Town of Windfall City v. State ex rel. Wood
| Decision Date | 25 May 1909 |
| Docket Number | 21,318 |
| Citation | 88 N.E. 505,172 Ind. 302 |
| Parties | Town of Windfall City et al. v. The State of Indiana, ex rel. Wood |
| Court | Indiana Supreme Court |
From Tipton Circuit Court; John P. Kemp, Special Judge.
Action by The State of Indiana, on the relation of George C. Wood against the Town of Windfall City and others. From a judgment for plaintiff, defendants appeal.
Reversed.
W. O Dean and L. B. Nash, for appellants.
George H. Gifford and Glen J. Gifford, for appellee.
Verified complaint by appellee, filed February 14, 1908, against appellants, alleging that appellant Town of Windfall City is an incorporated town in Tipton county, Indiana, and the other appellants are the trustees, representing the four wards of the town; that relator is the owner of certain described real estate in, and forming one of the corporation lines of, the town; that on December 18, 1907, he filed a petition in the office of the clerk of the town to have such real estate disannexed from the town; that on December 18, 1907, he caused a notice of the filing of the petition to be published in the Windfall Herald, and also the same notice to appear the following week in said Herald, that his petition would be presented to the board of trustees at the regular meeting January 6, 1908, at 7 o'clock p. m., at the office of such board, and sets out a copy of the notice, directed "To the Town of Windfall City, Indiana, and the Citizens Thereof." Said notice recites the fact of the filing of the petition, describes the real estate, gives notice of the time and place where it will be presented, when and "where any one aggrieved, or desiring to object, may appear and object." The complaint alleges that the regular meeting time of the board was on the evening of January 6, 1908, and that the regular meetings of the board are the first and third Monday evenings of each month; that the town board met on January 6, at its regular time and place, and has repeatedly met and transacted the business of the town at the regular time and place; that on each occasion of the meeting of the board relator has been present in person, or by agent or attorney, and requested the board to act upon the petition, and that it has "failed and refused to take any action upon said petition, or to determine the same in any way, and is still refusing to take action on said petition, or to determine the same." Prayer for a writ of mandate against defendants to show cause why they should not be required to pass upon and determine said petition. Upon this complaint an alternative writ of mandate issued against the trustees, as such board, commanding them at their next regular meeting, February 17, 1908, "to hear and determine the merits of said petition, and to take action thereon," or show cause, February 26, 1908, why this should not be done.
To the complaint and alternative writ a demurrer was addressed by the town, for want of sufficient facts, and a like demurrer by the trustees. Each of these demurrers was overruled, and exceptions reserved. On March 10, 1908, the town answered separately, and the four trustees jointly as follows: "As reasons for not acting upon said petition at the time it was brought before said board of trustees on January 6, 1908, [defendants allege] that the question as to whether the large amount of real estate described in said petition could and should be disannexed from said town was one of vital importance to the town, and the law under which the plaintiff is proceeding in this case being a new statute which was enacted at the last General Assembly of the State of Indiana, and there being some question with the members of the board as to the validity of said law, and the board not having seen nor examined said petition prior to the time it was presented to it on said date, January 6, 1908, and not being informed as to the advisability of disannexing said lands from said town, and not then having sufficient time and opportunity to examine and investigate the matter, said petition was placed on file and action on the same continued until January 20, 1908, which was the next regular meeting of said board, in order to have more time to investigate and examine into the matter; that one Richcreek and his wife had, prior to the filing of the petition herein, filed a petition with said board, praying for the disannexation of certain farm lands from said town of Windfall City, similar to plaintiff's petition, except as to the description of the lands, which petition was filed under and by virtue of the law under which plaintiff herein is proceeding; that said petition was acted upon and denied by the board on December 2, 1907, and Richcreek appealed to the Tipton Circuit Court, and the members of the board were expecting that said petition in the Richcreek case would be determined in said circuit court during the February term thereof, and hearing of plaintiff's petition was continued at said January meeting until the regular meeting of said board on March 2, 1908, in order that the Richcreek case might be determined before said board passed upon said petition at its March meeting, the board expecting to be largely governed in their action by the result of the Richcreek case; that the continuing of plaintiff's petition for hearing was in good faith, the board believing that it was the right and proper thing to do for the better interests of the town, for the reasons aforesaid, and desiring to act judiciously in the premises, and not to make any unnecessary costs to the town, and wanting to be as fully advised as possible in the premises before finally acting on said petition; that long after the hearing of said petition had been set for March 2, 1908, to wit, on February 15, 1908, defendants were served with notice of this proceeding by the sheriff of said county, and said trustees thought it right and proper to take no action until after this proceeding should be disposed of by the court, and for that reason said board did not take any action on said petition at the time set for the same, March 2, 1908. Demurrers for want of facts were sustained to these answers, and exceptions reserved. Appellants refused to plead further, and a judgment of peremptory mandate was ordered, commanding the board of trustees at its next regular meeting "to adjudge and determine upon the petition, with reference to the matters therein set out, as in its judgment is right and proper with reference to disannexing or retaining the land described in the petition, or stand in contempt."
Errors are assigned upon the ruling on the demurrers to the complaint and writ.
The petition for disannexation was filed under the act of 1907 (Acts 1907, p. 617, §§ 7, 9, §§ 8914, 8916 Burns 1908). The point is made...
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