Vesenmeir v. City of Aurora

• Decision Date: 01 December 1953
• Docket Number: No. 29091,29091
• Citation: 115 N.E.2d 734,232 Ind. 628
• Parties: VESENMEIR et al. v. CITY OF AURORA et al.
• Court: Indiana Supreme Court

Page 734

115 N.E.2d 734

232 Ind. 628

VESENMEIR et al. v. CITY OF AURORA et al.

No. 29091.

Supreme Court of Indiana.

Dec. 1, 1953.

L. E. Davies, Aurora, McManamon & McManamon, Lawrenceburg, Paul V. Wycoff, Batesville, for appellants.

Hartell F. Denmure, Aurora, for appellee.

DRAPER, Chief Judge.

This is an appeal from a judgment dismissing a remonstrance filed in the lower court against the annexation of certain territory to the city of Aurora, Indiana, and taxing costs against the remonstrators.

On June 16, 1952, the Common Council of the city of Aurora adopted ordinance No. 363 redefining the corporate boundaries of the city of Aurora, thereby including certain territory sought to be annexed. See Burns' 1950 Repl. § 48-701.

On October 6, 1952, ordinance No. 375 was passed by the City Council reducing the territory sought to be annexed and repealing ordinance No. 363.

On October 20, 1952, ordinance No. 377 was passed. It was the same as 375 except that it corrected the description of the boundary line as set out in 375 and it specifically repealed both 363 and 375.

On July 25, 1952, the appellants filed timely remonstrance to 363 pursuant to the provisions of Burns' 1950 Repl. § 48-702. Remonstrances were also filed to 375 and 377. So far as we are advised those remonstrances are still pending in the court below. The judgment appealed from was rendered in the matter of the remonstrance filed to 363. By way of answer to that remonstrance, the appellee city alleged the passage and publication of 375 and 377; alleged that because of their passage the issues presented by the remonstrance to 363 had become moot and prayed that said remonstrance be dismissed.

The case was heard on the pleadings and a stipulation of facts, and the court found and adjudged that the real controversy had been removed by the repeal of ordinance No. 363; that there was no matter before the court upon which the remonstrance could be considered; and that said remonstrance should abate and be dismissed. The appellants' motion to modify the judgment and their motion for new trial were each overruled, and this appeal was perfected.

The appellants take the position that: (1) a city has no power at any time to amend or repeal an annexation ordinance which would have the effect of reducing the amount of territory from that originally defined, and (2) even if the city had such power, it would be suspended pending appeal to the circuit court.

Burns' 1940 Repl. § 48-702, provides that during the time that an appeal may be taken to the circuit court, and pending such appeal, the territory sought to be annexed shall not be deemed a part of the annexing city. The territory involved has, therefore, never become a part of the city of Aurora, and so the question before us concerns annexation only and no question involving the right of the city to disannex territory by way of an ordinance is involved in this case.

It is true that doubtful claims to power, as well as any uncertainty or ambiguity in the terms used by the legislature are resolved against the corporation. Pittsburgh, etc., R. W. Co. v. Town of Crown Point, 1896, 146 Ind. 421, 45 N.E. 587, 35 L.R.A. 684; Pittsburgh, etc., R. Co. v. City of Anderson, 1911, 176 Ind. 16, 95 N.E. 363. It is further true that a legislative scheme has been provided for the disannexation of territory which has already become a part of a municipal corporation. But we can find in that fact no evidence of a legislative intent to forbid the repeal or modification of an annexation ordinance which has not yet become effective and under which the status of the territory involved has remained unchanged.

As a general rule a municipality which has been given the power to enact ordinances has, as a necessary incident thereto and without any express authorization in the statute, the power to modify or repeal such ordinances unless the power so to do is restricted in the law conferring it. The power is subject to the limitation that the repeal or change cannot be made so as to affect any vested rights lawfully acquired under the ordinance sought to be modified or repealed. Welch v. Bowen, 1885, 103 Ind. 252, 2 N.E. 722; Lowe v. McKnight, 1931, 202 Ind. 565, 174 N.E. 424; Terre Haute and Logansport Railroad Co. v. City of South Bend, 1896, 146 Ind. 239, 45 N.E. 324; City of Michigan City v. Brossman, 1938, 105 Ind.App. 259, 11 N.E.2d 538; Mahuron v. City of Salem, 1950, 120 Ind.App. 247, 91 N.E.2d 648; 37 Am.Jur., Municipal Corporations, § 197, p. 834; 62 C.J.S., Municipal Corporations, § 435b, p. 835. The rule does not apply where the ordinance has been enacted under a narrow, limited grant of authority to do a particular designated thing in the manner and at the time fixed by the legislature, and which excludes the implication that the council was given any further authority over the subject than to do the one act. Simpson v. State ex rel., 1913, 179 Ind. 196, 99 N.E. 980; 62 C.J.S., Municipal Corporations, § 435b, p. 835.

We find no restriction of the power to modify or repeal ordinance 363 in the law conferring the authority to pass it, and there is no serious contention that repeal would affect any vested rights lawfully acquired thereunder. Furthermore, it is apparent on the face of § 48-701 that the authority of the council to pass ordinances thereunder does not come within the limitation pointed out in Simpson v. State ex rel., supra. It would, therefore, seem, for aught yet appearing, that the Common Council had full authority to repeal 363.

It is asserted, however, that the filing of the remonstrance in the circuit court effectively and completely transferred jurisdiction to the circuit court where it must remain exclusively until that court has rendered a final judgment on the question of annexation, or in other words, that pending the decision of the circuit court, the city was without power to pass further ordinances which could be effective to repeal the first, and here the appellants rely on Taylor v. City of Fort Wayne, 1874, 47 Ind. 274.

The case at bar is entirely unlike the case relied upon. In that case a proceeding had been instituted before the board of county commissioners which had for its purpose the incorporation of a town. The city of Fort Wayne appeared and became a party to the proceedings. During the pendency of the proceedings before the board of county commissioners the common council passed a resolution annexing a large part of the same territory to the city of Fort Wayne. Relying upon the rule that when there are two tribunals possessing concurrent and complete jurisdiction of a subject matter the jurisdiction becomes exclusive in the one before which proceedings are first instituted and which thus acquires jurisdiction of the subject matter, it was held that the jurisdiction of the county commissioners could not be ousted by the adverse action of the city council.

In that case, unlike this one, two authorities were claiming the right to occupy the same space at the same time. In this case there was no concurrent jurisdiction in the court and the council. A proceeding looking to the annexation of property could not be instituted before the court. It could only be instituted by the common council. The court had only the jurisdiction conferred by statute which was in the nature of an appellate jurisdiction which it could assume and exercise only within the provision of the statute. We find nothing in Taylor v. The City of Fort Wayne, supra, nor in City of Hobart v. State ex rel. Roper, 1926, 198 Ind. 574, 154 N.E. 384, upon which appellants also rely, which supports the proposition asserted.

Relying on Burns' 1946 Repl. § 2-901, and the cases of State ex rel. Hurd v. Davis, 1949, 227 Ind. 93, 84 N.E.2d 181, and Yelton v. Plantz, 1948, 226 Ind. 155, 77 N.E.2d 895, the appellants insist the court erred in entering a judgment that the remonstrance should be dismissed, it being their position that instead a final judgment should have been entered to the effect that the proposed annexation under 363 should not take place. The appellants regard the form of the judgment as important in the light of that portion of § 48-702 which provides that: 'In case the decision is adverse to such annexation, no further annexation proceedings for such territory shall be lawful for two (2) years after the rendition of such judgment.'

Sec. 2-901, supra, enumerates the circumstances under which a civil action may be dismissed without prejudice. The Plantz case was an action brought by the plaintiff to enjoin the performance of a contract. The Davis case was an original action involving a petition filed by the relator to be declared an heir and devisee of a deceased person.

Sec. 2-901, supra, is § 433 of the Civil Code, Acts 1881, ch. 38. The case at bar is a special proceeding to which the rule of the code of civil procedure does not apply in the particular under consideration. This is not a matter wherein the appellants asserted a cause of action which they were undertaking to pursue. The remonstrance here asserts a defense--not a cause of action. This proceeding is in the nature of an appeal and is so designated by § 48-702, supra. The effect of the judgment below was to dismiss the appeal before final judgment had been rendered. Isley v. City of Attica, 1915, 59 Ind.App. 694, 109 N.E. 918.

As above stated, the judgment in this case amounted to a dismissal of appellants' appeal to the circuit court. Where the real controversy involved in an appeal has been removed by the repeal of an ordinance or statute, and the question has, therefore, become moot the appeal will be dismissed. Riley v. Bell, 1915, 184 Ind. 110, 109 N.E. 843; Bullock v. Jameson, 1915, 183 Ind. 81, 108 N.E. 231; Keller, Mayor, v. Rewers, 1921, 189 Ind. 339, 127 N.E. 149; City of Bloomington v. Board of Com'rs, 1951, 229 Ind. 419, 99 N.E.2d 79; and see Mahuron v. City of Salem, supra.

The effect of sustaining appellants...