City of Terre Haute v. Beach

96 Ind. 143, 1883 Ind. LEXIS 17

• Court: Indiana Supreme Court
• Decided: December 13, 1883
• Docket: No. 8409
• Status: Published

Opinions

Elliott, J.

The appellees’ complaint alleges that the board of commissioners of Vigo county, on the petition of the city of Terre Haute, ordered lands belonging to them to be annexed to the city, and charges that this judgment was void, because, to borrow the language of the pleading, “ no petition was ever presented to the board of commissioners for the annexation of the territory described in the order of the board, but the petition presented at said time to said board included and described other lands, and which said board refused to annex to said city, and granted only a part of said petition.” It is clear, under the now settled rule, that this statement supplies no ground for an injunction. Many cases establish the rule that where the petition is sufficient on its face to confer jurisdiction of the subject-matter, the proceedings based upon it, although erroneous, can not be overthrown by injunction. The appropriate remedy in such cases is by appeal. Where there is jurisdiction no irregularities or errors will render the proceedings void, and it is only void proceedings that can be collaterally assailed. Town of Cicero v. Williamson, 91 Ind. 541; Heagy v. Black, 90 Ind. 534; Grusenmeyer v. City of Logansport, 76 Ind. 549; Caskey v. City of Greensburgh, 78 Ind. 233; Board, etc., v. Pressley, 81 Ind. 361; Green v. Elliott, 86 Ind. 53.

It is also averred that “ no notice by publication of the intention to present said petition to said board of commissioners, was given thirty days'previous to December 5th, 1872.” By the law in force when the annexation proceedings were had, it was provided that the “ council shall give thirty days’ notice, by publication in some newspaper of the city, of the intended petition ” (1 R. S. 1876, p. 311), and if the complaint had directly charged that no notice at all had been given, it would perhaps have been good, because, as the proceeding affected the personal and private rights of the appellees, they were entitled to the notice, and this not having been given the board of commissioners did not acquire jurisdiction of the person. Town of Cicero v. Williamson, supra. Notice in some form in such cases is required, and a statute not providing for it is probably unconstitutional. Campbell v. Dwiggins, 83 Ind. 473. However this may be, it' is clear that the complaint is insufficient. For aught that appears more than thirty days’ notice may have been given. The presumption is in favor of the acts of public officers, and, until the contrary is shown, it must be presumed that they have done their duty. There is nothing here to show that notice was not given for a much longer period than thirty days. It is, indeed, impliedly conceded by the complaint that some notice was given, and the rule is that where there is some notice, although a defective one, and the commissioners have adjudged it sufficient by acting upon it, there can be no successful collateral attack. Oppenheim v. Pittsburgh, etc., R. W. Co., 85 Ind. 471; Stout v. Woods, 79 Ind. 108; McAlpine v. Sweetser, 76 Ind. 78; Hume v. Conduitt, 76 Ind. 598; Muncey v. Joest, 74 Ind. 409.

Filed Dec. 13, 1883.

Judgment reversed.