Forks v. City of Warsaw

• Decision Date: 19 October 1971
• Docket Number: No. 171S11,171S11
• Citation: 257 Ind. 237,273 N.E.2d 856
• Parties: Willodean FORKS et al., Appellants, v. CITY OF WARSAW, Indiana, Appellee.
• Court: Indiana Supreme Court

Page 856

273 N.E.2d 856

257 Ind. 237

Willodean FORKS et al., Appellants, v. CITY OF WARSAW, Indiana, Appellee.

No. 171S11.

Supreme Court of Indiana.

Oct. 19, 1971.

George M. Bowser, Warsaw, for appellants.

Rockhill, Vanderveer, Kennedy & Pinnick, by Herbert H. Bent, Warsaw, for appellee.

GIVAN, Judge.

This is an appeal from a judgment sustaining a motion to dismiss appellants' second amended and supplemental complaint to set aside and vacate Ordinance No. 535 of the City of Warsaw, Indiana. The ordinance purported by annex certain territory to the City of Warsaw. The appellants do not own real estate located within the territory sought to be annexed. They do, however own 'mobile homes * * * and are owners of other tangible and intangible personal property in the territory * * *.' The prayer of appellants' complaint asked that Burns Ind.Stat., 1963 Repl., §§ 48--701 to 48--702 be declared in violation of Article 1, § 23 of the Constitution of Indiana and the Fourteenth amendment to the Constitution of the United States in that the statute provides for remonstrance by owners of real estate only thus denying equal protection of the laws to other residents of the affected territory. Appellants thus contend that Ordinance No. 535 of the City of Warsaw enacted under authority of an unconstitutional statute is, therefore, void. Appellee's motion to dismiss was filed under the Rules of this Court, TR 12(B)(6) upon the contention that the complaint failed to state a claim upon which relief could be granted. This Court has jurisdiction of this case under Burns Ind.Stat., 1968 Repl., § 4--214, IC 1971, 33--3--2--7 which statute provides for cases questioning the constitutionality of a statute or an ordinance of a municipal corporation to be appealed directly to this Court.

Appellants first claim the trial court erred in sustaining the motion to dismiss claiming that if a case is well pleaded, judgment should be made on the basis of facts presented. However, in the case at bar there is no contest of the facts. The facts are completely presented by appellants' complaint and the exhibits attached thereto. These facts are quite simple as above set out and are not contested by the appellee. Therefore, under paragraph (B)(8) of TR 12 the trial court was justified in rendering judgment upon the pleadings in response to appellee's motion to dismiss. Prior to the adoption of Rule 12, the law had been that if it appears to a certainty that no relief can be granted under any set of facts which can be proved in support of the allegations in a complaint, then dismissal is proper. Conley v. Gibson (1957), 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80. In the case at bar the appellants have stated they resided in the territory sought to be annexed; that they do not own real estate in that territory and, therefore, cannot file a remonstrance under the statute, thus the statute is unconstitutional in denying them equal protection of the law. The motion to dismiss admits these facts. 23 I.L.E., Pleading and Pretrial Practice, § 103, page 265. The only issue, therefore, before the trial court was the determination as to whether or not the statute was constitutional in view of the existing factual situation. We hold the trial court did not err in summarily disposing of the case upon the pleadings.

We thus come to the question as to whether or not the statute here challenged is unconstitutional as claimed by the appellants. The legislature has the power to authorize the extension of the boundaries of a municipal corporation. The individual property owner does not have a vested interest in the maintenance of those boundaries at any particular location. Woerner, etc. v. City of Indianapolis (1961), 242 Ind. 253, 177 N.E.2d 34. The General Assembly of Indiana has chosen to give a statutory right of remonstrance to owners of land located within territory sought to be annexed by a municipal corporation as provided in the statute here challenged. Prior to the passage of the above statute this Court had held that territory may be annexed with or without the consent of the inhabitants therein. Taggart, Auditor et al. v. Claypool (1896), 145 Ind. 590, 44 N.E. 18. The question is then, did the legislature by giving the right of remonstrance to some of the inhabitants within the territory deny equal protection to those residents who were not given the right of remonstrance? It is well established that the equal protection clause does not prevent reasonable classification. Morey v. Doud (1957), 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485; McErlain v. Taylor (1934), 207 Ind. 240, 192 N.E. 260. In order to be reasonable the classification must not be arbitrary or capricious, and it must bear a reasonable relation to the object of the legislation. Morey v. Doud, supra; Bolivar Twp. Bd. of Finance of Benton County v. Hawkins (1934), 207 Ind. 171, 191 N.E. 158. There can be no question but that an annexation affects all persons residing within the territory. However, there are substantial differences which warrant the legislative classification in the statute in question. Inhabitants who do not own land are more likely to be temporary residents, whereas landowners have a greater tendency to be permanent residents. The landowner has an investment in property which he cannot remove from the territory. His only escape is to dispose of his real estate; whereas, the person who does not own land, but like the appellants owns only personal property, need only remove his person and property from the territory. We hold that the legislature adopted a reasonable classification in providing for remonstrance by those persons who owned real estate within the territory. The substantial nature of their interest and the immovability of th real estate justifies the classification.

This general principle of law was recognized by the Colorado Supreme Court in Rogers v. City and County of Denver (1966), 161 Colo. 72, 419 P.2d 648. This case had a factual background stronger than that presented by the appellants in this case. In the Colorado case the appellant landowners had signed a petition to avoid annexation; however, a number of those signing were rejected by the City Council for the reason that they had purchased their land in the year 1964 and were, therefore, not liable for any property tax in the year of 1963, which was the year next preceding the year in which the petition was filed. The statute in question defined a landowner as an owner in fee who in the next preceding calendar year becomes liable for a property tax thereon. The Colorado Supreme Court held that the provisions of the statute cannot violate the appellants' right to equal protection and in so doing quoted from 37 Am. Jur. at page 648 as follows:

"Consent of Inhabitants.--It is well settled that the legislature may * * * authorize the annexation of, contiguous or other territory without the consent or even against the remonstrance of persons residing therein. The legislature may, however, and usually does, provide for such consent as a condition of annexation. Inasmuch as the legislature may provide for the annexation of territory to municipal...