City of Mishawaka, In re, 971S286

• Decision Date: 28 November 1972
• Docket Number: No. 971S286,971S286
• Citation: 289 N.E.2d 510,259 Ind. 530
• Parties: In the Matter of the Annexation of Certain Territory to the 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.
• Court: Indiana Supreme Court

Page 510

289 N.E.2d 510

259 Ind. 530

In the Matter of the Annexation of Certain Territory to the

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.

No. 971S286.

Supreme Court of Indiana.

Nov. 28, 1972.

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.

(c) The terms and conditions set forth in the ordinance are fair and just.

(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 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 both that, standing alone, legal effect can be given to it and that the legislature intended the provision to stand, in case others included in the act and held bad should fall.' 264 U.S. at 289--290, 44 S.Ct. at 324.

This test has been adopted and applied by this Court. In State v. Kuebel (1960), 241 Ind. 268, 172 N.E.2d 45, we said:

'(Issue of severability) rests ultimately upon a judicial determination of the legislative intent.

'In determining the legislative intent we may properly consider the object which the Legislature sought to accomplish, but the test of severability is whether or not the Legislature would have passed the statute had it been presented without the invalid features. 2 Sutherland Statutory Construction, 3d ed., § 2404, p. 179.' 241 Ind. at 278, 172 N.E.2d at 50.

In accord are W. A. Barber Grocery Co. v. Fleming (1950), 229 Ind. 140, 96 N.E.2d 108, and Tucker, Secretary of State v. Muesing (1942), 219 Ind. 527, 39 N.E.2d 738. The Act which we consider here is the Municipal Corporations Act, enacted in 1905, consisting of 272 sections and covering the entire field of municipal law, including organization of cities and towns, structure of city government, power and duties of city officers, city elections, municipal services and taxation, as well as the subject of annexation. The sections of the Act dealing with annexation have been amended several times since 1905, and were put in the form in which we deal with them here by amendment in 1955. The first problem is then, what is the act to which we address ourselves here in determining severability. The subject matter dealt with in this Act is the entire spectrum of municipal organization and law. The legislature chose to enact this statute in this form and we believe it is reasonable to deal with it in its entirety as a comprehensive law. We conclude that the comprehensive nature of this statute sufficiently establishes that the Legislature did not intend that the entire Act should fall, if one section or even part of a section were determined by this Court to be constitutionally infirm. We find that the Legislature intended that this statute be separable. Although counsel do not point it out, there is in fact no separability clause attached to this statute. However, this Court has held that the presence or absence of such a clause is not decisive on the issue of separability. Ettinger v. Studevent and Hole v. Dice (1942), 219 Ind. 406, 38 N.E.2d 1000.

We now turn to the issue of whether or not the Legislature intended that the remaining parts of this Act, including those sections governing the specific area of annexation, should stand and be enforced in spite of the determination of its partial invalidity. In our opinion the Legislature did so intend. The purpose of the sections of the Act dealing with annexation is to grant, first of all, the power to the local legislative body to annex territory, and secondly to provide remonstrators with a judicial remedy. The statute here is intended to provide a fair structure in...