Knutson v. State Ex Rel. Seberger

157 N.E.2d 469, 239 Ind. 656, 1959 Ind. LEXIS 210

• Court: Indiana Supreme Court
• Decided: April 7, 1959
• Docket: 29,647
• Status: Published

Opinions

Achor, J.

This is an appeal from an action in mandate brought by a subdivider and his wife against the Town Board of Trustees of the town of Dyer, Indiana, to require the approval of a plat of a proposed subdivision of land within the town. The action was filed on October 2, 1956, after the Town Board had disapproved the plat as presented. The trial court ordered the Town Board to approve the plat. From that decree this appeal was taken.

It is appellants’ position that the approval of such plat was discretionary with the Town Board and therefore that order of mandate was contrary to law.

It is the general rule, as contended by appellants, that writs of mandate will not be granted to control the discretionary action of a public officer, board or commission.¹ 2However, the law is also well established by a long line of decisions that public officials, boards and commissions may be mandated to perform ministerial acts where there is a clear legal duty to perform such acts.²

The basic question presented by this appeal is whether under the circumstances here presented there was a clear duty on the part of the Town Board of Dyer to approve or disapprove the plat as submitted as a ministerial act.

Cities and towns have been granted broad authority by the state which created them to control the development of areas in and adjacent to them. However, public policy requires that this authority be exercised in a standardized and clearly defined manner so as to enable both the landowner and the municipality to act with assurance and authority regarding the development of such areas. It is for this reason that although public policy requires municipal control of such development, nevertheless the authority of a town to deny a landowner the right to develop his property by refusing to approve the plat of such development is by statute made to rest upon specific standards of a statute or implementing ordinance.³ Thereafter the approval or disapproval of the plat on the basis of the controlling standards is a ministerial act.⁴

Therefore, we first consider the pertinent statutes and their implementing ordinances, as cited and relied upon by the parties.

Section 48-801, Burns’ 1950 Repl. [Acts 1905, ch. 129, §246, p. 219] provides in part as follows:

“Any person who may lay off . . . any subdivision or any lots or lands within the limits of any city or town, shall, previous to the sale of any lots in such town, addition or subdivision, cause to be recorded in the recorder’s office of the proper county a correct plat of such town, addition or subdivision, with the public grounds, streets and alleys properly marked, showing the length and width of each, and with the lots regularly numbered and the size thereof marked upon the plat. ...”

Section 48-802 provides in part as follows:

“Whenever a plat is made of any lots or lands as an addition to any city or town, or as a subdivision of any lots or lands within such city or town, such plat shall be submitted for approval of . . . the board of trustees in any town, . . . be-for the same is offered for record in the recorder’s office. Such . . . board of trustees, after examination duly made, shall approve or disapprove such plat. Such . . . board of trustees may require the streets and alleys, therein shown, to be as wide as, and to be coterminous with the streets and and alleys of that part of the city or town to which it adjoins...

Furthermore, under the Planning and Zoning statute [§§53-701—58-789], Burns’ 1951 Repl. (and 1957 Supp.) cities and towns were authorized to adopt planning and zoning ordinances which would, in great detail, regulate the development of subdivisions. The statute further provided that upon creation of such Plan Commission and the adoption of such Master Plan, the Plan Comission was vested with authority to “approve” or “disapprove” the plats of subdivisions on the basis of the improvements required by the ordinance [§53-748]. Under this authority the town of Dyer adopted a subdivision Control Ordinance No. 281, as part of a Master Plan designed to control the future growth of the area under the jurisdiction of a Plan Commission. The ordinance under authority of the statute purported to establish by reference certain standards for the construction of streets, sewers, etc. for subdivisions as a condition precedent to their approval.

However, we are here confronted by the fact that on February 15, 1957, a declaratory judgment was rendered by the Lake Circuit Court which declared that the above subdivision control ordinance was fatally defective⁵ for the reason that it purported to incorporate by reference “a non existent Street and Thoroughfare Plan,” and that the Plan Commission of the town of Dyer was not qualified to approve a subdivision plat. No appeal was taken from this judgment and therefore it stands as a final adjudication that the subdivision control ordinance of the town of Dyer, purportedly in effect at the time of this controversy, was void. Therefore, the only authority and standard cited by appellant by which the town board could approve or disapprove the plat submitted was that set forth in §§48-801 and 48-802, supra.

Even so, appellant contends that the statute, by its express provision, gave the town board discretionary authority, legislative in character, to “approve or disapprove” plats, and therefore such action of the board could be reviewed only if fraudulent.

The action of a town board may be legislative or administrative, depending upon the particular circumstance.⁶ Where, as here, the town board had merely to determine that the plat conformed to specific statutory requirements, then the approval or disapproval of the plat on the basis of such fact was a ministerial act. And, since the controlling statute deals with the exercise of the police power of the state limiting the rights of property owners in the use and control of their properties, the ministerial authority granted by statute will not be extended by implication. Hill v. Review Board, etc., et al. (1953), 124 Ind. App. 83, 112 N. E. 2d 218; State ex rel. Kahler-Ellis Co. v. Cline (1954), (Ohio Com. Pl.) 125 N. E. 2d 222. See Syl. 2 and 3, p. 224. Therefore, although the town board was generally charged to examine and “approve or disapprove such plat,” [as submitted in §48-802, supra] such examination was limited to the specifications set out in the statute. State ex rel. v. Board, etc. (1911), 175 Ind. 400, 94 N. E. 716.

Further upon this subject, this court has stated:

“... A duty to be performed is none the less ministerial because the person who is required to perform it may have to satisfy himself of the existence of a state of facts under which he is given his right or warrant to perform the required duty. . . .” Board of Com’rs, etc., et al. v. State ex rel. Brown et al. (1897), 147 Ind. 476, 495, 46 N. E. 908.

To the same effect, see Flournoy v. The City of Jeffersonville (1861), 17 Ind. 169, 174.

Here the plat clearly complied with the requirements of the above statute, in that it showed the length and width of streets with lots “regularly numbered and the size marked upon the plat,” as provided by §48-801, supra, and, further, it showed the streets and alleys in the area platted were “as wide as, and to be coterminous with, the streets and alleys of that part of the city or town to which it adjoins,” as provided in §48-802, supra.

Under the above circumstances, it appearing that the plat of the subdivision as submitted complied with all the specific requirements of the statute, and there being no valid city ordinance in effect, which could have, but did not, prescribe further conditions precedent to the approval of the plat, it therefore became the mandatory duty of the town board to approve and accept the plat as submitted. Therefore, it cannot be said that the court abused its discretion in ordering the appellants to perform the duty imposed upon them by statute.

Judgment is therefore affirmed.

Landis, C. J., and Arterburn, J., concur. Bobbitt, J., dissents with opinion. Jackson, J., concurs in Bobbitt’s, J., dissent.

1 . State ex rel. Fry v. Bd. of Commissioners of Martin County (1890), 125 Ind. 247, 25 N. E. 286; State ex rel. Reynolds v. Bd. of Commissioners of Tippecanoe County (1874), 45 Ind. 501.

2 . State ex rel. Smithermon et al. v. Davis, etc. et al. (1958), 238 Ind. 563, 151 N. E. 2d 495; Board of Comm’rs of Daviess Co. v. State ex rel. City of Washington (1895), 141 Ind. 187, 192, 40 N. E. 686; The State ex rel. Roundtree v. The Board of Commissioners of Gibson Co. (1881), 80 Ind. 478; State ex rel. v. Hall (1921), 191 Ind. 271, 276, 277, 131 N. E. 821; Wise v. McKeever (1916), 184 Ind. 686, 696, 112 N. E. 765; Public Service Com. v. State ex rel. (1916), 184 Ind. 273, 111 N. E. 10; Recher v. State ex rel. (1914), 182 Ind. 301, 305, 106 N. E. 355; Rodenbarger v. State ex rel. (1906), 165 Ind. 685, 689, 76 N. E. 398; Welch v. State ex rel. (1905), 164 Ind. 104, 107, 72 N. E. 1043; State ex rel. v. Board, etc. (1901), 157 Ind. 96, 98, 60 N. E. 939; State ex rel. Roberts v. Bever (1885), 143 Ind. 488, 492, 41 N. E. 802; State ex rel. Cutter v. Kamman, Trustee, et al. (1898), 151 Ind. 407, 410, 51 N. E. 483; The State ex rel. Dunkleberg v. Porter, Trustee of Clinton Township (1893), 134 Ind. 63, 33 N. E. 687; The Board of Comm’rs of Hamilton Co. v. The State ex rel. Stephenson et al. (1888), 113 Ind. 179, 185, 15 N. E. 258.

3 . See City of Indianapolis v. College Park Land Co. (1918), 187 Ind. 541, 547, 118 N.E. 356.

4 . In People ex rel. Jackson & Morris, Inc. v. Smuczynski (1951), 345 Ill. App. 63, 67,102 N. E. 2d 168, 170, the court held as follows:

“ ‘The city council cannot, by failing to pass any ordinance, reserve to itself arbitrary discretion to approve plats or not to approve them. Where the city has not passed any ordinance on the subject, the only requirements to which the owner is obliged to conform are those of the statute.’ ”

Also in the case of Hoerrmann v. Wabash Ry. Co. (1923), 309 Ill. 524, 535, 141 N. E. 289, 293, the court held as follows:

“. . . The act of approval by a village board . . . when the statutes and ordinances have been complied with in making a plat of a subdivision, is ministerial and may be enforced by mandamus. . ,

5 . The decree provided in part:

“It is Therefore Ordered, Adjudged and Decreed by the Court that at the time this, action was filed, the Plan Commission of the Town of Dyer did not have power to approve and disapprove subdivision plats and, particularly, did not have such power over the plat of the Flower Gardens Addition to the Town of Dyer.

“Before the Plan Commission of the Town of Dyer could acquire the power to approve or disapprove subdivision plats, it was necessary that the Town of Dyer, through its Town Board, adopt a subdivision control ordinance and a Master Plan, or part thereof, as defined in Sec. 3, Ch. 174, of the Acts of the Indiana General Assembly for 1947, at page 571; as amended by Sec. 1, Ch. 178, of the Acts of the Indiana General Assembly of 1953, at page 641.

“That until such time, the Board of Trustees of the Town of Dyer was the only body having power to approve or disapprove subdivision plats and is now the only body having such power over the subdivision plat of the Flower Gardens Addition to the Town of Dyer.

“It is Further Ordered, Adjudged and Decreed by the Court that Part 2, Sec. 3 of Title III, Part 3a, Section 3 of Title III of the- Ordinance No. 281 of the Town of Dyer are ineffective and inoperative because of the mandatory provisions of said ordinance, (are) made dependent on a non-existent Street and Thoroughfare Plan.”

6 . The annexation or refusal to annex new territory is a legislative function. Ehyne: Municipal Law, pp. 34-36.