City of Terre Haute v. Beach

• Citation: 96 Ind. 143
• Decision Date: 13 December 1883
• Docket Number: 8409
• Parties: City of Terre Haute v. Beach et al
• Court: Indiana Supreme Court

96 Ind. 143

City of Terre Haute v. Beach et al

No. 8409

Supreme Court of Indiana

December 13, 1883

Rehearing Date: June 6, 1884

Reported at: 96 Ind. 143 at 145.

From the Vigo Circuit Court.

Judgment reversed.

I. N Pierce, J. W. Harper and J. M. Allen, for appellant.

J. G. Williams and W. Mack, for appellees.

OPINION

Elliott, J.

The appellees' complaint alleges that the board of commissioners of Vigo county, on the petition of the city of Terre Haute, ordered lands belonging to them to be annexed to the city, and charges that this judgment was void, because, to borrow the language of the pleading, "no petition was ever presented to the board of commissioners for the annexation of the territory described in the order of the board, but the petition presented at said time to said board included and described other lands, and which said board refused to annex to said city, and granted only a part of said petition." It is clear, under the now settled rule, that this statement supplies no ground for an injunction. Many cases establish the rule that where the petition is sufficient on its face to confer jurisdiction of the subject-matter, the proceedings based upon it, although erroneous, can not be overthrown by injunction. The appropriate remedy in such cases is by appeal. Where there is jurisdiction no irregularities or errors will render the proceedings void, and it is only void proceedings that can be collaterally assailed. Town of Cicero v. Williamson, 91 Ind. 541; Heagy v. Black, 90 Ind. 534; Grusenmeyer v. City of Logansport, 76 Ind. 549; Caskey v. City of Greensburgh, 78 Ind. 233; Board, etc., v. Pressley, 81 Ind. 361; Green v. Elliott, 86 Ind. 53.

It is also averred that "no notice by publication of the intention to present said petition to said board of commissioners, was given thirty days previous to December 5th, 1872." By the law in force when the annexation proceedings were had, it was provided that the "council shall give thirty days' notice, by publication in some newspaper of the city, of the intended petition" (1 R. S. 1876, p. 311), and if the complaint had directly charged that no notice at all had been given, it would perhaps have been good, because, as the proceeding affected the personal and private rights of the appellees, they were entitled to the notice, and this not having been given the board of commissioners did not acquire jurisdiction of the person. Town of Cicero v. Williamson, supra. Notice in some form in such cases is required, and a statute not providing for it is probably unconstitutional. Campbell v. Dwiggins, 83 Ind. 473. However this may be, it is clear that the complaint is insufficient. For aught that appears more than thirty days' notice may have been given. The presumption is in favor of the acts of public officers, and, until the contrary is shown, it must be presumed that they have done their duty. There is nothing here to show that notice was not given for a much longer period than thirty days. It is, indeed, impliedly conceded by the complaint that some notice was given, and the rule is that where there is some notice, although a defective one, and the commissioners have adjudged it sufficient by acting upon it, there can be no successful collateral attack. Oppenheim v. Pittsburgh, etc., R. W. Co., 85 Ind. 471; Stout v. Woods, 79 Ind. 108; McAlpine v. Sweetser, 76 Ind. 78; Hume v. Conduitt, 76 Ind. 598; Muncey v. Joest, 74 Ind. 409.

Judgment reversed.

In the brief of the appellees the question for our decision was thus stated: "The only question presented by this record is, was the complaint subject to demurrer?" This we accepted as a correct statement, and fully considered the question presented, and we certainly gave the appellees no cause for complaint in acting upon their own statement.

It is said in the brief on the petition for rehearing, that we were in error in stating that the complaint averred that an order of the board of commissioners was made annexing lands to the city of Terre Haute. That we were not in error is apparent from the following statement of the complaint: "And plaintiffs say that the board of commissioners of Vigo county, pretending to act under sections 86 and 87 of the law of 1867, made an order annexing to the city of Terre Haute certain territory, in said order described, in twelve parcels," and this is followed by a description of the lands ordered annexed. But if this extract does not sufficiently show that we were right, then the following surely does: "And plaintiffs say that said pretended annexation of land to the city of Terre Haute is illegal and void, and that the acts of said city in assessing said lands for taxation, and the acts of said treasurer in attempting to enforce the collection of taxes, are unlawful and wholly without right; that, in truth and in fact, said lands are not within the city of Terre Haute, because plaintiffs show that no petition was ever presented to the said board of commissioners asking for the annexation of the territory set out in the order of the board, but the petition presented at said time to said board included other lands, described therein, which the board refused to annex to said city, and granted only a part of said petition." This, certainly, shows that the board ordered the lands of the appellees annexed, but refused to order the annexation of other lands.

The theory on which the pleading is founded shows clearly...