Windle v. City of Valparaiso
| Decision Date | 07 June 1916 |
| Docket Number | 9,002 |
| Citation | 113 N.E. 429,62 Ind.App. 342 |
| Parties | WINDLE ET AL. v. CITY OF VALPARAISO ET AL |
| Court | Indiana Appellate Court |
From Lake Circuit Court; W. C. McMahan, Judge.
Action by William G. Windle and others against the City of Valparaiso and another. From a judgment for defendants, the plaintiffs appeal.
Affirmed.
Daniel E. Kelly and John H. Gillett, for appellants.
E. D Crumpacker, Wm. C. Daly, Grant Crumpacker, O. L. Crumpacker and E. J. Freund, for appellee.
Appellants on 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 makes 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, the alleys intersecting 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 twenty or twenty-five 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 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 twenty-five men at an annual aggregate salary of fifteen thousand dollars, 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 blocks 22, which we here append, furnishes an intelligent understanding of the relation which the portion of the alley in controversy bears to the surroundings.
[SEE ILLUSTRATION IN ORIGINAL]
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. On July 11, 1913, the committee 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; 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; 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 only that part 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 volumious, 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. 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 that passed it is subordinate in its character and a creature of the legislature. Crichfield v. Bermudez, etc., Co. (1898), 174 Ill. 466, 51 N.E. 552, 42 L. R. A. 347; Schmidt v. City of Indianapolis (1907), 168 Ind. 631, 80 N.E. 632, 14 L. R. A. (N.S.), 787, 120 Am. St. 385; 28 Cyc 290; Indiana R. Co. v. Calvert (1906), 168 Ind. 321, 80 N.E. 961, 10 L.R.A. (N.S.), 780, 11 Ann Cas. 635; Pittsburgh, etc., R. Co. v. Hartford City (1908), 170 Ind. 674, 82 N.E. 787, 85 N.E. 362, 20 L.R.A. (N.S.) 461.
In Paulsen v. Portland (1892), 149 U.S. 30, 13 S.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 Milhau v. Sharp (1854), 17 Barb. 435; Indiana R. Co. v. Calvert, supra; Pittsburgh, etc., R. Co. v. Hartford City, supra; Paulsen v. Portland, supra. 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 resolution in accordance with the statute it is declared to be conclusive on all persons. § 8700 Burns 1914, Acts 1905 p. 282; § 8959 Burns 1914, Acts 1913 p. 12.
The subject-matter here under consideration was plainly within the authority expressly granted to the common council of the city of Valparaiso, hence we need not further pursue the question of the power of the council to act in the premises. This leaves for consideration the manner in which it exercised the power thus conferred. As we have seen, the general subject-matter relating to the vacation of streets and alleys is regarded as legislative in its character. However, as to the actual hearing of those...
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