Pittsburg, C., C. & St. L. Ry. Co. v. City of Anderson

• Decision Date: 06 June 1911
• Docket Number: No. 21,911.,21,911.
• Citation: 176 Ind. 16,95 N.E. 363
• Court: Indiana Supreme Court
• Parties: PITTSBURG, C., C. & ST. L. RY. CO. v. CITY OF ANDERSON.

176 Ind. 16

95 N.E. 363

PITTSBURG, C., C. & ST. L. RY. CO.

v.CITY OF ANDERSON.

No. 21,911.

Supreme Court of Indiana.

June 6, 1911.

Appeal from Circuit Court, Madison County; J. F. McClure, Judge.

Action by the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company against the City of Anderson. From the judgment, plaintiff appeals. Affirmed.

Transferred from the Appellate Court under section 1405, Burns' Ann. St. 1908.

S. O. Pickens and Walker & Foster, for appellant. Ryan & Ryan, for appellee.

MONKS, J.

This action was brought by appellant to recover money paid to appellee as taxes on appellant's right of way owned by it in fee simple across certain territory alleged to have been “disannexed at the time said taxes were levied and collected.” Appellee's demurrer to the complaint for want of facts was sustained, and, appellant failing and refusing to plead further, judgment was rendered against it.

The only error assigned calls in question the action of the court in sustaining said demurrer. The question to be determined is whether or not that part of appellant's right of way upon which said taxes were assessed and collected was legally disannexed from the city of Anderson. If it was, the court erred in sustaining said demurrer, and the judgment must be reversed; if not, the judgment must be affirmed.

It is claimed by appellant that said territory was disannexed in 1896 by the common council of said city under the provisions of section 4230, Burns 1901; section 3248, R. S. 1881; Acts 1877, p. 22. Said section reads as follows: “The common council of any city or the board of trustees of any incorporated town of this state is hereby authorized and empowered, at any regular meeting of the same, on the application of any owner of any suburban lot or tract of land not laid out in lots, by a two-thirds vote of such common council or board of trustees, so to modify the boundaries of such city or incorporated town, as to exclude therefrom such lots or tracts of land, upon such terms as such common council or board of trustees may impose.”

[1] It is settled that the enlarging or contraction of the boundaries of municipal corporations is a legislative function, which may be exercised by the General Assembly without the consent and against the remonstrance of those interested. Woolverton v. Town of Albany, 152 Ind. 77, 78, 79, 52 N. E. 455, and cases cited.

[2] In this state municipal corporations possess and can exercise such powers only as...