Forsythe v. City of Hammond

• Decision Date: 03 July 1895
• Docket Number: 9,215.
• Parties: FORSYTHE v. CITY OF HAMMOND et al.
• Court: United States Circuit Court, District of Indiana

68 F. 774

FORSYTHE v. CITY OF HAMMOND et al.

No. 9,215.

United States Circuit Court, D. Indiana.

July 3, 1895

Miller Winter & Elam, for complainant.

Peter Crumpacker, for defendants.

BAKER District Judge.

This is a suit to enjoin the collection of taxes levied for city purposes by the defendant city on the lands of the complainant. The question for decision is the sufficiency of the bill to entitle the complainant to the equitable relief for which she prays. The sufficiency of the bill depends upon the answers to be given to two questions:

First. Were the proceedings and judgment of the circuit court of Porter county, Ind., which adjudged the annexation of certain lands, including the complainant's, to the city of Hammond, illegal and void, or were they valid? It is contended that the judgment annexing the lands of the complainant and others to the city of Hammond is void, because the creation and enlargement of municipal bodies are purely political questions, to be determined by the legislature, and not judicial, to be determined by the courts; and hence that the legislature cannot confer upon the courts power or authority to adjudge or decree the annexation of territory to a municipal body. It is not denied that the legislature has attempted to confer such power upon the courts, but the contention is that the question of the enlargement of the limits of a municipal body is purely a political question, and that, under the constitution of this state, no power except judicial can be conferred upon the courts. Counsel for the complainant rely upon a number of authorities in support of their contention, which we here cite: Dill. Mun. Corp. Sec. 9; 1 Beach, Pub.Corp. § 80; Stone v. Charlestown, 114 Mass. 220; People v Bennett, 29 Mich. 451; Galesburg v. Hawkinson, 75 Ill. 152; People v. Town of Nevada, 6 Cal. 143. It must be conceded that these authorities, to which others might be added, do hold that the legislature of a state cannot confer power upon the courts to change the boundaries of such municipal bodies as cities or towns by annexing territory to or disconnecting it from the, because such acts are in their essential nature legislative and political, and not judicial; that the same power cannot be either legislative or judicial, as the legislature may be disposed to retain it or surrender it to the judiciary; and that, as it is a legislative power, the courts cannot be invested with it. It is said that whether a city, town, or village shall be incorporated, and, if incorporated, whether enlarged or contracted in its boundaries, presents no question of law or fact for judicial determination. It is, so it is said, purely a question of policy, to be determined by the legislative department. I should perhaps feel constrained to yield to the force of the reasoning of these authorities if the constitution of this state conferred power on the legislature to create such municipal bodies, or to enlarge or contract their boundaries by the enactment of special laws applicable to each particular municipal body. Such power, however is denied to the legislature by the constitution of the state. The constitution requires the organization of cities and towns and the enlargement or contraction of their boundaries to be provided for and regulated by general laws. These laws in the nature of things, must be prospective, and must specify the conditions on the happening of which such creation, enlargement, or contraction may be made, and must provide some tribunal to determine the existence of those conditions. 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. The constitution of the state compels the legislature to confide this power to some tribunal; and to none could it more appropriately have been confided than to the courts. It is a legitimate function of courts to ascertain and determine the existence or nonexistence of a given state of facts. The legislature is required, as we have seen, to provide by general laws for the creation of municipal bodies, and for the enlargment and contraction of their boundaries; and no limitation has been placed upon the power of the legislature to confer upon any tribunal it may select the authority to determine when the conditions are present which...