Engle v. City of Indianapolis

• Decision Date: 15 March 1972
• Docket Number: No. 571A96,571A96
• Citation: 279 N.E.2d 827,151 Ind.App. 344
• Parties: Donald M. ENGLE et al., Remonstrators-Appellants, v. CITY OF INDIANAPOLIS, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 827

279 N.E.2d 827

151 Ind.App. 344

Donald M. ENGLE et al., Remonstrators-Appellants, v. CITY OF INDIANAPOLIS, Defendant-Appellee.

No. 571A96.

Court of Appeals of Indiana, First District.

March 15, 1972.

Rehearing Denied April 18, 1972.

Frank E. Spencer, Indianapolis, for appellants.

Raymond F. Fairchild, Asst. Corp. Counsel, Indianapolis, for appellee.

LOWDERMILK, Judge.

This is an action commenced in the trial court by the filing of a Remonstrance Against Annexation on December 24, 1959, which remonstrance alleges that a majority of the owners of the land in certain territories described in the city's special ordinance, passed by the Common Council of the City of Indianapolis, deem themselves aggrieved and injuriously affected by the annexation proposed and attempted in said special ordinance and remonstrate against such annexation, and for their cause of action alleged:

1. On November 16, 1959, the Common Council of the City of Indianapolis by majority vote passed Special Ordinance No. 25, purporting to annex the real estate here in question.

2. That on November 17, 1959, said Special Ordinance was signed by the Mayor of the City of Indianapolis and was thereafter published on the 19th and 26th days of November, 1959, in two newspapers of general circulation published in the City of Indianapolis, naming them.

3. The undersigned are a majority of the owners of the land in said territory described in said Special Ordinance No. 25.

4. That the undersigned are the owners of more than 75% in assessed valuation of the real estate in said territory described in said Special Ordinance No. 25.

5. This allegation alleged the annexation ought not in justice take place for the six statutory reasons specified by Ind.Stat.Ann. § 48--702 (Burns 1963 Replacement), together with five additional reasons by which the remonstrators alleged the annexation is not necessary.

Special Ordinance No. 25, 1959, ordained that certain contiguous territory of the City of Indianapolis be annexed and placed said ordinance in full force and effect after its passage, approval by the Mayor, and publication.

The City of Indianapolis alleged, by Defendant's Answer to Remonstrance Against Annexation and Motion to Determine Remonstrance Insufficient, that said remonstrance was insufficient; a part of the latter being 'The reason said remonstrators are estopped and denied this right is that the owners of the land affected have heretofore agreed in exchange for sewer services that they would not contest any annexation proceeding and they have bound their successors.'

Section 7 of Chapter 160 of the Acts of 1953, provides:

'Sec. 7. Sewer Service Agreement. Every person owning or occupying real estate outside the limits of the Sanitary District shall be required to enter into a sewer service agreement for the privilege of connecting to the sewerage system of said Sanitary District. Such agreement may impose such conditions for said privilege as the Board of Sanitary Commissioners may determine. The agreement shall also provide in the case of persons not subject to the rates and charges under Sec. 3 of this Act the amount of service charge to be paid for such privilege, which amount shall be fixed by the Board of Sanitary Commissioners in their discretion and without a hearing. All such sewer service agreements shall be recorded in the office of the Recorder of the county where the real estate is located and such agreements executed by the owner of said real estate shall run with the real estate therein described and such agreements shall be binding upon the persons owning or occupying such real estate, their personal representatives, heirs, devisees, grantees, successors, and assigns so long as the real estate shall be connected to the sewerage system. The agreements shall contain a provision that the persons owing or occupying such real estate agree for themselves, their executors, administrators, heirs, devisees, grantees, successors and assigns that they will make no objection to nor file a remonstrance against any proposed annexation of said real estate by any city or town within the boundaries of the Sanitary District, or take an appeal from any order or judgment annexing said real estate to any such city or town, or file any complaint or action against such annexation proceedings: Provided, that any such sewer service agreements heretofore made shall not be affected by this Act, nor shall this Act be construed in any way to impair the obligation of any contract, or sewer service agreement heretofore made or in force.'

In defendant's Motion to Determine Remonstrance Insufficient, it further says:

'Accordingly, said remonstrators have the provisions of the law of the State of Indiana written into their sewer agreement and they have waived their right to remonstrate and are estopped from doing so. The statute with reference to annexation proceedings, Section 41-703, (sic--(48-702)) generally provides that the Court shall make a prompt determination of all remonstrances but provides that upon receipt the Judge will determine whether it bears the necessary signatures and complies with statutory requirements, and plainly and obviously the annexation remonstrance fails to comply with statutory requirements in this instance, and the Court should make a determination upon a hearing of the failure to comply with the statute and of the insufficiency of the remonstrance.'

The parties made and entered into a stipulation on August 25, 1970, concerning the determination by the court of the sufficiency of the remonstrance.

On November 10, 1970, the court entered its findings and judgment, which showed submission on the arguments of counsel on the legal sufficiency of the remonstrance, it being stipulated by the parties by their counsel that:

1. The predecessors in title of more than a majority of the owners of land in the territory described in the annexation ordinance had, prior to the enactment of said annexation ordinance, signed sewer service agreements with the Board of Sanitary Commissioners of the Sanitary District of Indianapolis, pursuant to the provisions of the Acts of 1953, Ch. 160, Sec. 7, which sewer agreements contained provision that neither they nor their heirs, devisees, grantees, successors and assigns will make objection to or file a remonstrance against any proposed annexation of said real estate by any city within the boundaries of the Sanitary District.

2. That more than a majority of the owners of land in the territory described in the annexation ordinance, the subject matter of this cause, have signed and filed their remonstrance to said annexation within the time provided.

3. That the only issue submitted to the trial court in respect of the sufficiency of the remonstrance is the legal effect to said sewer service agreements, with the City of Indianapolis contending that the legal effect thereof prevents this court from holding said remonstrance sufficient, and the remonstrators contending that the said provision against remonstrance is not a valid waiver of the right to remonstrate in this proceeding by the present owners of land in the territory, although their predecessors in title signed said sewer service agreements, because:

A. The right to remonstrate was not in existence at the time of said purported waiver was signed by the predecessors in title;

B. The owner of land may not validly waive his right to remonstrate against future annexations unless expressly authorized to do so by statute, and said statute which contains the mandatory requirement of representation by the land owner that no objection or remonstrance will be filed against 'any proposed annexation' as a condition precedent to connecting to the sewerage system of the Sanitary District, is void, being in violation of Article 1, Sec. 23 of the Constitution of Indiana, providing an unreasonable and arbitrary classification and therefore unequal privileges, there being no natural and substantial relationship between the waiver of the right to remonstrate against civil annexation and the purpose of said statute in respect to the maintenance and management of the Sanitary District;

C. The statute, even if valid, did not provide nor did the agreements contain specific waiver against 'future' annexations.

The court found for the City of Indianapolis and against the remonstrators, that the remonstrance filed herein cannot be held sufficient because of the sewer service agreements aforesaid, and the remonstrators herein, by their said waiver signed by their predecessors in title, have waived their right to remonstrate against the annexation subsequently enacted which is the subject matter of this cause.

The court, then, on its findings of fact entered its judgment that Special Ordinance No. 25, 1959, of the City of Indianapolis, annexing territory to the said City of Indianapolis, shall forthwith take place and be in effect notwithstanding the remonstrance filed herein; that the effective date of said annexation is and shall be the date of the judgment.

The court further ordered the Clerk of the Circuit Court of Marion County to deliver forthwith a copy of the judgment to the Clerk of the City of Indianapolis, who shall record same in the Ordinance Record and make a proper cross reference to the page thereof upon the margin where such original ordinance was recorded.

Thereafter, the remonstrators timely filed their motion to correct errors.

The motion to correct errors sets forth three specific grounds on which remonstrators rely for reversal.

Specification 1 was that the court erred in finding the remonstrance in this cause cannot be held sufficient because of sewer service agreements signed by the predecessors in title of more than a majority of the owners of land in the territory described in the annexation ordinance which is the subject of the cause; the fact that such sewer service agreements had been so signed was stipulated...