Prunk v. Indianapolis Redevelopment Com'n of Dept. of Redevelopment of City of Indianapolis

• Decision Date: 27 June 1950
• Docket Number: No. 28509,28509
• Citation: 93 N.E.2d 171,228 Ind. 579
• Parties: PRUNK et al. v. INDIANAPOLIS REDEVELOPMENT COMMISSION OF DEPARTMENT OF REDEVELOPMENT OF CITY OF INDIANAPOLIS et al.
• Court: Indiana Supreme Court

Page 171

93 N.E.2d 171

228 Ind. 579

PRUNK et al. v. INDIANAPOLIS REDEVELOPMENT COMMISSION OF DEPARTMENT OF REDEVELOPMENT OF CITY OF INDIANAPOLIS et al.

No. 28509.

Supreme Court of Indiana.

June 27, 1950.

Seth S. Ward, Indianapolis, James C. Jay, Indianapolis, for appellant.

Ross, McCord, Ice & Miller, Harry T. Ice, R. Stanley Lawton, Robert D. Risch, all of Indianapolis, for appellee.

EMMERT, Chief Justice.

This appeal involves procedural rights under the 'Redevelopment Act of 1945,' hereafter referred to as the act, § 48-8501 et seq., Burns' 1949 Supplement, Acts 1945, Ch. 276. Appellee filed a motion to dismiss the appeal, and we deferred ruling thereon until after the cause was briefed on the merits, which has now been done.

The Indianapolis Redevelopment Commission on January 2, 1948, adopted a declaratory resolution declaring certain real estate owned by the appellants to be a blighted area, and that it would be of public utility and benefit to the city and its inhabitants to acquire and redevelop it in accordance with plans of the commission adopted pursuant to the act. The declaratory resolution was submitted to and approved by the Plan Commission of the City of Indianapolis, after which notice was given for a hearing on the preliminary resolution on April 7, 1948, as provided by § 14 of the act, § 48-8514, Burns' 1949 Supplement. The appellants filed separate remonstrances to the proceedings in which each alleged as follows: 'It will not be of public utility and benefit to acquire the aforedescribed area for the purpose of redevelopment as specified in said declaratory resolution. That the proposed plan of redevelopment will result in great and irreparable damage and hardship to this petitioner and such action is in contravention of the Constitution of the United States of America and is in contravention of the Constitution of the State of Indiana.'

The Indianapolis Redevelopment Commission then overruled each remonstrance, and declared that it would be of public utility and benefit to proceed with the plan of redevelopment as set forth in the declaratory resolution, and finally approved the same. Both appellants filed and perfected an appeal to the Superior Court of Marion County, in which they stated they appealed from the final action of the commissioners, and reserved all legal rights given by the laws of the State of Indiana.

During the hearing on the appeal, counsel for appellants made and entered of record the following motion: 'Comes now Pauline Prunk and Byron F. Prunk * * * and separately and severally dismiss their action solely but not the appeal in this case.'

The trial court after requesting appellants to clarify their action, made the folowing entry: 'Come again the parties by counsel, and it appearing that the appellants have heretofore dismissed their 'cause of action,' but not their 'appeal' and counsel for appellants in open court states that by 'cause of action,' he meant his 'remonstrance,' and the court feeling that when said 'remonstrance' is dismissed, nothing remains to be tried by this court; but inasmuch as appellants have reserved their 'appeal' and such action appearing ambiguous and contradictory, the court holds that said 'appeal' is not dismissed, and orders said appeal to be continued and proceed to trial by way of review.'

The court filed a special findings of fact and conclusions of law thereon. The seventh finding stated: 'The findings made by the Indianapolis Redevelopment Commission that it would be of public utility and benefit to proceed to acquire the blighted area described as Project B and with the redevelopment plan provided for therein, has a reasonable basis for support, and was supported by substantial evidence which the Indianapolis Redevelopment Commission had before it. It will be of public utility and benefit to acquire the blighted area described in Exhibit A attached hereto for the purpose of redevelopment under the Redevelopment Act of 1945.'

The conclusions of law are as follows: 'The law is with the appellees. The Indianapolis Redevelopment Commission has complied with all statutory procedural requirements. The action of the Indianapolis Redevelopment Commission in adopting Confirmatory Resolution One Project B was within its powers and the action taken by it was legally taken and should be sustained. The remonstrances of appellants should be overruled and judgment entered accordingly.'

We hold, under the authorities later discussed, that the trial court's ruling with reference to the dismissal of the remonstrance, and the retention of jurisdiction to 'proceed to trial by way of review,' was correct.

In State ex rel. Prunk v. Superior Court of Marion County, 1948, 226 Ind. 235, 236, 79 N.E.2d 215, 216, which involved an attempt to take a change of venue from Marion County by the present appellants, this court said: 'Said cause so pending in the Superior Court is a proceedings to review the official finding and order of the Indianapolis Redevelopment Commission * * *'.

This decision became and is the law of the case in subsequent proceedings and appeals. State ex rel. Joint County Park Board of Ripley, Dearborn and Decatur Counties, v. Verbarg, Ind.Sup., 1950, 91 N.E.2d 916, and authorities therein cited.

The appellees insist that § 15 of the act, § 48-8515, Burns' 1949 Replacement, limiting the right of appeal, is valid. This section limits the right of review by the Marion Superior Court to the question of the public utility and benefit in acquiring the blighted area in question for the purpose of redevelopment under the provisions of the act, and further provides that there shall be no appeal from the judgment of the trial court.

In Warren v. Indiana Telephone Co., 1940, 217 Ind. 93, 26 N.E.2d 399, this court held it was beyond the constitutional power of the legislature to prohibit a review by the courts of the findings of an administrative body, and neither could the legislature prohibit this court from exercising its constitutional right to review...