Taggart v. Claypool

• Decision Date: 26 May 1896
• Docket Number: 17,761
• Parties: Taggart, Auditor, et al. v. Claypool
• Court: Indiana Supreme Court

44 N.E. 18

145 Ind. 590

Taggart, Auditor, et al. v. Claypool

No. 17,761

Supreme Court of Indiana

May 26, 1896

From the Marion Circuit Court.

Reversed.

J. B Curtis, for appellants.

A. J Beveridge, for appellee.

OPINION

McCabe, J.

The appellee and another, whose death was suggested of record in the court below before judgment, sued the appellant, Taggart, as auditor, and the appellant, the city of Indianapolis, to enjoin each of them from extending certain described lands upon the tax duplicate of the county and city as city property.

It is shown that the threatened extension was about to be made by virtue of the annexation of certain contiguous territory to said city, which included seventy-five acres of unplatted farm land belonging to the plaintiffs. That such annexation was claimed by the defendants to have been effected by virtue of an ordinance adopted and passed by the common council of said city November 8, 1893, under and pursuant to the provisions of sections 37 and 38, of the charter of said city, approved March 6, 1891. Acts 1891, p. 137; R. S. 1894, sections 3808, 3809.

The circuit court overruled separate demurrers by each of the defendants to the complaint, assigning insufficiency of the facts stated therein to constitute a cause of action against each, and said defendants declining to plead over and standing on their demurrers, the court entered a decree, perpetually enjoining both defendants from entering said lands upon said duplicates for the purposes of city taxation, as prayed for in the complaint.

The right to tax the property for city purposes is not questioned on account of any formal or substantial defect in the ordinance of annexation, or for want of the observance of any legal requirements in the passage of the ordinance, either formal or substantial, but it is claimed that the defect is in the sections of the statute above referred to, constituting a part of the city charter.

The contention is that said sections are void because they violate the constitution of the State and the United States.

The first section above mentioned provides that "the common council shall have power, by ordinance, to declare and define the entire corporate boundaries of such city. * * * Such ordinance * * * may include contiguous territory, whether platted or not, not previously annexed. * * * Said common council may also, by separate ordinance, not purporting to define the entire boundaries of such city, annex contiguous territory, whether platted or not, to such city, and * * * shall be conclusive evidence * * * that the territory therein described was properly annexed and constitutes a part of such city, except as provided in the next section."

The next section provides, among other things, that "whenever such territory * * is unplatted ground, * * * an appeal may be taken from such annexation, by one or more resident freeholders, in the territory sought to be annexed, filing their remonstrance in writing against such annexation, together with a copy of such ordinance, in the circuit or superior courts of the county where such territory is situated; * * * such written remonstrance or complaint shall state the reason why such annexation ought not in justice to take place. * * * The court shall thereupon proceed to hear and determine such appeal without the intervention of a jury, and shall give judgment upon the question of such annexation according to the evidence which either party may introduce, relevant to the issue. If the court should be satisfied, upon the hearing that less than 75 per cent. of the resident freeholders of the territory sought to be annexed have remonstrated, and that the adding of such territory to the city will be for its interest and will cause no manifest injury to the persons owning real estate in the territory sought to be annexed, he shall so find, and said annexation shall take place. If the court shall be satisfied that 75 per cent. or more of the resident freeholders of the territory sought to be annexed have remonstrated, then such annexation shall not take place, unless the court shall find from the evidence that the prosperity of such city and territory will be materially retarded and the safety of the inhabitants and property thereof endangered without such annexation."

The complaint alleges that the plaintiffs, though owners of the unplatted ground in question, included in the territory annexed, were, and are, not residents within said territory, but were, and are, residents within the city of Indianapolis. It is contended, therefore, that as the right of appeal is given only to resident freeholders in the territory sought to be annexed, and the same right impliedly denied to owners of land in the territory who do not reside therein, they are denied the equal protection of the law, their property taken without due process of law, and that privileges and immunities are granted to such resident owners which are denied to the plaintiffs on the same terms.

It is urged, at great length and with much ability, that the sections are void because they violate section 23 of Article 1, of the State constitution, which provides that: "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens."

If we were to concede that the statute in question, giving the right of appeal to residents and in denying the same right to landowners not residing within the territory in question, is a violation of the constitutional provision quoted, it does not follow that the appellee's contention can be upheld that the whole of both sections of the act (the charter) are void. A statute may be unconstitutional in part and valid as to the residue. Clark v. Ellis, 2 Blackf. 8; Madison, etc., R. R. Co. v. Whiteneck, 8 Ind. 217; State v. Newton, 59 Ind. 173; Wallace v. Board, etc., 37 Ind. 383; Campbell v. Dwiggins, Treas., 83 Ind. 473; Ingerman v. Noblesville Tp., 90 Ind. 393; City of Indianapolis v. Bieler, 138 Ind. 30, 36 N.E. 857.

If the unconstitutional portions of a statute can be stricken out and still leave a complete statute, the unconstitutional portions must be regarded eliminated and the remainder of the statute must be enforced. State, ex rel., v. Blend, 121 Ind. 514, 23 N.E. 511; State, ex rel., v. Gorby, 122 Ind. 17, 23 N.E. 678.

The only part of the statute here in question, that can at all be regarded as in conflict with the constitutional provision quoted, is that part giving a right of appeal only to the resident freeholders. That part of the statute may be eliminated without in any way impairing the force of the provisions authorizing the common council to annex the territory. That part of the statute being eliminated, there is no discrimination between resident and non-resident owners of unplatted land within the territory to be annexed. They are all treated as the owners of platted ground within the territory to be annexed, namely, given no right of appeal...