State ex rel. Gary Taxpayers Assn v. Lake Superior Court

• Decision Date: 18 December 1947
• Docket Number: 28363.
• Citation: 76 N.E.2d 254,225 Ind. 478
• Parties: STATE ex rel. GARY TAXPAYERS ASS'N, Inc., et al. v. LAKE SUPERIOR COURT et al.
• Court: Indiana Supreme Court

76 N.E.2d 254

225 Ind. 478

STATE ex rel. GARY TAXPAYERS ASS'N, Inc., et al. v. LAKE SUPERIOR COURT et al.

No. 28363.

Supreme Court of Indiana

December 18, 1947

Albert H. Gavin and Gavit & Richardson, all of Gary, for appellant.

Gizella V. Stodola, of Hammond (Claude V. Ridgely, of Gary, of counsel), for appellee.

EMMERT Chief Justice.

This is an original action brought by the relators against the Lake Superior Court, Room One, Lake County, Indiana, and the judge thereof, for a writ of prohibition prohibiting the court from continuing to assume jurisdiction in a proceeding for the establishment of a conservancy district in and for Lake County, Indiana, and to mandate the judge thereof to grant a change of venue in said proceeding.

From the petition and the return thereto it appears that the City of Hammond, by ordinance duly enacted and in effect on April 30, 1947, authorized the institution of a proceeding in the Lake Circuit Court for the establishment of a conservancy district embracing all of Lake County, Indiana, pursuant to Chapter 239 of the 1947 Acts of the General Assembly of this state, the petition being filed May 14, 1947, in the office of the Clerk of the Lake Circuit Court. The City of Hammond filed bond as required by statute, and on June 12, 1947, the Lake Circuit Court found the petition insufficient in that it did not describe the territory to be included in said proposed conservancy district. On July 14 1947, the City of Hammond filed an amended petition. On July 15, 1947, the Lake Circuit Court examined the amended petition, found the same to be sufficient, and set the hearing on said petition for September 10, 1947, at 10:00 A M., and ordered notice thereon as required by statute. On September 10, 1947, the Lake Circuit Court found that due notice had been given, and various answers and objections by various parties having been filed on said date, the court set the same for hearing on September 18, 1947.

During the time these proceedings were being had in the Lake Circuit Court certain other proceedings were being had in Lake Superior Court, Room One, out of which grew the controversy involved in this original action. On the 8th day of July 1947, eight hundred and five (805) petitioners who were legal residents and freeholders of Lake County, Indiana, filed a petition in said Lake Superior Court, Room One, for the establishment of a conservancy district to be known as the 'Conservancy District of Lake County, Indiana,' and to include all of Lake County in the area of the district. On July 8th the judge of Lake Superior Court, Room One, found bond had been filed by petitioners as required by statute, that the court had jurisdiction of the subject-matter of the action, that the petition was sufficient, and set August 29, 1947, as the day for hearing on the petition, and ordered notice given pursuant to the statute. On the date for the hearing the court found due notice had been given and began the hearing of evidence. Before evidence was concluded the Gary Taxpayers Association, Inc., and Albert H. Gavit and Betty H. Gavit, relators herein, appeared specially and filed a plea in abatement, which plea, among other things, alleged the lack of jurisdiction of the court of the subject-matter of this proceeding. The City of Hammond filed a separate plea in abatement also alleging lack of jurisdiction of the court of the subject-matter, and the City of Gary joined in the plea in abatement filed by relators herein. All the pleas in abatement were overruled by the court and the hearing in the cause was continued until September 6th. On the same day relators, Albert H. Gavit and Betty H. Gavit and Gary Taxpayers Association, Inc., filed written answer and objections to the petition; and the City of Gary also filed written answer and objections to the petition. On September 6th said Superior Court resumed hearing and determined it had jurisdiction of the subject-matter and the parties. On the same date the City of Gary and relators herein filed separate affidavits for change of venue from the judge, which were both separately overruled.

Respondents' return suggests that relators' petition was insufficient for the reason 'certified copies of all pleadings, orders and entire entries pertaining to the subject-matter' are not set out or made exhibits to the petition as required by Rule 2-35 of this court. However, the petition and return do have as exhibits thereto certified copies of all pleadings, papers and court entries necessary for the determination of this original proceeding, and in view of the good faith effort made on the part of the petitioners to comply with the rule (Bryan v. Yoder, Ind.Sup. 1947, 71 N.E.2d 474), and especially in view of the importance of the determination of the jurisdictional matters involved in this controversy, we will determine the jurisdictional questions involved on the merits.

In construing Chapter 239 of the Acts of 1947, we will examine the entire Act to ascertain the intention of the legislature expressed on the issue involved in this proceeding. 2 Sutherland, Statutory Construction, p. 336, § 4703; Kryder v. State, 1938, 214 Ind. 419, 15 N.E.2d 386, 387; Chicago, I. & L. R. R. Co. v. Downey, 1937, 103 Ind.App. 672, 5 N.E.2d 656.

The word 'court' appears in various sections of Chapter 239, the relevant parts of the sections reading as follows:

'Sec. 2. * * *

"Court' shall mean the Court, as organized under the terms of this act, wherein the petition for the organization of the district was filed and heard.

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'Sec. 4. Proceedings for the establishment of a conservancy district shall be initiated by the filing of a petition in the office of the clerk of a circuit court serving a county containing territory within the proposed district, which petition shall have been signed by five hundred or more freeholders within the proposed district, or by a majority of the freeholders of any proposed district. Such a petition may be signed by railroads and other corporations owning lands.

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'Upon the filing of such petition the judge of the court in which such petition has been filed shall determine whether it bears the necessary signatures and complies with the requirements of this section as to form and content. No petition with the requisite signatures shall be declared null and void on account of alleged defects, but the court or the judge thereof in vacation in subsequent proceedings, may at any time permit the petition to be amended in form and substance to conform to the facts, by correcting any errors in the discription of the territory, or in any other particular. Such petition may be circulated in several counterparts, which may be considered as constituting a single petition.

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'Sec. 5. At the time of filing the petition, or at any time subsequent thereto and prior to the time of the hearing on said petition, a bond shall be filed by the petitions, with good and sufficient freehold sureties, payable to the State of Indiana, to be approved by the clerk of the circuit court, * * *.

'Sec. 6. Upon the determination of the judge of the court in which any such petition shall have been filed that the petition is sufficient, he shall cause notice thereof to be given to the judge of the circuit court, serving each county included in whole or in part within the proposed conservancy district. Thereafter the judges of each such circuit court shall sit together as a trial court to determine whether or not the conservancy district prayed for in such petition shall be established. In case of the inability to serve of the judge of any circuit, the chief justice of the supreme court upon application of any interested person and proper showing of need, shall assign a judge of any superior court from a county located within such circuit. However, if there is no such superior court, the judge or judges hearing the petition shall represent such circuit.

'* * * Except as otherwise hereinafter provided, such court shall have for all purposes of this act, original and exclusive jurisdiction coextensive with the boundaries and limits of the district or proposed district and of the lands and other property included in, or proposed to be included in, such district or affected by such district, without regard to the usual limits of its jurisdiction, and the issues involved in such petition shall be tried and the decision of the court thereon shall be subject to appeal as in other civil causes. * * *

'* * * In case the court consists of more than three judges, it may designate three of its members from three different circuits to preside over the court, hear matters coming before the court, and make determinations and decisions or findings and recommendations, as the rules of the court provide, with respect to any matters authorized by such rules, the disposition of which is visted in the court * * *. The concurrence of two of the three judges so designated shall be necessary for any action or determination thereby and it shall have, if so provided by the rules of the court, the same force and effect as though taken or made by the full court. All actions and determinations by the full court shall require the affirmative vote of a majority of the judges constituting the court. In all cases in which the judges are evenly divided that side with which the presiding judge votes shall prevail, except that in the event the court consists of two judges and they find themselves unable to agree on any question left to their decision, a judge of the circuit or superior court of some other county shall be designated by the chief justice of the supreme court of the state to sit and vote as a third member of the court until such question is...