Forsyth v. City of Hammond

Citation41 N.E. 950,142 Ind. 505
PartiesFORSYTH et al. v. CITY OF HAMMOND.
Decision Date07 November 1895
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

On rehearing. For former report, see 40 N. E. 267.

Miller, Winter & Elam, A. L. Jones, J. W. Youche, and Thos. J. Merrifield, for appellants. E. D. Crumpacker, for appellee.

HOWARD, C. J.

One of the positions taken by counsel in support of their petition for a rehearing of this case is that the circuit court had no jurisdiction of the appeal from the board of county commissioners, for the reason that the annexation of territory to a city is a legislative, and not a judicial, function, and, as such, in case of unplatted lands, the board of county commissioners is given sole and final jurisdiction in the premises. The proposition so advanced was not urged in the original argument, nor on the trial of the cause, and is now brought to our attention for the first time; but, as it is a question that affects the jurisdiction of the trial court, and also of this court, it is one that will be entertained at any time.

It may be conceded that annexation of territory to a city is a legislative function. This function is exercised by the common council when it resolves to annex certain described lands to the city, and to present a petition therefor to the county board. It must be admitted, however, as we think, that the after proceedings had upon the petition are of a judicial nature. The petition must give the reasons why, in the opinion of the council, the annexation should take place. The sufficiency of such reasons, and whether they in fact exist, calls for the decision of the tribunal appointed to hear the petition. Notice of the presentation of the petition is also provided for, and adverse parties are thus brought in. Whether the proper preliminary steps have been taken, whether the reasons given in the petition are true and are sufficient, seem to be questions calling for a judicial examination and decision. In a similar case (Grusenmeyer v. City of Logansport, 76 Ind. 549) it was said by Woods, J., speaking for this court, that “the decision of the board in such a case is judicial, and not merely administrative or legislative.” But if the board, in considering and deciding upon the petition, acts in a judicial capacity, certainly the legislature may, as it has done in this case, provide for an appeal to the courts, to determine whether the city council and the county board have complied with the statutory requirements in the action taken. It is the law itself, as has been said, that fixes the conditions of annexation; and the office of the board and of the court is to determine whether the conditions so prescribed by the law have been complied with. The legislature has expressly provided for such judicial determination by the board and for an appeal therefrom to the courts, and this court has frequently recognized the right to such appeal. Section 4224, Rev. St. 1894 (section 3243, Rev. St. 1881); Catterlin v. City of Frankfort, 87 Ind. 45;Chandler v. City of Kokomo, 137 Ind. 295, 36 N. E. 847; Wilcox v. City of Tipton (at this term) 42 N. E. ---. See, also, Manufacturing Co. v. Emery (at this term), 41 N. E. 814. See, also, City of Wahoo v. Dickinson, 23 Neb. 426, 36 N. W. 813.

In Forsythe v. City of Hammond, 68 Fed. 774, Baker, J., in passing upon an application, made to the United States circuit court for the district of Indiana by one of the appellants in the case at bar, to enjoin the appellee from collecting taxes upon the lands annexed in this proceeding, speaking of the question now under consideration said: “The power to hear and determine whether the conditions prescribed by law for the creation, enlargement, or contraction of a municipal body exist is judicial in its nature, and may be appropriately conferred upon the courts. The creation, enlargement, or contraction of a municipal body is not the act of the court, but is the act and result of the law. The court simply determines whether the conditions are present which authorize the creation of a municipal body, or the enlargement or contraction of its limits; and, when these conditions are judicially ascertained, the law, ex proprio vigore, creates the municipal body, or enlarges or contracts its boundaries.”

Counsel next repeat the contention that the action of the common council of East Chicago, in attempting to annex to that city certain of the lands here in controversy, without first having secured the assent of the owners of that part thereof adjacent to the city, cannot be attacked collaterally in this case. We cited in the original opinion numerous authorities to the proposition that the jurisdiction of an inferior tribunal, as a common council, may be attacked collaterally, and evidence offered to show that the tribunal did not have jurisdiction of the subject matter or of the parties. We have attentively read the acute analysis made of those authoritiesby counsel, and are still satisfied that the authorities so cited do establish the truth of the proposition stated. We are inclined to think that counsel have not carefully distinguished between facts as to the jurisdiction of a body and facts as to the proceedings and acts of that body after jurisdiction is shown. If there is jurisdiction, then the decision that follows is conclusive, except on direct attack. But jurisdiction itself may always be inquired into, and it is only after jurisdiction is established, both of the subject matter and of the person, that the decision of the tribunal will be invulnerable to collateral attack. As said by this court in Board v. Markle, 46 Ind. 96, cited in the original opinion: “The facts...

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