City of Princeton v. Hanna
| Decision Date | 24 October 1916 |
| Docket Number | 22,987 |
| Parties | City of Princeton v. Hanna et al |
| Court | Indiana Supreme Court |
Rehearing Denied October 30, 1918, Reported at: 187 Ind. 582 at 589.
From Gibson Circuit Court; Simon L. Vandeveer, Judge.
Petition by Hugh Hanna, Jr., and others, against the city of Princeton. From a judgment for petitioners, the defendant appeals.
Reversed.
Henry Kister and D. R. Head, for appellant.
Claud A. Smith and T. Morton McDonald, for appellees.
Appellees Thompson and Hanna, filed in the Gibson Circuit Court their petition to vacate a portion of Gibson street in appellant city, consisting of a strip on the east side thereof four feet wide at one street intersection and twelve feet wide at another immediately south thereof. The city, which is one of the fifth class, remonstrated against the proposed change. A trial resulted in a finding and judgment for appellees. Appellant's motion for a new trial was overruled on September 22, 1915. An appeal to this court was prayed by appellant and granted, but no appeal bond was filed. The transcript was filed here on Monday, November 22, 1915.
Persons other than appellant and appellees were parties to the proceeding, but no notice of appeal issued to them. On May 17, 1916, appellees filed their motion to dismiss the appeal. Section 90 of the act of 1905, entitled "An Act concerning municipal corporations," provides that: "In all actions in which any city is entitled to pray an appeal, the same shall be granted as to such city without bond." Acts 1905 p. 219, § 8692 Burns 1914. Appellant's motion to dismiss is predicated on: (1) The theory that the above statutory provision is unconstitutional because in contravention of § 19, Art. 4, and § 22, cl. 3, of the same article, of our state Constitution, and (2) that, if violative of neither constitutional inhibition, nevertheless the appeal must be deemed a vacation one, because, as claimed, the transcript was not filed within sixty days. § 679 Burns 1914, § 638 R. S. 1881.
We are of the opinion that the act of 1905 authorizing appeals, without bond, by cities, is not violative of § 19, Art. 4, supra, which declares that every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. Nor is the statute in contravention of the constitutional provision (Art. 4, § 22, cl. 3, supra), which forbids local or special laws regulating the practice in courts of justice. Indianapolis St. R. Co. v. Robinson (1901), 157 Ind. 232, 61 N.E. 197; Cleveland, etc., R. Co. v. Blind (1914), 182 Ind. 398, 419, 105 N.E. 483. The classification here is reasonable.
While the transcript here was actually filed sixty-one days after the ruling on the motion for a new trial and the granting of the appeal, the sixtieth day fell on Sunday. Section 849 of our Code of civil procedure (§ 1350 Burns 1914, § 1280 R. S. 1881) provides that: If it was necessary for appellant to file the transcript within sixty days, the filing was in due time under the provisions of § 1350, supra. The motion to dismiss is overruled.
It appears from appellees' petition that the portion of Gibson street in controversy is a part of the original plat of the town of Princeton made in 1814 by one Evans as agent of Gibson county. The street, as platted, extends north and south, is sixty feet wide at the place in controversy, and is intersected by State and Broadway streets. Between the latter, on the east side thereof, appellees own lots on which are situated buildings located, in part, west of the east line of Gibson street. The petition avers that the street has never been used for travel to a width greater than forty-eight feet, and that the latter width is sufficient to accommodate public travel; that Gibson street extends south beyond the intersecting streets a distance of half a mile, where it is only forty-eight feet wide; that the city council of Princeton has ordered an improvement of Gibson street, that will, if consummated, require petitioners to remove their buildings out of the street at great expense.
The city filed a remonstrance in four paragraphs, the first three including the statutory grounds found in § 8911 Burns 1914, post. The fourth paragraph alleges that previous to the filing of appellees' petition the city had duly ordered the improvement of the street by constructing a combined curb and gutter; that when constructed, pursuant to the plans and specifications legally adopted by the city council, there will not be room for the construction of sidewalks for the traveling public if the proposed vacation be granted. This paragraph was ordered stricken out.
The petition was filed under the act of 1907, entitled "An Act concerning the vacation of plats of lands or any part thereof and for the disannexation of territory from the corporate limits of cities and towns." Acts 1907 p. 617, §§ 8908-8920 Burns 1914. Section 3 of the act (§ 8910 Burns 1914) authorizes a proceeding in the circuit court to vacate "any street * * * or part thereof" adjoining a lot or lots of a petitioner. Section 4 of the act (§ 8911 Burns 1914) authorizes remonstrances on three grounds only, viz.: (1) Because the public place sought to be vacated is necessary to the growth of the municipal corporation; (2) because the proposed vacation will leave a remonstrant's real estate without communication with a public way; (3) or because the proposed vacation will deprive the public's access to some church, school, or other public building or grounds.
It is earnestly contended by appellant that the circuit court was without jurisdiction of the subject-matter of the action; that the act of 1907, properly construed, confers no authority on circuit courts to adjudge the vacation of a portion of a street by making it narrower; but that, if such act be held as conferring such authority, the same must be held unconstitutional and void.
The municipal corporations act of 1905, Acts 1905 p. 219, § 8639 et seq. Burns 1914, revised our statutory laws relating to cities and towns. Section 266 of this act (§ 8960 Burns 1914) invests the common council of every city with power to...
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