Woerner v. City of Indianapolis, 29971

Citation242 Ind. 253,177 N.E.2d 34
Decision Date19 September 1961
Docket NumberNo. 29971,29971
PartiesIn the Matter of August J. WOERNER, Remonstrator and on behalf of all other remonstrators, against the annexation of the Town of Woodruff Place, Indiana, Appellants, v. CITY OF INDIANAPOLIS, Appellee.
CourtSupreme Court of Indiana

L. Russell Newgent, Albert W. Ewbank, Indianapolis, for appellants.

Michael B. Reddington, Corp. Counsel, John J. Dillon, City Atty., Indianapolis, for appellee.

ACHOR, Judge.

This is an appeal from a decree of annexation by which the Town of Woodruff Place in Marion County was ordered annexed to the City of Indianapolis. The factual background of the case is as follows:

In September, 1953, the Common Council of the City of Indianapolis enacted an ordinance purporting to annex to the City of Indianapolis the following described real estate:

'All that part of the West half of the Northeast quarter of Section 6, Township 16 North, Range 4 East, in Marion County, Indiana, which is presently included within the boundaries of the incorporated Town of Woodruff Place.'

The residents of Woodruff Place filed a remonstrance to such annexation under the 1949 Act, which was then in effect. Thereafter the cause lay dormant until after the 1955 Legislature enacted an amendment to the 1949 Act. [Burns' Ann.St. § 48-702 (1961 Cum.Supp.)]. The remonstrators then filed their petition for a declaratory judgment and injunction against any further proceedings in the case upon the theory that the enabling statute upon which the ordinance was based had been repealed, and therefore that any further action under the ordinance was invalid. In connection with said proceedings the parties filed a stipulation of facts and agreement that the case should be decided upon the merits. After considering the case as thus submitted, the trial court declared the ordinance invalid and enjoined the City of Indianapolis from further proceedings. The City of Indianapolis then appealed the cause and this court reversed the judgment of the trial court and ordered the cause be heard upon the merits of the annexation under the procedures of the 1955 Act [Burns' Ann.St. § 48-702, supra]. City of Indianapolis v. Wynn, 1959, 239 Ind. 567, 159 N.E.2d 572.

The appellant, August J. Woerner, thereafter petitioned the Superior Court of Marion County, Room 2, to substitute his name as remonstrator for Earl Wynn who had died, which petition was granted.

A change of judge was thereafter granted and Robert G. Robb was selected to try the cause. Thereafter a motion for change of venue from the county was filed by the appellant, which motion was denied. After submission of the cause the court entered a decree of annexation and denied the motion to modify the judgment and the motion for new trial, from which this appeal was taken.

The issues presented by the appellant's assignment of errors are as follows:

1. That the court erred in overruling appellant's motion for new trial.

2. That the court erred in appellant's motion to modify the judgment.

3. That the decision and finding of the court contravenes is in violation of Art. 1, § 1 of the Constitution of Indiana.

4. That the decision and finding of the court contravenes and is in violation of Art. 16, Schedule (Fourth) of the Constitution of Indiana.

5. That the decision and finding of the court contravenes and is in violation of the Fourteenth Amendment to the Constitution of the United States.

Appellant first argues specifications 1 and 2 of the Motion for New Trial. These are related to the court's refusal to grant a change of venue from the county.

The annexation statute, with reference to a change of venue from the county, provides as follows: 'The laws touching change of venue from the county shall not apply, but changes of venue from the judge may be had as in other cases. * * *' Burns' Ann.St. § 48-702, supra. However, appellant contends that § 2-1432, Burns' 1950 Repl. (1961 Supp.) is applicable under the circumstances of this case. This section provides for changes of venue from the county on proper application 'in every case' where judgments have been reversed in the Supreme or Appellate courts and the case is remanded for new trial. Because of the fact that judgment in the case had been reversed on appeal, appellant contends that he is entitled to change of venue from the county.

We do not so construe the pertinent statutes. The 1947 Amendment to § 2-1432, supra, is an amendment to a general statute, enlarging the law with reference to changes of venue from the county. Although there may be general laws enacted with regard to a subject matter, such as the right of change of venue from the county, such statutes are not controlling of special statutory proceedings such as annexation when such special statute contains an express provision that '[t]he laws touching change of venue from the county shall not apply, * * *' § 48-702, supra. In such special statutory proceedings which exclude resort to any other or different procedure, the method provided in the statute must be followed. Wheeler v. City of Indianapolis, 1929, 201 Ind. 415, 166 N.E. 433 175 N.E. 15; Thorn v. Silver, 1909, 174 Ind. 504, 89 N.E. 943, 92 N.E. 161.

We concluded that § 2-1432, supra, has no application to the special statutory proceedings with which we are here concerned. Therefore appellant's contention that the denial of appellant's motion for change of venue from the county constituted reversible error is without merit.

All other substantive issues and arguments presented by appellant's motion for new trial and motion to modify the judgment are related to the fact that the ordinance of annexation, and the notices relative thereto, erroneously described the territory sought to be annexed as being Section 6, Township 16 North, Range 4 East, whereas the Town of Woodruff Place is, in fact, located in Section 6, Township 15 North, Range 4 East. This issue was raised in the objections to the admission of evidence. However, it was also vigorously asserted in the motion to modify the judgment. In said motion appellant strongly objected to the fact that the trial court entered a decree of annexation which specifically and correctly described 'the boundaries of the incorporated town of Woodruff Place,' (which term is used in the ordinance of annexation) although the ordinance, if literally construed, describes the territory which was non-existent.

It is appellant's contention that because of this error in the description of the territory involved, the ordinance of annexation was a nullity from its inception and that being 'stillborn' the court had no authority to admit evidence as to the actual boundaries of the Town of Woodruff Place or to alter the description of the territory as described in the ordinance. Appellant argues that such a decree of annexation is contrary to law, for the reason that it purports to annex territory by judicial decree which was not annexed by the ordinance, itself.

Appellant properly asserts that annexation is a legislative and not a judicial function and therefore the court had no authority to decree the annexation of territory to a municipality which had not previously been annexed by ordinance. Therefore, the question with which we are confronted is whether the court could construe the ordinance, as written, to describe the actual boundaries of the Town of Woodruff Place. The law is well settled that the same rules apply to the construction of an ordinance as to a statute. Zorger v. City of Greensburgh, 1877, 60 Ind. 1.

We therefore examine the decisions of this court relied on by appellant, as related to the construction of statutes wherein there is an apparent defect or omission in the enactment, which appears to be the result of a clerical or typographical error and by reason of which the enactment, if literally construed, is inoperative or produces an absurd result.

It is true that in the case of Taylor v. State ex rel., 1907, 168 Ind. 294, 269-297, 80 N.E. 849, 850, this court stated the general rule of law as follows:

'In cases of uncertainty or ambiguity, necessitating a construction of statutes, the primary object is to ascertain and give effect to the legislative intention. But, where the language of enactments is free from ambiguity and and uncertainty, courts cannot supply defects or omissions in order to carry out more fully the supposed purpose and intent of the Legislature. * * *'

See also: Diamond Plate-Glass Co. v. Tennell, 1899, 22 Ind.App. 132, 52 N.E. 168.

However, the above cases, which correctly enunciate the general rule of statutory construction, do not state the total law on the subject. Although the general rule is now well established that, where the language of enactments is free from ambiguity and uncertainty, 'courts cannot supply defects or omissions in order to carry out more fully the supposed purpose and intent of the Legislature.' Taylor v. State, ex rel., supra, nevertheless an exception to the above stated general rule has developed during the last century in the reported cases of this court, so that now the exception is as well established as the rule itself. The exception is demonstrated by an analysis of the cases of the last century which have considered this issue.

In State ex rel. v. Bartholomew, 1911, 176 Ind. 182, 191, 95 N.E. 417, 420, this court quoted, with approval, from the earlier case of Clare v. State, 1897, 68 Ind. 17, 25, which, in part, is as follows:

"[T]he true rule is, and always has been, as recognized in many decisions of this court, to make the legislative intention in the enactment of the particular statute, the chief guide of the court in its interpretation and construction. If the object, purpose, and intention of the Legislature, in the enactment of the particular statute, can be fairly ascertained and arrived at, then it is the duty of the court to overlook and disregard all apparent...

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