Evansville-Vanderburgh Metropolitan Bd. of Zoning Appeals v. Meadow Ridge, Inc.
| Decision Date | 05 June 1967 |
| Docket Number | No. 1,No. 20438,EVANSVILLE-VANDERBURGH,20438,1 |
| Citation | 141 Ind.App. 135,226 N.E.2d 710 |
| Parties | METROPOLITAN BOARD OF ZONING APPEALS, Appellant, v. MEADOW RIDGE, INC., Appellee |
| Court | Indiana Appellate Court |
Jerome L. Salm, Robert S. Matthews, Ralph E. Moore, Evansville, for appellant.
Edwin W. Johnson, John L. Carroll, Evansville, for appellee.
The question presented in this appeal involves the capacity of the Evansville-Vanderburgh Metropolitan Board of Zoning Appeals to maintain a suit for an injunction against an alleged violation of a zoning ordinance.
The appellant filed its complaint which appellee answered in admission and denial under Rule 1--3. At the commencement of the trial, the appellee moved to dismiss on the grounds the appellant was not a legal entity; after the appellee so moved, the appellant moved to substitute the Evansville-Vanderburgh Metropolitan Planning Commission as plaintiff. The motion to substitute was denied and the motion to dismiss was granted and judgment accordingly entered by the court for the appellee.
The appellant filed a motion for a new trial alleging the following errors:
1. Error of law in holding the Evansville-Vanderburgh Metropolitan Board of Zoning Appeals was not a legal entity and had no capacity to sue.
2. Error of law in not allowing the Evansville-Vanderburgh Metropolitan Panning Commission to be substituted as plaintiff instead of Evansville-Vanderburgh Metropolitan Board of Zoning Appeals.
3. The decision of the court is not sustained by sufficient evidence.
4. The decision of the court is contrary to law.
On appeal the error alleged is the overruling of the motion for a new trial.
On appeal the appellant contends it has the capacity to sue or in the alternative that if it does not have such capacity, the defendant waived such defect by answering or that if the appellee did not waive the defect, the appellant should have been allowed to amend its complaint.
We will first discuss appellant's contention that the Evansville-Vanderburgh Metropolitan Board of Zoning Appeals is a legal entity and has the capacity to bring suit to enjoin a violation of a zoning ordinance.
The Legislature in 1947, enacted a general act (Acts 1947, ch. 174, pp. 571--601) granting the authority to a city council, town board of trustees, or board of county commissioners to create a plan commission, Ind.Stat.Ann. § 53--701 (1964 Repl.). Such plan commission has the power to sue and be sued by its legal name, '_ _ Plan Commission', Ind.Stat.Ann. § 53--728 (9) (1964 Repl.). The City Council or County Board of Commissioners was given a statutory mandate to create a board of zoning appeals as part of the zoning ordinance, Ind.Stat.Ann. § 53--767 (1964 Repl.). The powers and duties of the board of zoning appeals are enumerated in Ind.Stat.Ann. § 53--778 (1964 Repl.). This section does not include as one of the statutory powers the power to institute a suit for the violation of a zoning ordinance. However, such power is given to the plan commission, the board of zoning appeals or any designated enforcement official in Ind.Stat.Ann. § 53--791 (1964 Repl.).
In 1953, the Legislature gave statutory authorization for a metropolitan planning commission in counties having a population of more than 125,000 and less than 175,000 wherein there is a city having a population of more that 125,000 (Acts 1953, ch. 258, § 1, p. 929).
The 1953 Act was amended in 1959 (Acts 1959, ch. 59, pp. 126--127) and 1961 (Acts 1961, ch. 114, pp. 217--221). The 1953 Act as amended 1 is found in Ind.Stat.Ann. §§ 53--801--810.
For our discussion we will use the acts rather than the unofficial compilation.
The section of the 1953 Act pertinent to the question involved is:
'The powers, functions and duties of the metropolitan plan commission shall include those commonly assigned to the city plan commission and the county plan commission by the existing laws of the State of Indiana except as expressly stated otherwise in this act.
'The commission may sue and be sued collectively by its legal name, styled thus, '_ _ Regional Plan Commission,' service of process being had on the president of the commission but no costs shall be taxed against the commission or any of its members in any action.'
(Acts 1953, ch. 258, § 7, pp. 930--931.)
The section of the 1961 amendment pertinent to the question involved are:
'There shall be created within the metropolitan plan commission a board of zoning appeals which board shall consist of seven members to be appointed as follows: * * *'
(Acts 1961, ch. 114, § 8, p. 220.)
There is no express repeal in the 1953 Act as amended. Appellant correctly states the rule that implied repeals of earlier acts by a later act are not favored and exist only where there is irreconcilable conflict between the two acts.
There is another rule of statutory construction dealing with conflicts between a general statute enacted at an earlier date and a later statute enacted for a particular locality. In Sutherland, Statutory Construction, 3rd ed. § 2022 p. 490, the rule is stated:
'Where, however, the later special or local statute is not irreconcilable with the general statute to the degree that both statutes cannot have a coterminous operation, the general statute will not be repealed, but the special or local statute will exist as an exception to its terms.'
In support of this proposition of an exception the author cites the case, Western and Southern Indemnity Co. v. Cramer (1937), 104 Ind.App. 219, 10 N.E.2d 440.
We are of the opinion the following factors indicate a sufficient conflict between the statute of local application (Acts 1953, ch. 258, as amended) and the general statute (Acts 1947, ch. 174, as amended) that the local act is to be considered an exception to the general act in so far as the capacity of the board of zoning appeals to maintain a suit for an injunction of a violation of a zoning ordinance:
1. The separate zoning and planning functions of the city and...
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...to sue. The obvious conclusion is that the defendant elected to waive that defense. In the case of Evansville-Vanderburgh, etc. v. Meadow Ridge, Inc. (1967), 141 Ind.App. 135, 226 N.E.2d 710, the Appellate Court held that the lack of capacity of a plaintiff to maintain a suit may be raised ......
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...conflict with the 1947 provision, the latter was not impliedly repealed. Evansville-Vanderburgh Metropolitan Bd. of Zoning Appeals v. Meadow Ridge, Inc. (1967), 141 Ind.App. 135, 226 N.E.2d 710. The amendatory act of March 1951 which struck the hearing provision from § 105 of the basic 1951......