenced for the April term, 1877, of the court below, by John S. LaRose, Paul Taber and Anthony Grusenmeyer, who sued for themselves and all others interested, as plaintiffs, against the City of Logansport and Joseph B. Messenger, treasurer of such city, as defendants. Such proceedings were had therein as that at the April term, 1878, of the court, the appellees filed an amended complaint in three paragraphs. In each of these paragraphs the appellees sought to enjoin the city of Logansport and the city treasurer from the collection of certain taxes, which, as they alleged, the officers of such city had illegally assessed and charged against them and their property, for the reason that their property was not lawfully within the corporate limits of such city, and, therefore, was not lawfully liable to taxation by or for such city.

The cause was put at issue and tried by the court, and a finding was made for the appellees, that they were entitled to the relief demanded in their complaint; and over the appellant's motions for a new trial and in arrest, the court rendered a judgment and decree in accordance with its finding.

The first error of which complaint is made by the appellant in this court is the overruling of its separate demurrers to each of the paragraphs of appellees' complaint. We will separately consider and pass upon the sufficiency of each of these paragraphs in their enumerated order.

1. In the first paragraph of the complaint it was alleged that each of the appellees was the owner of a certain described lot or lots in the original plat of Taberville, as recorded in the recorder's office of Cass county; that, on the fifth day of May, 1870, the appellant attempted to annex the town of Taberville to such city of Logansport by resolution and proceedings, a copy of which, marked "Exhibit A," was filed with and made a part of such paragraph; that the appellees were not parties to said proceedings, nor had they any opportunity of being heard with reference thereto, and they averred that such proceedings were illegal and void for the following reasons, to wit:

The town of Taberville, on May 5th, 1870, was not contiguous to, nor did it adjoin, the city of Logansport, but, on the contrary, there intervened between said town and city a wide and navigable river, to wit, the Wabash river, the bed of which belonged to the United States, upon the north bank whereof was situate the city of Logansport, and upon its south bank, and between the river and the town of Taberville, was a strip of ground 200 feet wide, which was never platted or laid out into lots, and was not, on May 5th, 1870, annexed to or a part of such city of Logansport, and, therefore, the common council of such city had no authority whatever by law to make said annexation, and such attempted proceedings were wholly void; that the town of Taberville, Wm. H. Stanley's addition to Logansport, and H. A. Bartlett's addition to Logansport, which were all the platted lots, south of the Wabash river, attempted to be annexed to the city by said resolution, did not adjoin the city of Logansport; that the annexation was void, because it attempted to annex at the same time and by the same act, with the said plats of town lots, 800 acres of farming lands, which were never theretofore platted.

And the appellees averred that their said lots, so attempted to be annexed, were worth $ 2,500; that the appellant annually assessed against the said lots a large amount of taxes, to wit, $ 50, which the appellees were compelled to pay; that there was then assessed against said lots the sum of $ 50, as the taxes for the year 1876; that the tax duplicate was then in the hands of appellant's treasurer, who was threatening to collect such taxes of appellees' goods and chattels; that the said assessment was illegal and void, because such annexation was void, and the appellees were not liable to pay taxes to the city of Logansport; that by reason of the so-called annexation, and of the annual levy of taxes against the appellees' property by the appellant, their said lots were greatly diminished in value, and such taxes were a cloud upon their title, and the said annexation proceedings were an irreparable injury to them and their title. It was also alleged that the treasurer of the city of Logansport was about to levy upon the appellees' property for the collection of such taxes, and would do so, unless restrained, before this cause could be finally heard. Wherefore, etc.

The first objection urged by the appellant's counsel to this first paragraph of complaint is, that the annexation proceedings, which are alleged to have been illegal and void, are not set out at length, nor stated in substance, in such paragraph. In other words, counsel claim that the annexation proceedings, described in the first paragraph, are not the foundation of the cause of action therein stated; and that for this reason the copy of such proceedings, filed with the paragraph as an exhibit, did not thereby become a part of the paragraph, and can not be considered in determining the sufficiency of the facts therein stated to constitute a cause of action. In this latter view of the matter, as a question of pleading under section 78 of the civil code of 1852, in force at the time (section 362, R. S. 1881), the appellant's counsel would seem to be right. Wilson v. Vance, 55 Ind. 584; Schori v. Stephens, 62 Ind. 441; Ryan v. Curran, 64 Ind. 345 (31 Am. R. 123). It seems to us, however, that the decision of this point in the appellant's favor is, by no means, conclusive of the question of the alleged insufficiency of the first paragraph of the complaint. The facts alleged by the appellees in the first paragraph of their complaint, without any reference to the exhibit therewith filed, are sufficient to show that the action of the appellant's common council, in extending the limits of the city of Logansport, by resolution, over the town of Taberville and adjacent territory, was not authorized by law, and was therefore void.

In the general law for the incorporation of cities, approved March 14th, 1867, under which we assume, the contrary not appearing, that the city of Logansport was incorporated at the time of such attempted extension of its corporate limits, three modes are prescribed for the government of such cities in the extension of their boundaries, so as to include therein contiguous territory. Thus, in section 84 of such general law (section 3195, R. S. 1881), it is provided that "Whenever there shall be or may have been lots laid off and platted adjoining such city, and a record of the same is made in the recorder's office of the proper county, the common council may, by a resolution of the board, extend the boundary of such city so as to include such lots; and the lots thus annexed shall thereafter form a part of such city and be within the jurisdiction of the same." In the case thus provided for the action of the common council is alone sufficient to extend the city boundaries.

In the first sentence of section 85 of such general law (section 3196, R. S. 1881), provision is made for the extension of the city limits over contiguous territory, whether the same be platted into lots or not, by the action of the common council, with the written consent of the owner or owners of such territory. Under the residue of the same section and the first sentence of section 86 of the said general law (section 3197, R. S. 1881), provision is made for the annexation to the city of contiguous territory, whether platted into lots or otherwise, without the consent of the owner or owners thereof, upon the petition of the common council to the board of commissioners of the county, in which the city is situate, and the order of such board granting the prayer of such petition. 1 R. S. 1876, pp. 310 and 311.

It would seem from the allegations of the first paragraph of the complaint in the case at bar, that in the annexation of the plat or town of Taberville, and the other territory mentioned, the appellant and its common council had not conformed to, nor complied with, either of the modes prescribed by the statute for the annexation of contiguous territory to the city limits. We are of the opinion that the facts stated by the appellees in the first paragraph of their complaint were sufficient to show that the action of appellant's common council in the annexation of the plat or town of Taberville, and the other territory mentioned, to the limits of Logansport, was not authorized by any statutory provision, and was, therefore, void. It was alleged by the appellees, as we have seen, in such first paragraph, that the town of Taberville and the other territory mentioned, at the time appellant's common council attempted to annex the same to the city of Logansport, were not continuous nor adjoining to the limits of such city, but were separated therefrom by the bed of the Wabash river, belonging to the United States, and by a strip of ground two hundred feet in width, which had never been platted or laid off into lots. Appellant's counsel claim, however, that the first paragraph of the complaint was bad, on the demurrer thereto for the want of facts, because it did not...