Mayor of Jeffersonville v. Weems

• Decision Date: 12 December 1854
• Parties: THE MAYOR OF THE CITY OF JEFFERSONVILLE v. WEEMS and Others
• Court: Indiana Supreme Court

5 Ind. 547

THE MAYOR OF THE CITY OF JEFFERSONVILLE v. WEEMS and Others

Supreme Court of Indiana

December 12, 1854

APPEAL from the Clark Circuit Court.

Reversed and remanded.

William T. Otto and John S. Davis, for the appellant.

Charles Dewey, for the appellee.

OPINION

DAVISON J.

The mayor and common Council of the city of Jeffersonville applied, by petition, to the board of county commissioners of Clark county, for the annexation to that city of certain territory. French Weems and others, the owners of the property sought to be annexed, appeared to the petition, and resisted the application by remonstrance.

The board made an order in compliance with the prayer of the petition, from which the defendants appealed; and the Circuit Court upon their motion, dismissed the case, on the ground that it was not within the jurisdiction of the board of commissioners.

The record shows, that prior to the commencement of this suit, a certain corporation, named the "Jeffersonville Association," made a map of the city of Jeffersonville and of the territory prayed to be annexed, which map including Ninth street, was duly recorded; whereby that street and the lots south of it became a part of the city but the map, so far as it embraced the lots laid off north of Ninth street, was never recorded. This map was before the commissioners when they tried the cause, having accompanied the petition as part of it, and as descriptive of the territory in question. Had the county board power to annex to the city the lots designated in the unrecorded part of the map? This is the only question before us.

An act entitled "an act for the incorporation of cities," approved June 18, 1852, contains the following provisions: "SEC. 81. Whenever there shall be lots laid off and platted, adjoining such city, and a record of the same is made in the recorder's office of the proper county, the common council may, by a resolution of the board, extend the boundary of such city, so as to include such lots; and the lots thus annexed shall thereafter form a part of such city and be within the jurisdiction of the same," &c.

"SEC. 82. When any city shall desire to annex contiguous territory thereto, not platted or laid off, the common council shall present to the board of county commissioners a petition, setting forth the reasons for such annexation, and shall accompany the same with a map or plat accurately describing by metes and bounds the territory proposed to be attached, which shall be verified by affidavit." 1 R. S. 1852, pp. 220, 221.

These are the only provisions in our statutes prescribing the mode in which a city may extend her boundaries.

The common council, it is evident, had no right, by resolution under section 81, to include the lots north of Ninth street; because no plat of them had ever been recorded. Nor can these lots be annexed in the mode prescribed in section 82, if the power given to the commissioners be restricted by the literal import of the words "not platted or laid off," as used in that section. These words, if literally interpreted, would deprive the county board of jurisdiction in the present case; but it...