Meek v. State ex rel. Linville

• Decision Date: 07 October 1909
• Docket Number: No. 21,253.,21,253.
• Citation: 89 N.E. 307,172 Ind. 654
• Parties: MEEK, Town Clerk of Jonesboro, v. STATE ex rel. LINVILLE et al.
• Court: Indiana Supreme Court

172 Ind. 654

89 N.E. 307

MEEK, Town Clerk of Jonesboro,

v.STATE ex rel. LINVILLE et al.

No. 21,253.

Supreme Court of Indiana.

Oct. 7, 1909.

On petition for rehearing. Former opinion (88 N. E. 299) modified, and petition overruled.

MONTGOMERY, C. J.

In support of appellant's petition for a rehearing, counsel insist that section 4230, Burns' Ann. St. 1901 (Acts 1877, p. 22, c. 14), is not within the purview of the act of March 6, 1905 (Acts 1905, p. 219, c. 129), “concerning municipal corporations,” and hence was not thereby repealed. The act of 1877 relates only to the disannexation of unplatted suburban lots or tracts of ground, and for that reason forms no basis or justification for the board's denial of the petition to disannex the platted addition mentioned in this proceeding. This fact meets and disposes of appellant's claim that under section 4230, supra, the town board had discretionary power to grant or deny the petition for disannexation and from its action no appeal to court was authorized.

This holding renders it unnecessary for us to decide in this case whether or not the act of 1877 was repealed by the act of 1905. The declaration in the original opinion to the effect that the former act was repealed by section 272 of the latter act is withdrawn, and the opinion to be regarded as modified to that extent. See State ex rel. v. Ives et al., 167 Ind. 13, 18, 78 N. E. 225. The constitutionality of section 10 of the act of March 12, 1907 (Acts 1907, p. 621, c. 279), granting a right of appeal to the circuit court from the action of boards in these matters, was not questioned in the original briefs, and that question cannot now be raised or considered. Indiana, etc., Co. v. St. Joseph, etc., Co., 159 Ind. 42, 63 N. E. 304, 64 N. E. 468;Armstrong v. Hufty, 156 Ind. 606, 630, 55 N. E. 443, 60 N. E. 1080, and cases there cited.

The petition for rehearing is overruled.