Windle v. City of Valparaiso

• Decision Date: 07 June 1916
• Docket Number: No. 9002.,9002.
• Parties: WINDLE et al. v. CITY OF VALPARAISO et al.
• Court: Indiana Appellate Court

62 Ind.App. 342

113 N.E. 429

WINDLE et al.

v.CITY OF VALPARAISO et al.

No. 9002.

Appellate Court of Indiana, Division No. 2.

June 7, 1916.

Appeal from Circuit Court, Lake County; Willis C. McMahon, Judge.

Action by William G. Windle and others against the City of Valparaiso and another to annul the vacation of an alley, and for injunction against the use of the vacated portion of such alley for other than public purposes. Judgment for defendants, and plaintiffs appeal. Affirmed.Daniel E. Kelley, of Valparaiso, and John H. Gillett, of Hammond, for appellants. E. D. Crumpacker and Wm. Daly, both of Valparaiso, for appellees.

MORAN, J.

Appellants, in their own behalf and for all other taxpayers of the city of Valparaiso, other than appellee Lowenstine, brought suit against the city and appellee Lowenstine to have a proceeding vacating a portion of a certain alley of the city declared null and void, and to enjoin appellee Lowenstine from using the vacated portion of the alley, other than for a public purpose. A review of the action of the trial court in refusing the relief sought is based upon exceptions reserved to conclusions of law rendered by the court upon facts specially found. Appellees have assigned cross-errors, but the conclusion reached on the merits of the appeal make it unnecessary to consider the same.

From the facts found by the court block 22 in the city of Valparaiso, which is a city of the fifth class, is within the principal business district of the city. An alley 16 1/2 feet wide extends from east to west through the center of the block, and a similar alley from north to south, so that the alleys intersect in the center of the block, thus subdividing the block into four equal divisions. On June 13, 1913, appellee Jacob Lowenstine and six other citizens of Valparaiso petitioned for the vacation of 132 feet off the west end of the alley running east and west through the block. Omitting the formal parts, the petition reads:

“The undersigned, residents and freeholders of the city of Valparaiso, Indiana, petition the common council of said city for the vacation of an alley, in said city, running east from Franklin street through the west half of block 22, original survey of the town (now city) of Valparaiso, to the west line of the alley running north and south through said block 22, for the following reasons: “(1) The portion of said alley asked to be vacated is not a public utility, and it would promote the public interests, and save the city from responsibilities and the expense of maintaining the alley sought to be vacated. (2) That said alley is seldom used by any one excepting by J. Lowenstine & Sons, and the said J. Lowenstine, one of the petitioners hereto,is the owner of lands on both sides of the alley proposed to be vacated, and if said alley shall be vacated he contemplates the enlargement of the department store of J. Lowenstine & Sons to such an extent as will make necessary the employment of 20 or 25 additional clerks and assistants, and tend to attract more people to the city of Valparaiso, for trading purposes. (3) That most of the modern cities of the size of Valparaiso have but one alley running through the block, and that the north and south alley through said block 22, and the alley from the east side of the said north and south alley to Michigan street, will answer every convenience of all the property owners in said block. (4) While the question of the vacation of said alley must be determined upon the issue of whether or not it is of general importance, it may be well for the petitioners to suggest to the common council that said J. Lowenstine is and always has been a public-spirited man, and has built a large mercantile establishment in said city, and established a steel factory therein, which is now employing 25 men at an aggregate salary of $15,000, not including the salaries paid to the officers of the concern. For the above reasons the petitioners respectfully ask that the portion of the alley above described be vacated.”

A plat of block 22, which we here append, furnishes an intelligent understanding of the relation the portion of the alley in controversy bears to the surroundings:

Image 1 (4.7" X 5.18") Available for Offline Print

Block 22 is 280 1/2 feet square; the streets adjoining the block are all improved with modern street paving material, and the alleys, including the portion under consideration, are paved with vitrified brick, and have been for several years. The petition praying for the vacation of that portion of the alley under consideration was, over the objection of the remainder of the owners of real estate in block 22, referred by the common council to the street committee, consisting of three of its own members, for investigation, and on July 11, 1913, it reported to the common council that from the investigation it had made the public interests of the city would be advanced by the vacation thereof, that the city would be relieved from the responsibility of maintaining the same, and that the city had little or no interest in keeping the alley open, and further that the committee was advised that appellee Lowenstine, who owned the abutting property and the fee to the portion of the alley sought to be vacated, would erect a large department store in the event the petition was acted upon favorably, and that he would be benefited in the sum of $1,900, and that he should be assessed to this amount in the event the council finally granted the prayer of the petition; that the owners of the remaining real estate in the block would not in any way be injured by the vacation of that part only of the alley upon which appellee Lowenstine's property abutted; that the remaining alleys furnished ample means of egress and ingress to the property owners of the block. After the necessary notices were given, and a hearing had as to the parties opposing the vacation proceedings, the city council passed an ordinance vacating the portion of the alley recommended to be vacated by the street committee.

Interspersing the findings, which are voluminous, are evidentiary facts to the effect that promises were made by appellee Lowenstine that he would build a large department store in the event the council acted favorably upon the petition, and that the promises, in part, at least, moved the council to pass the resolution vacating that part of the alley upon which Lowenstine's property abutted.

[1][2] The legal proposition for solution, when reduced to its simplest form, is: To what extent, if at all, are the proceedings of the common council of the city of Valparaiso, in reference to the action it took in vacating the alley under consideration, subject to judicial review in a suit in equity. The force and value of an ordinance passed by a municipality from the standpoint of its legal significance has been the subject of much investigation, as is disclosed by the adjudicated cases and text-book writers upon municipal law. While there is some confusion in the authorities upon this question, in the main, an ordinance passed by a common council of a municipality is regarded and treated as a species of legislation, as much as an act passed by the Legislature of the state itself, though the body passing it is subordinate in its character and a creature of the Legislature. Crichfield v. Bermudez Asphalt Paving Company, 174 Ill. 466, 51 N. E. 552, 42 L. R. A. 347;Schmidt v. City of Indianapolis, 168 Ind. 631, 80 N. E. 632, 14 L. R. A. (N. S.) 787, 120 Am. St. Rep. 385; 28 Cyc. 290; Indiana Ry. Co. v. Calvert, 168 Ind. 321, 80 N. E. 961, 10 L. R. A. (N. S.) 780, 11 Ann. Cas. 635;P., C., C & St. L. R. Co. v. Hartford City, 170 Ind. 674, 82 N. E. 787, 85 N. E. 362, 20 L. R. A. (N. S.) 461. In Paulsen v. Portland, 149 U. S. 30, 13 Sup. Ct. 750, 37 L. Ed. 637, the court said:

“The city is a miniature state, the council is its legislature, the charter is its constitution, and it is enough if, in that, the power is granted in general terms, for, when granted, it must necessarily be exercised subject to all limitations imposed by constitutional provisions.”

It is well settled in this state that municipal corporations have-

“the exclusive right to control and regulate the use of the streets in the city. In this respect it is endowed with legislative sovereignty. The exercise of that sovereignty has no limit, so long as it is within the objects and trust for which the power is conferred. An ordinance regulating a street is a legislative act, entirely beyond the control of the judicial power of the state.” Milhau v. Sharp, 17 Barb. (N. Y.) 435; Indiana Ry. Co. v. Calvert, supra; Pittsburgh, etc., R. Co. v. Hartford City, supra; Paulsen v. Portland, supra.

[3][4] In this connection, however, it can further be said that municipal corporations possess only such powers as are conferred upon them by the Legislature, with such incidental powers as are implied and essential to the accomplishment of the purpose for which they were created. The grant of express power conferred upon municipal corporations in this state provides that streets and alleys may be vacated by the common council, after notice and hearing as to those affected, and after the final step has been taken by...