Huff v. City of La Fayette

• Decision Date: 15 October 1886
• Citation: 8 N.E. 701,108 Ind. 14
• Parties: Huff v. City of La Fayette.
• Court: Indiana Supreme Court

108 Ind. 14

8 N.E. 701

Huff

v.City of La Fayette.

Supreme Court of Indiana.

October 15, 1886.

Appeal from Tippecanoe circuit court.T. F. Palmer and S. A. Huff, for appellant. W. C. L. Taylor, for appellee.

Zollars, J.

Appellant instituted this action against the city of La Fayette to recover taxes paid to it, and to enjoin the collection of taxes which it was threatening to collect. A demurrer was sustained below to each of the two paragraphs of the complaint. We limit our examination to the second paragraph, as it is conceded in argument that a decision as to its sufficiency will dispose of all material questions presented by this appeal. To generalize somewhat, it appears from the averments of this paragraph that appellant's lands, specifically described, are farm lands, and can be used for no other purpose; that the city, since 1875, has claimed the right to tax them for city purposes, and has based, and still bases, that claim upon the further claim that those lands were annexed to the city by the board of commissioners of Tippecanoe county, in 1868. Appellant assails the proceeding of the county board which led to the order of annexation, and avers that those proceedings, and the final order of annexation, are void for want of jurisdiction. It is averred, in substance, that the board did not have jurisdiction, either of the subject-matter or of the person, so far as he is concerned.

Among other contentions, it is insisted, in the first place, that the petition upon which the county board acted was not sufficient to give that body jurisdiction.

Three objections to the petition are urged. The first is that it was a petition by the mayor of the city, and not by the common council, as required by section 3191, Rev. St. 1881. The petition to the county board, and the subsequent proceedings upon which they based the final order of annexation, are copied into the complaint, and thus made a part of it. The petition is signed, “John Pettit, Mayor.” Upon its face, however, it appears to be a petition by the mayor and common council. The petition starts thus: “ To the Board of Commissioners of Tippecanoe County, Ind.: The mayor and common council of the city of La Fayette would respectfully petition,” etc. In another portion of the petition is this: “And the council would respectfully urge the annexation,” etc. The statute, (section 3196, Rev. St. 1881,) which is substantially, if not in all respects, the same as the law in force when the proceeding was had before the county board, provides that, if the city desires the annexation of unplatted lands, the common council shall present a petition to the county board asking for such annexation. The petition must be presented by the common council, and not by the common councilmen individually. And while it was held in the case of Stilz v. City of Indianapolis, 55 Ind. 515, that the petition signed by the councilmen was sufficient in the case before the court, it was not held, and has not been held in any case by this court, that the signatures of the councilmen to the petition are necessary. In that case it will be observed that the petition was authorized by the common council, acting as a common council, and doubtless, if it had not been so authorized, it would have had no validity whatever. Upon an analogousquestion, see City of Indianapolis v. Bly, 39 Ind. 373. The petition must be by the common council,-must be an act of the common council when in session, representing the city. The statute does not provide by whom it shall be signed, or that it shall be signed by any one. We know of no reason why the petition, with authority from common council, may not be signed by and presented to the county board by the mayor of the city. There is nothing in the complaint in any way charging that the common council, acting as a common council, did not order the petition drawn just as it was, and to besigned by the mayor as it was. It is shown that through the entire proceeding, to the end, the county board treated the petition as the petition of the common council. In this collateral attack upon the proceedings of the board, and under the averments in the complaint, it must be presumed that the petition was the petition of the common council, and that, before proceeding upon it, the board ascertained and determined that fact. That was a fact to be determined by the board before proceeding.

The second and third alleged fatal defects in the petition are that it was not alleged therein that appellant's lands were adjoining the city, and were not laid off and platted; and, further, that it was not alleged therein that appellant would not consent to the annexation of his land. The statute (section 3196, supra) provides that any land contiguous to the city may be annexed by the consent of the owner, and by a two-thirds vote of the common council. It further provides that contiguous, unplatted territory, to the annexation of which the owner will not consent, may be annexed by the county board, upon the petition of the common council, etc. It was not necessary that appellant's lands should have been contiguous to the city. If his, and the other tracts of land proposed to be annexed, were contiguous to each other, and one of them was contiguous to the city, that was sufficient. Catterlin v. City of Frankfort, 87 Ind. 45. The petition clearly shows that some of the lands proposed to be annexed were contiguous to the city. It is also shown that a plat of the lands proposed to be annexed was filed with, and as a part of, the petition. That plat is not set out in the complaint, nor is there any allegation that it did not show the exact situation and description of the lands proposed to be annexed, including appellant's lands. For aught that is made to appear, that plat may show that appellant's lands were unplatted lands, and contiguous to the city. In a collateral assault upon the proceedings, it should be presumed that it did, and that it showed that those lands...