The City of Delphi v. Startzman

• Decision Date: 29 December 1885
• Docket Number: 10,961
• Citation: 3 N.E. 937,104 Ind. 343
• Parties: The City of Delphi et al. v. Startzman et al
• Court: Indiana Supreme Court

3 N.E. 937

104 Ind. 343

The City of Delphi et al. v. Startzman et al

No. 10,961

Supreme Court of Indiana

December 29, 1885

From the Tippecanoe Circuit Court.

Judgment affirmed.

J Applegate and C. R. Pollard, for appellants.

J. A Sims, G. R. Eldridge, L. B. Sims, M. Winfield, C. E. Taber J. R. Coffroth and T. A. Stuart, for appellees.

OPINION

Elliott, J.

The material allegations of the appellees' complaint are these: The city of Delphi is a municipal corporation organized under the general law for the incorporation of cities; the appellees are owners of real estate in the town of South Delphi; the city of Delphi has attempted by resolution of the common council to annex the territory within the limits of the town of South Delphi, and has levied taxes against the property of the appellees; the territory sought to be annexed is not contiguous to the city, but is separated by intermediate land, not platted; the appellees have not consented to such annexation, and the plat of the town of South Delphi has never been acknowledged or recorded.

The complaint avers that the suit is brought on behalf of the plaintiffs, as well as of all other property-owners in the territory sought to be annexed, and appellants' counsel argue that the complaint is bad because one or more taxpayers can not maintain such a suit. We deem it only necessary to say of this position, that it is quite clear to our minds that one or more citizens of a territory sought to be annexed to a city may maintain a suit to prevent the consummation of an attempted illegal annexation. The question is not simply one of relief from taxation, but the question is as to the right to compulsorily change the property of the citizens from the territorial limits of one political corporation into those of another and different corporation. It is, in fact, a question as to the right to supplant one local government by another, and such a question affects the citizens of the entire locality sought to be annexed to a city.

We have little doubt that there are cases in which property-owners would be estopped from questioning the validity of the existence of the territorial limits of a municipal corporation. There are cases in which corporate boundaries may be extended without direct legislation or express contract. Strosser v. City of Fort Wayne, 100 Ind. 443, vide authorities cited, p. 452. There are, however, no facts stated in the complaint from which it can be inferred that any right was waived by the appellees, nor are there any facts stated showing that any action was taken by the appellant on the faith of an acquiescence in the attempted annexation. If facts had been alleged showing that the city had acted upon the faith of the appellees' acquiescence, and that serious loss would result from permitting them to change position, the objections to the complaint might, perhaps, have been well founded.

We agree with appellant's counsel that where only a natural stream not navigable intervenes between the territory sought to be annexed and the corporate boundary, it would not constitute a barrier to the extension of the corporate limits over territory platted into lots, but this does not meet the question here, for the complaint avers that there were unplatted lands between the limits of the city and the territory sought to be annexed, and gives the names of the owners. The appellant's counsel mistake the real question here, for they argue with much earnestness in favor of the wisdom and policy of extending the limits of cities, and refer us to the cases of Blanchard v Bissell, 11 Ohio St. 96; Powers v. Commissioners, etc., 8 Ohio St. 285. The question is, not as to the policy of making such annexations, but as to the method of procedure. We have a positive statute prescribing what method shall be pursued, and that prescribed must be adopted and no other. Strosser v. City of Fort Wayne, supra, authorities cited. Our decisions have uniformly declared that in such a case as this (that is, where the territory is not platted,) the city must petition the board of county commissioners and secure an order from that body. Taylor v. City...