Thorpe v. King

• Citation: 221 N.E.2d 895,248 Ind. 275
• Decision Date: 22 December 1966
• Docket Number: No. 30899,30899
• Parties: Straley THORPE et al., Appellants, v. Frank KING et al., Appellees.
• Court: Supreme Court of Indiana

Page 895

221 N.E.2d 895

248 Ind. 275

Straley THORPE et al., Appellants, v. Frank KING et al., Appellees.

No. 30899.

Supreme Court of Indiana.

Dec. 22, 1966.

Straley Thorpe, Hammond, for appellants.

Edmond J. Leeney, Galvin, Galvin & Leeney, Hammond, James R. Bielefeld, Carroll & Bielefeld, Crown Point, for appellees.

ARTERBURN, Chief Justice.

There being only four judges as members of this Supreme Court at the present time since the recent resignation of Achor, J., Myers and Rakestraw, JJ., are of the opinion that the decision of the trial court should be affirmed, while Arterburn, C. J., and Jackson, J. are of the opinion that the decision of the trial court should be reversed and the appellant granted a new trial.

The four judges participating being equally divided at the last term of court (Achor, J. not then participating), and being still equally divided at this term, the judgment of the trial court is affirmed without costs.

Acts 1881 (Spec.Sess.) ch. 38, § 654, p. 240, being Burns' Ind.Stat.Anno. § 2-3232 (1946 Repl.).

The separate opinions covering the material points in issue arising from this appeal are as follows:

RAKESTRAW, Judge (separate opinion).

This is an appeal from a judgment denying an injunction against the officials of the Town of Cedar Lake, Indiana, in which it was sought to have them enjoined from taking any action as such officials of said town. In the action, the appellant, Straley Thorpe, was the principal plaintiff and the principal witness in addition to being the attorney for the plaintiffs.

A petition to incorporate the Town of Cedar Lake was filed under Acts 1959, ch. 240, §§ 1-8, 10, p. 570, being §§ 48-101 to 48-109, Burns' 1963 Replacement. After the petition had been filed with the Commissioners of Lake County, a public hearing was set, and petitioners attempted to send notice by certified mail as provided by § 48-106. Apparently through some irregularity in handling by postal employees, an undetermined number of the residents of the area did not get their notice by certified mail. The appellants appeared before the Commissioners and filed a 'Petition of Remonstrators to Reject, Overrule and Dismiss the Petition to Incorporate the Town of Cedar Lake, Indiana.' In this petition, they set forth the irregularity in the mailing of notice along with certain other alleged irregularities. However, on September 21, 1964, the County Commissioners proceeded to adopt an ordinance incorporating the Town of Cedar Lake.

The appellants then filed an action in the Lake County Superior Court appealing the incorporation of the Town of Cedar Lake. On January 22, 1965, the court entered a judgment that the Board of County Commissioners of Lake County, Indiana, had acted erroneously in granting the petition to incorporate because of the defect of notice by certified mail. The court declared the ordinance incorporating the Town of Cedar Lake to be void.

Subsequently, the General Assembly passed a bill to legalize the incorporation. Chapter 283, page 779, of the Acts of 1965 reads as follows:

'All steps taken and all acts done in and about the incorporation of the Town of Cedar Lake in Lake County, Indiana, are deemed sufficient to incorporate the town, and the act of the Board of Commissioners of Lake County in incorporating the Town of Cedar Lake, be and the same are hereby legalized and declared to be legal and valid.'

After the above act was passed and signed by the Governor, the appellants filed the action below in the Lake Superior Court. That court entered a judgment denying an injunction on the ground that the curative act set forth above cured the defects in the incorporation. On appeal, the appellant urges that the judgment of the trial court was contrary to law in that the curative act was unconstitutional.

The appellants first argue that the provisions of Burns' § 48-106, supra, which require that notice be given by certified mail to residents is 'jurisdictional'; and that since such notice was not given by certified mail as required, the County Commissioners had no 'jurisdiction' over the persons of such residents. They further argue that since the County Commissioners had no such jurisdiction, it was beyond the power of the legislature to cure the defect by passing a curative statute. The appellants attempt to have the Board of County Commissioners considered as a court and to apply the concept of jurisdiction of the person in the same manner as it would be applied in a civil action between adverse parties.

In this, the appellants are in error. It has generally been considered that the creation of cities and towns or the alteration of the boundaries of cities and towns are legislative functions subject to control by the legislature. The individual or property owner does not have a vested interest in the maintenance of any particular taxing unit. Woerner, etc. v. City of Indianapolis (1961), 242 Ind. 253, 177 N.E.2d 34; Hodges v. Snyder (1923), 261 U.S. 600, 43 S.Ct. 435, 67 L.Ed. 819; Holen v. Minneapolis-St. Paul Metropolitan Airports Com'n. (1957), 250 Minn. 130, 84 N.W.2d 282; Taggart, Auditor, et al. v. Claypool (1896), 145 Ind. 590, 44 N.E. 18, 32 L.R.A. 586. It has often been held that there is no constitutional right to notice in cases involving the creation of municipal corporations or enlargement of the boundaries thereof. Territory v. Town of Jerome (1901), 7 Ariz. 320, 64 P. 417; People v. Town of Ontario (1906), 148 Cal. 625, 84 P. 205; State ex rel. Scott v. Lichte (1910), 226 Mo. 273, 126 S.W. 466; People v. Cardiff Irr. Dist. (1921), 51 Cal.App. 307, 197 P. 384; Firestone Tire & Rubber Co. v. Board of Supervisors (1958), 166 Cal.App.2d 519, 333 P.2d 378; cert. den. 361 U.S. 9, 80 S.Ct. 58, 4 L.Ed.2d 49; Kriz v. Klingensmith (1964), 176 Neb. 205, 125 N.W.2d 674.

It is clear that the constitution does not require that notice be given by certified mail. It was within the authority of the legislature to decide what notice should be given. And it has long been settled that the legislature may, by subsequent statute, correct any omission or irregularity in a proceeding, when the legislature might have dispensed with it by prior statute. Martin v. Ben Davis Conservancy Dist. (1958), 238 Ind. 502, 153 N.E.2d 125; State ex rel. Harris, etc. v. Mutschler, et al. (1953), 232 Ind. 580, 115 N.E.2d 206; Dreves, Inc. v. Oslo School Twp. of Elkhart County (1940), 217 Ind. 388, 28 N.E.2d 252, 128 A.L.R. 1405; Follett v. Sheldon, Treas. (1924), 195 Ind. 510, 144 N.E. 867; Seitz v. Mosier (1922), 192 Ind. 416, 136 N.E. 840; Board, etc. v. Spangler (1902), 159 Ind. 575, 65 N.E. 743; Schneck v. City of Jefferson (1898), 152 Ind. 204, 52 N.E. 212; Johnson v. The Board of Commissioners of Wells County et al. (1886), 107 Ind. 15, 8 N.E. 1.

For their position the appellants rely heavily upon Strosser v. The City of Fort Wayne (1885), 100 Ind. 443. There is language in that case to the effect that where notice is required by a statute, the absence of such notice is jurisdictional and such defect cannot be cured by a curative statute. However, this language was not necessary to the decision since in that case the common council was attempting to exercise authority given by statute to the county commissioners. Moreover, it is contrary to all later authority in this field and to logic. In the use of such language the court failed to make the well recognized distinction between public and private rights. ¹ To the extent that the language of that case is inconsistent with this opinion, it is expressly disapproved.

The appellants next urge that the curative statute is unconstitutional in that it overturns the judgment of the Lake Superior Court declaring the ordinance of incorporation to be void.

It is unquestioned that it is beyond the power of the legislature to directly interfere with a court judgment. However, this does not mean that the legislature cannot act retroactively after a controversy has been decided by a court.

Statutes may be retrospective in nature unless they impair contract rights or other private rights. Indiana Constitution Art. 1, § 24; 16A C.J.S. Constitutional Law § 418; County Dept. of Pub. Welfare v. Potthoff (1942), 220 Ind. 574, 44 N.E.2d 494; Johnson v. The Board of Commissioners of Wells County et al., supra. The fact that a court may have declared the law previous to the passage of a retrospective statute does not affect the authority of the legislature to enact such retrospective statute. The enactment of such a statute may constitutionally make inapplicable a judgment of a court where no contract rights or other private rights are involved. Thus it has been held that curative statutes may cure the invalid organization or creation of municipalities, even after an adjudication by a court that a corporation has no legal existence. Hodges v. Snyder, supra; Osann v. Purported Town of Portage (1961), 132 Ind.App. 695, 177 N.E.2d 666, trans. den.; Edmunds, Treasurer of the City of Terre Haute v. Gookins and Others (1865), 24 Ind. 169; 62 C.J.S. Municipal Corporations § 31.

Finally the appellants maintain that the curative act passed by the legislature was an attempt to create a municipal corporation by special act in violation of the constitutional prohibition against special legislation.

It has long been settled that curative acts are not within the constitutional prohibition against special legislation. State ex rel. Harris, etc. v. Mutschler, et al., supra; Yelton v. Plantz (1950), 228 Ind. 79, 89 N.E.2d 540; 50 Am.Jur. Statutes § 61, n. 1.

Curative statutes to that involved in this case have been held to be constitutional and to effectively remedy defects of procedure in the creation of municipal corporations. Stembel v. Bell (1903), 161 Ind. 323, 68 N.E. 589; Osann v. Purported Town of Portage, supra. In our opinion, the curative statute in this case was sufficient to remedy the defect of procedure upon which the appellants rely.

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