Opinion
Widaman, Bowsers&sReed, Warsaw, for appellants.
Rockhill, Vanderveer, Kennedys&sPinnick, by Herbert H. Bent, Warsaw, for appellee.
SHARP, Judge.
On February 17, 1969 the Appellee, City of Warsaw, Indiana, enacted five annexation ordinances. Notice was duly published and the Appellants-remonstrators filed remonstrances on February 29, 1969 and it was determined that the remonstrances were signed by a majority of the owners of land in the territory sought to be annexed and that said remonstrances complied with the formal requirements of the statute.
There was a consolidation for trial of various causes representing the same issue. The Appellee City filed answer in admission and denial and a comprehensive pretrial order was entered.
The trial court made the following findings:
'(a) The annexation is in the best interests of the City and of the territory sought to be annexed;
'(b) The area is urban in character, being an economic and social part of the annexing City;
(c) The terms and conditions set forth in the ordinance are fair and just;
(d) The City is financially able to provide municipal services to the annexed area within the reasonable near future;
(e) The area sought to be annexed, if undeveloped, is needed for development of the City in the reasonably near future; and
(f) The lines of the annexation are so drawn as to form a compact area abutting the municipality.
The court finds that all legal requirements have been satisfactorily met by the City and the annexation in each area must be approved and affirmed.' This case was brought and determined under Acts 1905, ch. 129, § 243 as amended and as found in Ind.Ann.Stat. § 48--702 (Burns 1963), (repealed, effective 1970).
The trial court thereafter denied relief for the remonstrators and ordered the territory in question annexed. The remonstrators filed a motion to correct errors which was overruled and this appeal resulted.
I.
The Appellants question the sufficiency of the evidence to determine the judgment below. The record discloses that the City of Warsaw presented 18 witnesses, all of whom testified regarding the applicability of the six determinants required by the statute as to annexed areas. Their testimony covers over 400 pages of the transcript. Fundamentally the argument in this regard by the Appellants is that the tax rate on the property in the annexed area would increase and that the residents in the annexed area did not want to be annexed. The real legal question, however, is whether the record discloses evidence to support the trial court's finding that the six determinants set forth in the statute were shown to be present. Without engaging in a detailed review of the mass of evidence here we find and hold such to be the case.
II.
It would seem that the basic contention of the Appellants is that the provisions of the annexation statute as found in Ind.Ann.Stat. §§ 48--701 and 48--702 (Burns 1963), (repealed, effective 1970), are in violation of Article III, § 1 of the Constitution of the State of Indiana as a delegation of legislative prerogative to the judiciary.
It is well recognized in Indiana that annexation is a legislative function and does not become a question subject to judicial cognizance except upon review by means of remonstrance as provided by statute. City of Indianapolis v. Wynn et al, 239 Ind. 567, 157 N.E.2d 828, 159 N.E.2d 572 (1959). The statutes extend to the governing body of a municipality exclusive authority to annex territory. City of Aurora v. Bryant, 240 Ind. 492, 165 N.E.2d 141 (1960). A remonstrance from the annexation abates the culmination of the annexing pending a review by the courts and places upon the municipality the burden of sustaining said annexation in light of the requirements of the statutes. City of Indianapolis v. Wynn, supra; Vesenmeir v. City of Aurora, 232 Ind. 628, 115 N.E.2d 734 (1953).
Our Supreme Court, in City of Aurora v. Bryant, supra, considered this precise question in regard to an earlier version of the statute. Our Supreme Court recognized the distinction between an unconstitutional delegation of legislative powers and functions, and the power to determine when conditions exist which warrant the annexation of territory to a municipality, a power which may legally be vested in the courts.
The Supreme Court, at pages 499 and 500 of 240 ind. at page 145 of 165 N.E.2d, states as follows:
'The court is, by the provisions of § 48--702, supra, simply given the power to determine, in the event there is a remonstrance filed, whether certain conditions imposed by the statute are met. The court is not authorized to act unless a remonstrance is filed, and if one is not filed the annexation becomes effective without any submission to, or action by the court.' (citation omitted)
The Supreme Court concluded, at page 503, at page 147 of 165 N.E.2d, as follows:
'For the foregoing reasons it is our opinion that Sec. 47--702, supra, does not attempt to vest legislative power in the courts, but simply authorizes the court to determine and adjudge whether or not certain statutory requirements necessary to sustain the legislative action of the Common Council of a city in annexing territory, when a remonstrance is filed, have been met; and such section does not violate or contravene the provisions of Art. 3, § 1, of the Constitution of Indiana.'
The above language is equally appropriate to the provisions of § 47--702 as amended by the Acts of 1955, ch. 269, § 3, p. 702. The function performed by the court under both versions of said statute is identical. The only difference between the two is the statutory requirements necessary to sustain the legislative action. The conditions or primary determinants which must be met before annexation will be allowed are more clearly and fully enumerated in the statute involved here. Since the function of the court remains the same, we do not see how the enumeration of additional criteria to guide the trial court and limit his discretion in the factors to be considered can be said to adversely affect the constitutionality of the statute. The statute involved here grants the same authority to the courts as the statute in Bryant, which is simply to determine and adjudge whether the statutory requirements necessary to sustain the legislative action have been met. The enumeration of additional requirements in the newer statute in no way changes the character of the function to be performed by the courts. We hold that City of Aurora v. Bryant is determinative of the constitutionality of § 48--702 in regard to Article III, § 1 of the Constitution of the State of Indiana.
III.
The Appellants also allege that §§ 48--701 and 48--702 violate the Fourteenth Amendment to the Constitution of the United States as a denial of equal protection of the laws. Our Supreme Court in Forks v. City of Warsaw, Ind., 273 N.E.2d 856 (1971), cert. den., --- U.S. ---, 93 S.Ct. 39, 34 L.Ed.2d 80, (October 10, 1972), a case involving similar ordinances, held that the right to remonstrate as provided by the statute in question is not an election to the extent that all voters in the community must be afforded the opportunity to participate and therefore the sections of the statute in question are not in violation of the Constitution of the United States.
IV.
The Appellants have next contended that the descriptions as set forth in the ordinances of the territories to be annexed are so uncertain as to render the ordinances void. In Willian v. City of Evansville, 121 Ind.App. 185, 98 N.E.2d 219 (1950), this court stated:
'In our opinion the description in question is such that, upon a fair and reasonable construction thereof, its boundaries are evident without resort to parole evidence or rules of legal interpretation. That, we believe, is all that is necessary.'
We cannot say as a matter of law that the description of the boundaries of the annexed territory in the ordinances in question fail to meet the standards of the Willian case.
Finding no reversible error we hereby affirm the decision of the trial court.
HOFFMAN, C.J., and STATON, J., concur.