The City of South Bend v. Lewis

• Decision Date: 22 June 1894
• Docket Number: 17,173
• Parties: The City of South Bend et al. v. Lewis
• Court: Indiana Supreme Court

37 N.E. 986

138 Ind. 512

The City of South Bend et al. v. Lewis

No. 17,173

Supreme Court of Indiana

June 22, 1894

From the St. Joseph Circuit Court.

The judgment is reversed, with instructions to hold the record of the resolution conclusive evidence of such union or annexation.

J. G Orr and A. Anderson, for appellants.

L Hubbard, for appellee.

Dailey J. Howard, J., did not participate in this opinion.

OPINION

Dailey, J.

This was an action for injunction brought by Mary C. Lewis appellee, against the City of South Bend and the Town of Myler et al., in order to contest the validity of proceedings for the annexation of the Town of Myler to the City of South Bend. It is claimed by the appellee that the proceedings for annexation are defective in this, that the proposition to annex the Town of Myler to the City of South Bend was not voted for by a requisite majority of the voters of the City of South Bend. The facts were found specially by the judge of the circuit court, and the only error assigned is that the court erred in its conclusions of law.

The questions involved in this case have arisen under the act of February 16, 1857, for the union of cities and towns, being sections 3233 to 3242, Revised Statutes of 1881.

Section 1, of said act, provides that where an incorporated town and incorporated city adjoin each other they may be consolidated or united, provided a "majority of the qualified voters of the town and a majority of the qualified voters of the city shall vote in favor thereof, at elections to be held as hereinafter provided."

Section 2 provides for an agreement between the common council of the city and the trustees of the town as to the terms and conditions of the union, etc., and as to the day upon which "an election shall be held for the people of such town and city to vote upon the question" of such union, etc.

Section 3 provides for the publishing of said agreement for three weeks before "such election," etc.

Section 4 provides that "the election above provided for" shall be held at the time agreed on, at the same place where elections are usually held, and shall be governed by the same laws, etc.

Section 5 prescribes the form of ballots to be used, requiring those who vote in favor of the proposition to have the word "Union" on their tickets; those against, the words "No Union," etc.

Section 6 is as follows: "The inspectors and judges of the election shall report to the common council, and president and trustees, respectively, the result of such election. And the report of the inspectors and judges of the town election shall be entered on the records of the president and trustees, and a certified copy thereof delivered to the clerk of the city; and the report of the inspectors and judges of the city election shall be entered on the records of the common council, and a certified copy thereof delivered to the clerk of the town. And if a majority of the votes given in the town as well as a majority of the votes given in the city are in favor of union or annexation, then the president and trustees and the common council shall meet at the council chamber of the city council, and, by resolution, declare that the town is annexed to the city, or the two united, as the case may be, according to the agreement aforesaid. And such resolution shall be entered on the records of the city council, and such record, and certified copies thereof, shall be conclusive evidence of such union or annexation, and a copy of such resolution shall also be recorded in the recorder's office of the county where such city is situated, and copies of such record shall be good evidence in all courts."

The facts in this case are set forth in the special findings, and are briefly as follows: The town of Myler was a suburb of the City of South Bend, and on the 31st day of March, 1892, the common council of the city of South Bend and the president and board of trustees of the Town of Myler agreed upon the terms of union of said town to said city. The day agreed upon for an election was May 3, 1892, the day of the general city election in said city. The preliminary steps were all taken, and the law was fully complied with.

At the election held on May 3d in the city, 1,750 votes were cast in favor of the said proposition, and 237 votes were cast against the same. In the town 39 votes were cast in favor of the proposition, and 6 votes against it. The total number of votes cast for candidates at the city election was over 5,000.

On the 9th day of May, 1892, at a joint meeting of the trustees of the said Town of Myler, and the common council of the said city, in the council chamber of the said City of South Bend, a resolution was adopted declaring that the Town of Myler had been annexed to the City of South Bend.

On the 7th day of December, 1892, the appellee filed her complaint in the St. Joseph Circuit Court on behalf of herself and all of the other property owners in the Town of Myler, to declare said annexation proceedings void, and to enjoin the collection of city taxes. The only question presented in this case is, whether the proposition for annexation requires a majority of the votes cast for and against the particular proposition, or whether it requires an affirmative vote of a majority of all persons who voted for candidates at the city election held at the same time.

It is now well settled, both in England and in this country, that when an election is to be held at which a subject-matter is to be determined by a majority of the voters entitled to cast ballots thereat, those who absent themselves from such election or those who, though present, abstain from voting, are considered as acquiescing in the result declared by those who do vote, even though those voting may constitute a minority of those entitled to vote. McCrary Elections, section 173. People, ex rel., v. Warfield, 20 Ill. 159; Gillespie v. Palmer, 20 Wis. 544; Louisville, etc., R. R. Co. v. County Court of Davidson, 1 Sneed 637 (692); Angell & Ames Corp. (9th ed.), sections 499-500; St. Joseph Tp. v. Rogers, 83 U.S. 644, 16 Wall. 644, 21 L.Ed. 328; County of Cass v. Johnston, 95 U.S. 360, 24 L.Ed. 416 (369); Board of Supervisors Carroll County v. Smith, 4 S.Ct. Reporter, 539.

A careful examination of the cases will show that in every case the decision rests upon the construction placed upon the statutes under which the election is held. The statutes of the several States are different on the subject of elections. In some States the statutes require a "majority of the votes;" others "a majority of the voters voting," etc.

The case of the Board of Supervisors Carroll County v. Smith, supra, arose upon the construction to be placed on the words "two-thirds of the voters," in the constitution of Mississippi. The act referred to required the question of subscription or no subscription, to be submitted to the decision of the qualified voters of the county, city, or town, and if "two-thirds of the qualified voters" be in favor of the subscription the authorities are authorized to subscribe, etc. There were, on the day of election, 3,129 registered voters in the county, but only 1,280 of the voters voted at the election, of whom 918 voted in favor, and 362 against the proposition. The court said, on page 544: "The assent of two-thirds of the qualified voters of the county, at an election lawfully held for that purpose, to a proposed issue of municipal bonds, intended by that instrument, meant the vote of two-thirds of the qualified voters present, and voting at such election in its favor, as determined by the official return of the result. The words 'qualified voters' as used in the constitution must be taken * not those qualified and entitled to vote, but those qualified and actually voting. In that connection a voter is one who votes, not one who, although qualified to vote, does not vote."

When a question or an election is put to the people, and is made to depend upon the vote of a majority, there can be no other test of the number entitled to vote but the ballot. If, in fact, there be some or many who do not attend and exercise the privilege of voting, it must be presumed that they concur with the majority who do attend, if indeed they can be known at all to have an existence. Certainly it would be competent for the legislators to prescribe a different rule; but when they simply refer a question to the decision of a majority of the "voters of a county," it can not be understood that they mean anything more than those who see fit to exercise the privilege. Louisville, etc., R. R. Co. v. County Court of Davidson, supra, 1 Sneed 637, 62 Am. Dec. 424 (452).

In Southworth v. Palmyra, etc., R. R. Co., 2 Mich. 287, it is held that where a constitution requires that acts of incorporation shall have "the assent of at least two-thirds of each house," the word "house" means members present doing business--those forming a quorum--and not a majority of all the members elected.

In St. Joseph Tp. v. Rogers, supra, a statute of Illinois, by its 12th section, authorized any township along the line of a railroad named to subscribe to its stock.

But it was provided in the 13th section of the same act that no subscription should be made until notice had been given to the legal voters to meet for the purpose of voting on the matter: Provided, that where elections have already been held, and a majority of the legal voters of any township were in favor of a subscription, no further election should be necessary.

At an election held before the passage of this act, in St. Joseph township, only seventy-five persons voted, while in fact there were three hundred legal voters in that township.

Held that a majority of those voting was sufficient to...