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Wiley v. The Corporation of Bluffton.

No. 5740.
WILEY V. THE CORPORATION OF BLUFFTON.

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MUNICIPAL CORPORATION.--Special Charter.--- Amendment.-- Enlargement of

Jurisdiction.- Where, prior to November 1, 1851, a municipal corporation was created and organized under a special act, and such act was continued in force by the Constitution of 1851, the General Assembly has power, by special act, to amend the act of incorporation, so as to

enlarge the jurisdiction or the municipality territorially or otherwise. SAME.Town of Blufion.- Amendment of Charter by Special Act.- Constitu

tional Law.–The subject of the act of February 15, 1873, to amend certain enumerated sections of the act of February 12, 1851, to incorporate the town of Bluffton, is not one of the subjects enumerated in section 22, of article 4, of the Constitution of 1851, prohibiting the General Assembly from passing special laws, and is a valid and constitutional

exercise of legislative power.
SAME.- Local and General Laws.- Question for Legislature. It is for the

Legislature alone to judge whether a law on any given subject, not
enumerated in section 22, of article 4, of the Constitution, can be made
applicable and of uniform operation throughout the State, as required
by section 23 of the same article.
From the Wells Circuit Court.
R. S. Taylor, for appellant.

J. S. Dailey, L. Mock, S. Claypool, W. A. Ketcham, A.
Iglehart and C. L. Wedding, for appellee.

Howk, J.—This cause was submitted to the trial court as an “ agreed case," upon an agreed statement of facts, made out and signed by the parties, under the provisions of section 553, R. S. 1881. Thereupon, the court found for the appellee, the defendant below. Over appellant's exception to its finding, the trial court adjudged that he take nothing by his suit, and that appellee recover of him its costs in this action expended.

Error is assigned here by appellant, the plaintiff below, upon the finding of the trial court against him upon the agreed statement of facts.

The facts agreed upon by the parties to this suit were substantially as follows:

« 1st. The town of Blusfton was incorporated by a special

Wiley v. The Corporation of Bluffton.

act of the Legislature, approved February 12th, 1851, and has never surrendered its special charter, nor organized under the general law.

"2d. This charter was amended by the act of February 15th, 1873, and, since the passage of that act, the corporation of Bluffton has claimed the benefit of its provisions and has been exercising the powers conferred by it. Both said acts are hereby made part of the record, without being formally set out.

"3d. Before the passage of that act, the corporation boundaries of the town of Bluffton were as indicated by the double pencil lines on the map filed herewith and made part of this agreement. By that act, the boundaries of said town were extended so as to include all of section four, except that part lying northeast of the Wabash river, indicated on said map.

"[Here insert diagram of section 4, showing the Wabash river crossing the northeast corner thereof, (2) the town of Bluffton, as incorporated February 12th, 1851, inclosed by double lines, and (3) the residue of the section, brought within the corporation boundaries by the amendatory act of February 15, 1873.]

"4th. Since the passage of that act, the defendant has been exercising corporate jurisdiction over all said territory, and has levied taxes for corporation purposes on all the lands embraced within the same, basing her claim of right so to do upon said acts.

"5th. The lands described in the complaint are and were the property of the plaintiff, as stated in the complaint, and were not included within the corporate limits of the town of Bluffton, prior to the passage of said act of February 15th, 1873, but were added thereto by said act. The taxes mentioned in said complaint were levied on the lands therein described by the defendant, and were paid by the plaintiff under protest, as stated in the complaint. Said lands have never been laid off into lots, streets or alleys, excepting that, Wiley t. The Corporation of Bluffton.

since said taxes were levied, the plaintiff laid off twelve lots, with streets, on the northwest corner of the lands described in the complaint (said plat, including streets, is 499 feet by 283 feet, containing one acre, as shown on said map), but are, and always have been, held and used by the plaintiff in a single body, for farming and agricultural purposes, as stated in the complaint, and contain ninety-six acres.

"6th. It is claimed by the plaintiff: 1st. That the Legislature can not confer upon the corporation of Bluffton any new or additional jurisdiction or power by special law, and that so much of the act of February 15th, 1873, as assumes to enlarge the jurisdiction of said corporation, in point of territory or otherwise, is void. 2d. That the lands of the plaintiff, not having been laid out into lots, streets, or alleys, or used for municipal or town purposes, are not legally liable to municipal taxation by, or for the benefit of, the defendant, and that the taxes levied on the same by the defendant, and paid by the plaintiff, are illegal.

"7th. Both these positions are controverted by the defendant.

"If, upon the foregoing facts, the court shall find that the law is with the plaintiff, then judgment shall be rendered for the plaintiff for thirty-five dollars; otherwise judgment shall be for the defendant."

Two questions are presented for our decision by the record of this cause and the error assigned thereon by appellant, the plaintiff below, namely:

1. Where, prior to November 1st, 1851, a municipal corporation was created and organized under a special act of incorporation, and such act was continued in force by and under the fourth clause of the schedule or ordinance annexed to, and constituting a part of, our State Constitution of 1851, had or has the General Assembly power or authority, by .special act, to amend such act of incorporation, in such manner as to enlarge the jurisdiction, territorially or otherwise, of such municipal corporation?

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Wiley v. The Corporation of Bluffton.

2. Conceding that the General Assembly has such power or authority, is the act of February 15th, 1873, to amend certain enumerated sections of the act of February 12th, 1851, "to incorporate the town of Bluffton," a valid and constitutional exercise of such power or authority?

We will consider and decide these two questions in the order of their statement.

1. In section 13, of article 11, of our State Constitution of 1851, it is provided as follows: "Corporations, other than banking, shall not be created by special act, but may be formed under general laws." Section 212, R. S. 1881. By this constitutional provision, construed in connection with the other provisions of the Constitution of 1851, it was certainly intended that, on and after November 1st, 1851, the General Assembly, the law-making power of this State, should have no power or authority, by special act, to create, to originate or to bring into existence, as a new corporate entity, a municipal corporation where none had previously existed; but, on and after the day named, the legislative power or authority of the General Assembly was limited, by the constitutional provision quoted, to the enactment of a general law, under which such new corporate entity might be formed. In the schedule annexed to, and constituting a part of, our State Constitution of 1851, " That no inconvenience may arise from the change in the government, it is hereby ordained as follows: * * * Fourth. All acts of incorporation for municipal purposes shall continue in force under this Constitution until such time as the General Assembly shall, in its discretion, modify or repeal the same." Section 235, R. S. 1881.

It is not controverted by appellant's counsel, as we understand his briefs of this cause, that the act of February 12th, 1851, entitled "An act to incorporate the town of Bluffton, in Wells county, Indiana," was continued in full force under and by virtue of the provisions of the fourth clause of the Khedule annexed to and forming a part of our State ConWiley v. The Corporation of Bluffton.

stitution of 1851. His learned counsel claims, however, with much earnestness and ability, that, while such act of incorporation, or special charter of the town of Bluffton, was so continued in force, no power or authority was vested in the General Assembly, by any provision of the State Constitution of 1851, to amend by special act such special charter in such manner as to enlarge, territorially or otherwise, the jurisdiction of the corporate authorities of such town of Bluffton. While, by the terms of such fourth clause of the schedule, discretionary power was clearly vested in the General Assembly to "modify or repeal" such act of incorporation, or special charter, of the town of Bluffton, so continued in force, it is forcibly contended by appellant's counsel, with much research and learning, that this power to "modify" did not authorize the General Assembly to amend, by special act, such special charter or act of incorporation, so as to enlarge the jurisdiction, territorially or otherwise, of the corporate authorities of the town of Bluffton.

It is not necessary, however, that we should pursue the arguments of appellant's counsel, or that we should examine and consider at any greater length the first of the two questions heretofore stated in this opinion. During the last twenty years, substantially the same question has been presented here for decision in a number of cases; and it has been uniformly held, that, under the fourth clause, above quoted, of the schedule or ordinance which is annexed to, and constitutes an integral part of, our State Constitution of 1851, the General Assembly is expressly authorized, by and under the discretionary power to " modify," to amend an act of incorporation, or special charter, for municipal purposes, continued in force by such fourth clause, even where the effect of the amendment would be to enlarge the jurisdiction, territorially or otherwise, of the corporate authorities of the municipality. Longworth v. Common Council of the City of Evansville, 32 Ind. 322; City of Evansville v. Bayard, 39

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