Johnson v. City of Indianapolis

• Decision Date: 29 November 1910
• Docket Number: 21,500
• Citation: 93 N.E. 17,174 Ind. 691
• Parties: Johnson v. City of Indianapolis et al
• Court: Indiana Supreme Court

93 N.E. 17

174 Ind. 691

Johnson v. City of Indianapolis et al

No. 21,500

Supreme Court of Indiana

November 29, 1910

From Superior Court of Marion County (74,571); Charles T. Hanna Judge.

Suit by Charles E. Johnson against the City of Indianapolis and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

Harding & Hovey and O. U. Newman, for appellant.

Frederick E. Matson and Edmund B. Walker, for appellees.

OPINION

Jordan, J.

Action by appellant against the city of Indianapolis, its mayor, and the members of its board of public works, to enjoin them from proceeding to construct a certain sewer, and also to enjoin them from levying an assessment to defray the costs of the improvement against the land of appellant, which is situated within the taxing district. Appellees' several demurrers for want of facts were sustained to the complaint, and appellant having elected to stand upon his complaint, judgment was rendered against him on demurrer. He appeals, and assigns error on the ruling of the court in sustaining the demurrers.

The complaint discloses the name of the mayor of said city and the name of the several persons constituting its board of public works. Plaintiff further alleges that he is the owner in fee simple of real estate situated in Marion county, State of Indiana; that his land has never been platted, that the lands adjacent thereto have not been platted or held for sale as town lots, and have never been placed on the market for sale as town property; that he and his family have resided for many years in a dwelling upon his land, and have during all said years and do now, depend upon the cultivation thereof for a livelihood, and it is not now, nor has it been, his intention to subdivide his land, or to offer it for city purposes. It is alleged that on December 3, 1906, the common council of said city of Indianapolis passed an ordinance, whereby it attempted to annex to the city certain territory lying east thereof, which embraced the land owned by appellant and which is here in controversy; that the common council of said city of Indianapolis in making said annexation did not exercise the legislative authority conferred upon it by § 242 of the towns and cities act of 1905 (Acts 1905 p. 219, § 8896 Burns 1908) in a reasonable manner, but that said action of the council was unreasonable in this, to wit: That the east line of said territory so embraced in said alleged annexation ordinance is distant more than seven thousand feet from the east boundary line of the city as theretofore established, and said territory so attempted to be annexed to the city embraced more than five hundred acres of unplatted farm land which has never been used otherwise than for grazing, agricultural and horticultural purposes; that said annexation ordinance was passed by the common council of said city in order to bring said land into the corporate limits so that it could be assessed by the city authorities for the construction of what is known as "an intercepting sewer," which is proposed to be constructed from the east end of what is known as the East Michigan street sewer northwardly through the east end of said city to East Tenth street; that the action of the common council in passing such annexation ordinance was not a reasonable exercise of the authority conferred by § 8896, supra, but that it was an unreasonable and unwarranted exercise of the authority conferred by said section, and that it should be set aside and held for naught; that no adequate notice of the passage of the alleged ordinance has ever been given, and that it was not "published for at least two consecutive weeks in a daily newspaper of general circulation published in" said city of Indianapolis, as provided by § 8896, supra, but that the pretended ordinance was published for two days only in The Indianapolis Sun, which publications were made only in the issues of said newspaper of December 12, 1906, and December 19, 1906, whereas, it is alleged, that by the provisions of the law it was necessary that the publication of such ordinance should be made daily during at least two consecutive weeks; that by reason of the failure of said city so to publish said ordinance each day for two consecutive weeks, said pretended ordinance is unlawful and of no force or effect.

The complaint further proceeds to show that the board of public works of the city of Indianapolis, in August, 1907, adopted a resolution declaring the necessity, and ordering the construction of an intersecting sewer, commencing at the east end of what is known as the East Michigan street sewer; that an estimate was made by the city engineer in respect to the cost of the sewer in accordance with said resolution adopted by the board, and that the board of public works has caused to be prepared a map showing the boundary lines thereof, the total area, subject to be assessed for the construction thereof, as provided by section 117 of said act of 1905 (§ 8722 Burns 1908), and that said map as so prepared shows that the plaintiff's land and a great part of the other lands within the aforesaid territory attempted to be annexed are embraced within the district so to be assessed for the construction of said proposed sewer; that plaintiff and other owners of land within said territory so annexed, and which is embraced within the taxing district proposed to be assessed to raise money for the payment of the construction of said improvement, appeared before said board of public works and remonstrated against the passing of any resolution to establish any such sewer, and introduced much evidence to show that the special benefits to the several lots and parcels of land within such area will not be equal to the estimated cost of the sewer, and that all the evidence introduced in said matter before the board of public works tended to prove the negative of such question, and no evidence was heard by said board of public works tending in any way to prove the affirmative of said question; that notwithstanding all this, said board "arbitrarily," "wrongfully," "fraudulently" and in opposition to all the evidence introduced on the matter, determined said question against plaintiff and the other landowners; that the board has advertised to receive bids for the construction of said sewer in accordance with the resolution which it adopted, and it is alleged that unless the board is restrained by order of the court it will on October 7, 1907, receive bids, and enter into a contract for the construction of the sewer, and that there will be entered against the real estate of plaintiff assessment liens that will be illegal and excessive in amount. Wherefore, plaintiff prays for a temporary restraining order, and, upon a final hearing of the cause, that said defendants and each of them be forever enjoined from constructing said sewer.

Section 8896, supra, of the governing act pertaining to cities and towns, invests the common councils of cities with the power to declare and define by ordinance the entire corporate boundaries of the city, and provides that such ordinance, properly certified, shall be conclusive evidence in any court or proceeding of such boundaries, except as provided in the next section. It is further provided by this section that the "common council may, also, by separate ordinance, not purporting to define the entire boundaries of such city, annex contiguous territory, whether platted or not, to such city, and a certified copy of such ordinance shall be conclusive evidence in any proceeding that the territory therein described was properly annexed and constitutes a part of such city, except as provided in the next section. Immediately after the passage of every such ordinance as is provided for in this section, the same shall be published for at least two consecutive weeks in a daily newspaper of general circulation published in such city." (Our italics.)

By § 243 of said act (§ 8897 Burns 1908) it is provided that "whenever such territory is annexed to such city as provided in the foregoing section, whether by general ordinance defining the city boundaries, or by special ordinance for the purpose of annexing territory, and such territory so sought to be annexed is unplatted ground, or lies within the corporate limits of any other town or city an appeal may be taken from such annexation by one or more persons deeming himself or themselves aggrieved, or injuriously affected, filing their remonstrances in writing against such annexation, together with a copy of such ordinance, in the circuit or superior courts of the county where such territory is situated within ten days after the last publication provided for in the preceding section; such written remonstrance or complaint shall state the reason why such annexation ought not in justice take place." Notice of appeal is required to be given to the proper officers of the city seeking to make the annexation, and the city is to be made a defendant in the appeal. Continuing, the section provides that "the court shall thereupon proceed to hear and determine such appeal without the intervention of a jury, and shall give judgment upon the question of such annexation according to the evidence which either party may introduce relevant to the issue." It is evident that the publication of an annexation ordinance is not by the provisions of § 8896, supra, made a condition precedent to its passage, or, in other words, it is not required to be first published before it can legally be adopted by the common council; but publication is merely made a condition subsequent to its passage, the very purpose of such publication is to notify property owners, and others concerned, that the lands described in the ordinance have been annexed to and made a...