Paul v. The Town of Walkerton

• Decision Date: 24 May 1898
• Docket Number: 18,358
• Citation: 50 N.E. 725,150 Ind. 565
• Parties: Paul v. The Town of Walkerton
• Court: Indiana Supreme Court

50 N.E. 725

150 Ind. 565

Paul v. The Town of Walkerton

No. 18,358

Supreme Court of Indiana

May 24, 1898

From the St. Joseph Circuit Court.

Reversed.

Jacob D. Henderson, Stuart McKibbin and Francis M. Jackson, for appellant

Walter Funk and A. L. Brick, for appellee.

Monks J. Howard, J., took no part in the decision of this cause.

OPINION

Monks J.

This proceeding was brought before the board of commissioners of St. Joseph county, under sections 4426-4427, Burns' R. S. 1894 (3389-3390, Horner's R. S. 1897), to annex certain unplatted territory to the town of Walkerton. Appellant appeared before the board and filed a remonstrance. A trial of said cause resulted in a finding and judgment by the board that said territory be annexed. Appellant appealed to the circuit court, where the cause was heard by a jury, and a verdict returned against appellant by direction of the court, and over a motion for a new trial, judgment was rendered that said territory be annexed.

The errors assigned and not waived call in question the sufficiency of the petition to annex said territory, and the action of the court in overruling appellant's motion for a new trial.

The petition sets forth the following as the reasons for asking for such annexation: "First. That the inhabitants of said territory and the persons who own the same enjoy all or many of the privileges of living within the said town, without paying any taxes therefor, although their lands are largely increased in value by reason of their proximity to the said town; that much of said territory is thickly settled and built up with homes and valuable improvements and railroad tracks, and that they have derived great income and benefit from the said town and have become very valuable by reason of adjoining the said town; that said territory requires police surveillance which can be better secured by a municipal control; that a highway passes through portions of such territory on which there is much travel, and requiring by reason thereof to be kept in better order than at present kept in; that there are present, streets in the said town that have no outlet, but end at the corporate limits, as now existing, and cannot be extended through any of said territory where needed, and none can be procured, however much they may be needed by the public, and however much they may be of public utility and benefit. Second. That the present limits of the town of Walkerton are in an irregular shape, and that the annexation of the proposed lands will make the limits of the said town more regular. That one reason for annexing this territory is to make the plat of the said town uniform, regular for description upon the tax duplicates of the said county. Third. That in view of all the facts set forth and that the inhabitants of the said tract of land enjoy the benefit of living within the said corporation, and having been gaining revenues therefrom, and have and enjoy valuable property and improvements thereon, and are at the same time exempt from the burden and costs of maintaining the town government while enjoying its privileges and advantages, and the increase of the value of the real estate by reason of its proximity to the said town, and also that some of the inhabitants and occupants of the said territory proposed to be annexed, are now reaping advantages from the said town, without bearing any of its burdens in the way of furnishing the said town with railroad conveyance and railroad facilities, and the fact of the town having been their patrons for fifteen years or more, and for other reasons and things, and that they have full and free use of the school and the police and fire departments of the said town, without bearing any of the burdens of it, and also of the streets of the said town."

The petition shows that many persons in said territory have been receiving the benefits and advantages of the town without bearing their share of its burdens and that public interests require that said territory be annexed, and that it is just and equitable and for the public good that said petition be granted. Said petition is clearly sufficient under the decisions of this court. Elston v. Board of Trustees of Crawfordsville, 20 Ind. 272; Catterlin v. City of Frankfort, 87 Ind. 45, 52-53; Chandler v. City of Kokomo, 137 Ind. 295, 36 N.E. 847.

The motion for a new trial assigned a number of reasons why the same should be granted, a part of which relate to the exclusion of evidence offered by appellant, and a part to the giving and refusal to give instructions. Among the causes assigned for a new trial were the following: That the court erred in directing the jury to return a verdict in favor of the appellee, and that the verdict of the jury was contrary to law, and contrary to the evidence. The only evidence given by appellee at the trial of said cause was as to the regularity of the proceedings before the board of commissioners. No evidence was given to support or prove any of the reasons set forth in the petition for annexation, or any allegation contained in said petition, except that said territory was contiguous to said town, and that the same was unplatted. The court also excluded all evidence in support of the remonstrance. It is stated in the briefs that the trial court directed the verdict of the jury, and excluded the evidence offered by appellant, upon the theory that under the law as it is administered in this State, the annexation of territory to a town or city is a legislative and not a judicial function; and that the act of the board of commissioners in granting the prayer of a petition for annexation or refusing the same, is one of legislative discretion; and that for that reason it was not proper to give any evidence on the trial in the circuit court, either to sustain or contradict the grounds set forth in the petition for annexation.

The legislature in this State has provided by general laws for the incorporation of towns and cities, and for the annexation of contiguous territory to the same when incorporated. The power to hear and determine applications for the incorporation of towns and cities, and for the annexation of contiguous unplatted territory has been vested in the boards of commissioners, and, on appeal from said boards, in the courts.

Counsel for appellee insist that the enlargement of municipal bodies is a political question to be determined by the legislature, and not judicial to be determined by the courts, and that while the legislature may, by general laws, confer such power upon boards of commissioners, as has been done in this State, it cannot confer upon courts the power to adjudge or decree the annexation of contiguous territory to a municipality, for the reason that under our constitution legislative power cannot be delegated to the courts.

It is true that the power to create, enlarge, and regulate municipal corporations is a legislative power. But general laws authorizing the common councils of cities, and the boards of trustees of towns by resolution, without notice to anyone, to annex contiguous territory which has been platted into lots and the plat recorded, have been upheld. Mayor, etc., v. Weems, 5 Ind. 547, 549; Elston v. Board of Trustees of Crawfordsville, supra, 275; City of Evansville v. Page, 23 Ind. 525; Edmunds v. Gookins, 24 Ind. 169; Taylor v. City of Fort Wayne, 47 Ind. 274, 283; Stilz v. City of Indianapolis, 55 Ind. 515; City of Indianapolis v. Patterson, 112 Ind. 344, 347, 14 N.E. 551, and cases cited; Collins v. City of New Albany, 59 Ind. 396; Mullikin v. City of Bloomington, 72 Ind. 161; Strosser v. City of Ft. Wayne, 100 Ind. 443, 446; Glover v. City of Terre Haute, 129 Ind. 593, 29 N.E. 412. See, also, Tilford v. City of Olathe, 44 Kan. 721, 25 P. 223; City of Emporia v. Smith, 42 Kan. 433, 22 P. 616; Kelly v. Meeks, 87 Mo. 396; Copeland v. City of St. Joseph, 126 Mo. 417, 29 S.W. 281; Blanchard v. Bissell, 11 Ohio St. 96; 1 Dillon on Municipal Corp. (4th ed.), sections 183, 185; 1 Beach on Pub. Corp., sections 399, 406, 408.

General laws, providing the conditions upon which contiguous territory can be annexed, and the mode of procedure, and vesting the power in boards of commissioners and courts to hear and determine the same and order or refuse such annexation, have also been, as we think, correctly upheld. City of Wahoo v. Dickinson, 23 Neb. 426, 36 N.W. 813; City of Seward v. Conroy, 33 Neb. 430, 50 N.W. 329; City of Wahoo v. Tharp, 45 Neb. 563, 63 N.W. 840; Callen v. Junction City, 43 Kan. 627, 23 P. 652; Callen v. Junction City, 41 Kan. 466, 21 P. 647; Steele v. City of Newton, 41 Kan. 512, 21 P. 644; Hurla v. Kansas City, 46 Kan. 738, 27 P. 143; City of Burlington v. Leebrick, 43 Iowa 252; Kayser v. Trustees of Bremen, 16 Mo. 881; State, ex rel., v. Weatherby, 45 Mo. 17; State, ex rel., v. Wilcox, 45 Mo. 458; Lammert v. Lidwell, 62 Mo. 188, 21 Am. Rep. 411; Blanchard v. Bissell, supra; Gunter v. Fayetteville, 56 Ark. 202, 19 S.W. 577; Vogel v. Little Rock, 55 Ark. 609, 19 S.W. 13; Vestal v. Little Rock, 54 Ark. 321, 15 S.W. 891; Foreman v. Town of Marianna, 43 Ark. 324; Dodson v. Mayor, etc., 33 Ark. 508; Forsythe v. City of Hammond, 68 F. 774; 1 Dillon on Municipal Corp., supra; 1 Beach on Pub. Corp., supra.

The decisions of the courts upon this question are not in harmony, and among the cases cited as holding the contrary doctrine, are City of Galesburg v. Hawkinson, 75 Ill. 152; State v. Simons, 32 Minn. 540, 21 N.W. 750.

After the adoption of our present constitution, in 1851, and the enactment of statutes concerning annexation to cities and towns of unplatted territory contiguous thereto by proceedings before the boards of commissioners, appeals were taken from boards of commissioners in such cases ...