Wiley v. Corp. of Bluffton

• Decision Date: 25 May 1887
• Citation: 12 N.E. 165,111 Ind. 152
• Parties: Wiley v. Corporation of Bluffton.
• Court: Indiana Supreme Court

111 Ind. 152

12 N.E. 165

Wiley

v.Corporation of Bluffton.

Supreme Court of Indiana.

May 25, 1887.

Appeal from circuit court, Wells county.Taylor & Morris, for appellant. Dailey & Mock, Claypoole & Ketcham, and Asa Iglehart, for appellee.

Howk, J.

This cause was submitted to the trial court as an agreed case, upon an agreed statement of facts made out and signed by the parties, under the provisions of section 553, Rev. St. 1881. Thereupon the court found for the appellee, the defendant below. Over appellant's exception to its finding, the trial court adjudged that he take nothing by his suit, and that appellee recover of him its costs in this action expended. Error is assigned here by appellant, the plaintiff below, upon the finding of the trial court against him upon the agreed statement of facts.

The facts agreed upon by the parties to this suit were substantially as follows: “ First. The town of Bluffton was incorporated by a special act of the legislature approved February 12, 1851, and has never surrendered its special charter, nor organized under the general law. Second. This charter was amended by the act of February 15, 1873, and, since the passage of that act, the corporation of Bluffton has claimed the benefit of its provisions, and has been exercising the powers conferred by it. Both said acts are hereby made part of the record without being formally set out. Third. Before the passage of that act, the corporation boundaries of the town of Bluffton were as indicated by the double pencil lines on the map filed herewith, and made part of this agreement. By that act the boundaries of said town were extended so as to include all of section four, except that part lying north-east of the Wabash river indicated on said map. Fourth. Since the passage of that act, the defendant has been exercising corporate jurisdiction over all said territory, and has levied taxes for corporation purposes on all the lands embraced within the same, basing her claim of right so to do upon said acts. Fifth. The lands described in the complaint are and were the property of the plaintiff, as stated in the complaint, and were not included within the corporate limits of the town of Bluffton prior to the passage of said act of February 15, 1873, but were added thereto by said act. The taxes mentioned in said complaint were levied on the lands therein described by the defendant, and were paid by the plaintiff under protest, as stated in the complaint. Said lands have never been laid off into lots, streets, or alleys, excepting that, since said taxes were levied, the plaintiff laid off twelve lots, with streets on the north-west corner of the lands described in the complaint, [said plat, including streets, is 499 feet by 283 feet, containing one acre, as shown on said map,] but are and always have been held and used by the plaintiff in a single body, for farming and agricultural purposes, as stated in the complaint, and contain ninety-six acres. Sixth. It is claimed by the plaintiff (1) that the legislature cannot confer upon the corporation of Bluffton any new or additional jurisdiction or power by special law, and that so much of the act of February 15, 1873, as assumes to enlarge the jurisdiction of said corporation in point of territory or otherwise, is void; (2) that the lands of the plaintiff, not having been laid out into lots, streets, or alleys, or used for municipal or town purposes, are not legally liable to municipal taxation by or for the benefit of the defendant, and that the taxes levied on the same by the defendant, and paid by the plaintiff, are illegal. Seventh. Both these positions are controverted by the defendant.If, upon the foregoing facts, the court shall find that the law is with the plaintiff, then judgment shall be rendered for the plaintiff for thirty-five dollars; otherwise judgment shall be for the defendant.”

Two questions are presented for our decision by the record of this cause, and the error assigned thereon by appellant, the plaintiff below, namely: (1) Where, prior to November 1, 1851, a municipal corporation was created and organized under a special act of incorporation, and such act was continued in force by and under the fourth clause of the schedule or ordinance annexed to and constituting a part of our state constitution of 1851, had or has the general assembly power or authority by special act to amend such act of incorporation in such manner as to enlarge the jurisdiction, territorially or otherwise, of such municipal corporation? (2) Conceding that the general assembly has such power or authority, is the act of February 15, 1873, to amend certain enumerated sections of the act of February 12, 1851, “to incorporate the town of Bluffton,” a valid and constitutional exercise of such power or authority? We will consider and decide these two questions in the order of their statement.

1. In section 13 of article 11 of our state constitution of 1851 it is provided as follows: “Corporations, other than banking, shall not be created by special act, but may be formed under general laws.” Section 212, Rev. St. 1881. By this constitutional provision, construed in connection with the other provisions of the constitution of 1851, it was certainly intended that on and after November 1, 1851, the general assembly, the law-making power of this state, should have no power or authority, by special act, to create, to originate, or to bring into existence, as a new corporate entity, a municipal corporation where none had previously existed; but, on and after the day named, the legislative power or authority of the general assembly was limited, by the constitutional provision quoted, to the enactment of a general law under which such new corporate entity might be formed. In the schedule annexed to and constituting a part of our state constitution of 1851, “that no inconvenience may arise from the change in the government, it is hereby ordained as follows: * * * Fourth. All acts of incorporation for municipal purposes shall continue in force, under this constitution, until...