Pippenger v. City of Mishawaka

• Decision Date: 25 October 1949
• Docket Number: 17881.
• Citation: 88 N.E.2d 168,119 Ind.App. 397
• Parties: PIPPENGER et al. v. CITY OF MISHAWAKA et al.
• Court: Indiana Appellate Court

88 N.E.2d 168

119 Ind.App. 397

PIPPENGER et al. v. CITY OF MISHAWAKA et al.

No. 17881.

Appellate Court of Indiana, in Banc.

October 25, 1949

Charles Davis, Mishawaka, for appellants.

Vernon J. Freed, Mishawaka, Attorney for City of Mishawaka, L. C. Chapleau,South Bend, G. A. Farabaugh, South Bend Farabaugh, Pettengill, Chapleau & Roper, South Bend, Attys for New York Central Railroad Company, appellees.

CRUMPACKER, Judge.

The trial court sustained a demurrer to the appellants' complaint and upon their refusal to plead over entered judgment against them. Alleged error in such ruling presents the only question involved in this appeal.

The complaint alleges in substance that the appellants are residents and taxpayers of the city of Mishawaka, Indiana, and as such have the right to and do use the public streets of said city. That on the 4th day of December, 1944, said city, acting through its Board of Public Works, hereinafter called the board entered into a written contract with the appellee, New York Central Railroad Company, hereinafter called the railroad whereby it agreed with the railroad to vacate and close, 'in a valid and legal manner,' that part of ten public streets in said city where the same cross the railroad's main line right of way without cost to said railroad and without assessing its property for any benefits derived from the vacation and closing of said streets. That thereafter, pursuant to said agreement, such proceedings were had by said board as resulted in an order formally vacating nine of the streets specified insofar as they are in common with the railroad's right of way. That in further pursuance to said agreement said board vacated said streets without cost to the railroad and refused to assess its property for the benefits that resulted therefrom. That by reason of such acts by the board, all in pursuance to said unlawful contract, the plaintiffs (appellants) and others similarly situated, have been deprived of the use of that part of said streets so vacated. They ask that 'all of the proceedings taken by said board, pursuant to its unlawful agreement with said railroad, be declared void and of no effect or purpose whatever and that the defendants (appellees) be enjoined from further obstructing said streets.'

In general the appellees' position, in support of their demurrer to the foregoing complaint, may be summarized as follows: The contract, which the complaint characterizes as unlawful, shows on its face that it is a valid contract in that it is inoperative unless the Board of Public Works of the city of Mishawaka first succeeds in vacating the streets involved in a 'valid and legal manner.' That the term 'valid and legal manner' implies a bona fide hearing and determination of all issues including the desirability of such action from the public's standpoint after considering remonstrances, the award of damages and the assessment of benefits and costs. That the legislature has vested in said board the exclusive control of the streets in said city with power to vacate the same and, to implement such power, has prescribed a statutory procedure therefor. That in the absence of an allegation to the contrary, and there is none, it must be assumed that the board complied with the statute. That having done so the motives and reasons which prompted the board in vacating the streets in question cannot be made the subject of judicial investigation in the absence of fraud and none is alleged.

It is true that ordinarily the motives which prompted a municipality to vacate a street cannot be made the subject of judicial investigation. Windle v. City of Valparaiso, 1916, 62 Ind.App. 342, 113 N.E. 429; City of Indianapolis v. Maag, 1915, 57 Ind.App. 493, 107 N.E. 529. The rule is otherwise however when the court is called upon to determine whether or not such action was prompted through fraud. Under such circumstances a judicial investigation is proper and constitutes a direct attack on the vacation order, Burridge v. City of Mishawaka, 1948, 225 Ind. 613, 77 N.E.2d 297, and it remains such even though injunctive relief is sought as an ancillary remedy. Windle v. City of Valparaiso, supra.

As we view the complaint there is no effort...