Montagano v. City of Elkhart, 770--A--103

• Citation: 149 Ind.App. 283,271 N.E.2d 475
• Decision Date: 27 July 1971
• Docket Number: No. 770--A--103,No. 1,770--A--103,1
• Parties: Anthony J. MONTAGANO et al., Appellants, v. CITY OF ELKHART, Indiana, Appellee
• Court: Court of Appeals of Indiana

Page 475

271 N.E.2d 475

149 Ind.App. 283

Anthony J. MONTAGANO et al., Appellants, v. CITY OF ELKHART, Indiana, Appellee.

No. 770--A--103.

Appellate Court of Indiana, Division No. 1.

July 27, 1971.

Douglas D. Seely, Jr., South Bend, for appellants.

Paul L. Myers, David A. Denton, F. LeRoy Wiltrout, Elkhart, for appellee.

SULLIVAN, Presiding Justice.

In this case the appellants-plaintiffs as taxpayers and residents of the city filed a 'complaint for declaratory judgment' to challenge an annexation ordinance of the Elkhart City Council. On motion of the appellee-defendant, summary judgment was granted on pleading paragraph II of the complaint. ¹ In their motion to correct errors, appellants-plaintiffs contended that entry of summary judgment was contrary to law in that the trial court had held it was without jurisdiction to conduct a hearing on the alleged illegality of the annexation ordinance which was sought by non-residents of the annexed territory. It is from the overruling of this motion that appeal is taken.

The primary issue before this court is whether resident taxpayers of a city who are neither residents nor owners of land in the area to be annexed may challenge an annexation ordinance by a taxpayer's suit in a form purporting to be a suit for declaratory judgment and injunctive relief. In dealing with this issue it should be noted at the outset that we do not deem it a function of this court to plot for the appellants or future litigants a course of legal resistance to governmental action which they feel to be erroneous or ill-advised. Our concern extends only to the specific action pursued here and the propriety of the trial court's granting of summary judgment on pleading paragraph II.

Pleading paragraph II of appellants' complaint is essentially as follows:

'2. That on September 2nd, 1969, the Elkhart City Council adopted an ordinance annexing approximately five hundred eighty-seven (587) acres of land * * *.

'4. That the tract described in said ordiance as tract number seven (7) is thirty (30) feet in width and four hundred (400) feet in length and is the only tract which is contiguous to the City boundaries of the defendant which contiguousness is only thirty (30) feet in length.

'5. The land annexed by said ordinance and the effect thereof is:

(a) Not in the best interests of the City and/or its taxpayers as a whole;

(b) The land is not urban in character, being an economic and social part of the annexing city;

(c) The City is not financially able to provide municipal services to the annexed area within the reasonably near future;

(d) The area annexed is undeveloped and not needed for development of the City in the near future;

(e) The lines of annexation are so drawn as not to form a compact area abutting the municipality.

'6. That plaintiffs as residents and taxpayers of said City will become obligated to pay taxes which will be used to provide the usual municipal services to said area even though the annexation is invalid and in excess of the jurisdiction and power of City Council in adopting said ordinance.

'7. That the defendant should be enjoined from exercising any power or jurisdiction over said area so wrongfully annexed and enjoined from expending any tax revenues for providing any improvements or services in the area.

'8. That plaintiffs, as well as other residents and taxpayers, have no adequate remedy at law and will suffer irreparable harm if the defendant is not so enjoined.

'WHEREFORE, plaintiffs as residents and taxpayers pray that the court declare said ordinance invalid and void, permanently enjoin the defendant from exercising any power or jurisdiction in said area, permanently enjoin the defendant from expending any funds for providing services or improvements in said area and all other just and proper relief.'

In properly framing the issue before us, it is necessary to consider the statutory procedure by which remonstrance to an attempted annexation could have been taken at the time this action was filed. According to Ind.Ann.Stat. § 48--702 (Burns 1963), then in effect, remonstrators must have satisfied two requirements if they were to have the merits of their objections considered. They must: (1) have had standing to challenge the annexation; (2) have filed their remonstrance within certain time limits. The trial court by reference to those requirements was obligated to determine if jurisdiction rested with it.

Despite the fact that on the face of their complaint the appellants-plaintiffs would appear to have complied with the latter requirement of the statute, the first requirement--proper standing to challenge--was unsatisfied. Ind.Ann.Stat. § 48--702 (Burns 1963) is specific in its requirement as to who was a permissible remonstrator:

'(A)n appeal may be taken from such annexation by either a majority of the owners of land in the territory or by the owners of more than seventy-five per cent (75%) in assessed valuation of the real estate in the territory, if they deem themselves aggrieved or injuriously affected, * * *.'

The trial court under such statute was obligated to properly determine whether the remonstrating persons fell within either class of authorized remonstrators. In re Annexation etc. v. City of Anderson (1963) 135 Ind.App. 92, 190 N.E.2d 428. Such a determination was, in fact, a prerequisite to the judicial recognition that a remonstrance had been formally and properly filed and was sufficient to authorize setting of a hearing date and the issuance of summons to the city as defendant. See Daubenspeck v. City of Ligonier (1962) 135 Ind.App. 565, 183 N.E.2d 95.

The appellants-plaintiffs by their own admission represented neither a majority of the landowners nor were they the owners of 75 per cent of the assessed valuation of the annexed land. Therefore, if their complaint was essentially one of remonstration against the annexation ordinance of the appellee-defendant-city, we must affirm the lower court's dismissal of the complaint for want of jurisdiction.

The appellants, however, assert their action is not one of remonstration but one seeking declaratory judgment for all taxpayers upon the validity of the annexation ordinance. They base their action on IC 1971, 34--4--10--2, being Ind.Ann.Stat. § 3--1102 (Burns 1968):

'Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, Municipal ordinance, contract or franchise, may have determined any question or construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.' (emphasis supplied)

To obtain relief under the Uniform Declaratory Judgments Act, the plaintiff must have standing within the purview of the aforementioned statute. The recognized criteria for standing have been recited in Zoercher v. Agler (1930) 202 Ind. 214, 221, 172 N.E. 186:

'* * * (T)he person bringing the action must have a substantial present interest in the relief sought, such as there must exist not merely a theoretical question or controversy but a real or actual controversy, or at least the pipening seeds of such a controversy, and that a question has arisen affecting such right which ought to be decided in order to safeguard such right.'

The required interest of the plaintiff in declaratory judgment actions is normally personal in nature. It is no bar to standing, however, that the interest of the plaintiff is the same as that of the public in general. As was stated further in Zoercher v. Agler, supra:

'The rule contended for by appellants, that the plaintiff must show that he has sustained some injury to his personal or property rights, has been applied in the case of one who brings an action to enforce his private rights; but such a rule does not serve to prevent the bringing of an action which involves the establishment of public rights.' 202 Ind. 214, 222, 172 N.E. 186, 189.

In Zoercher, the taxpayers were unquestionably interested parties since the newly established local tax rate on their property had been modified by action of the State Tax Board, a form of control contended to be unconstitutional. The fixing of local tax rates was held to involve primarily public rather than private rights,...