City of Mishawaka, In re, 971S286
| Citation | 289 N.E.2d 510, 259 Ind. 530 |
| Case Date | November 28, 1972 |
| Court | Supreme Court of Indiana |
Page 510
CITY OF MISHAWAKA, Indiana (2 cases).
Harry L. SHARP et al., Appellants,
v.
The CITY OF MISHAWAKA, Indiana, Margaret H. Prickett, As
Mayor of the City ofMishawaka, Indiana, et al., Appellees.
Norman L. MILLER et al., Appellants,
v.
The CITY OF MISHAWAKA, Indiana, Margaret H. Prickett, As
Mayor of the City ofMishawaka, Indiana, et al., Appellees.
[259 Ind. 531]
Page 511
Isadore D. Rosenfeld, Paul J. Schwertley, South Bend, for appellants.R. Wyatt Mick, Jr., Mishawaka, for appellees.
DeBRULER, Justice.
The Common Council of the City of Mishawaka, St. Joseph County, Indiana, adopted annexation ordinances number 1342 and 1343, by which it sought to add two new areas of adjoining land to the city. These two ordinances were duly and regularly adopted by the Council, subsequently approved by the mayor, and published pursuant to Acts 1905, as last amended by Acts 1955, ch. 269, § 1, being Burns' Ind.Stat.Ann. § 48--701.
Remonstrators to each of these ordinances filed their remonstrance and complaint by way of appeal in separate actions in the St. Joseph Superior Court, pursuant to Acts 1905, as amended by Acts 1955, ch. 269, § 3, being Burns' Ind.Stat.Ann. § 48--702.
The trial court ordered the two actions consolidated for the purpose of trial, record and appeal, pursuant to TR. 42, IC 1971, 34--5--1--1.
Burns' § 48--702, supra, states that when an appeal is taken to a court from the decision of a city council to annex territory the judge of that court shall first make determinations as to the following:
'(a) The annexation is in the best interests of the city and of the territory sought to be annexed.
(b) The area is urban in character, being an economic and social part of the annexing city.
[259 Ind. 532] (c) The terms and conditions set forth in the ordinance are fair and just.
Page 512
(d) The city is financially able to provide municipal services to the annexed area within the reasonably near future.
(e) The area sought to be annexed, if undeveloped, is needed for development of the city in the reasonably near future.
(f) The lines of the annexation are so drawn as to form a compact area abutting the municipality.'
Judge F. Kenneth Dempsey of the St. Joseph County Superior Court found that subsections 'a', 'c', 'd' and 'e' of § 48--702 required him to make determinations which were of a non-judicial nature and therefore were in conflict with Art. 3, § 1 of the Indiana Constitution. That Article is expressive of the State doctrine of separation of powers and provides:
'The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.'
He further determined that he did have judicial power to make findings upon primary determinants designated as subsections 'b' and 'f' and made affirmative findings in support of these two determinants, and permitted the annexation to take place. This judgment is tantamount to deciding subsection 'a', 'c', 'd' and 'e' are unconstitutional, as well as deciding that the statute is separable and that the remainder of the annexation statute left after excising subsections 'a', 'c', 'd' and 'e' therefrom, remains valid, and should be separately enforced.
In this appeal appellant remonstrators do not challenge the correctness of the trial court's judgment that the requirements of subsections 'a', 'c', 'd' and 'e' of Burns § 48--702 violate the separation of powers doctrine. No arguments are presented in the briefs on this issue. We therefore likewise [259 Ind. 533] assume the validity of the trial court's decision of unconstitutionality for the purposes of this case. Instead, appellants rest their entire appeal upon the contention that the court erred in determining that the statute involved is separable and that the valid remaining part of it should be separately enforced.
The test of severability is expressed in Dorchy v. State of Kansas (1924), 264 U.S. 286, 44 S.Ct. 323, 68 L.Ed. 686:
'A statute bad in part is not necessarily void in its entirety. Provisions within the legislative power may stand if separable from the bad. . . . But a provision, inherently unobjectionable, cannot be deemed separable unless it appears...
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