Forsyth v. Hammond
The legislation of Indiana authorizes the annexation of contiguous territory to the limits of a city with or without the consent of the owner. The statutory provisions in respect thereto, found in 1 Horner's Rev. St. 1896 (Rev. St. 1894, §§ 3658-3660), are printed in the margin. 

The city of Hammond is situated in the county of Lake, and in 1893 it instituted proceedings to extend its limits over a large tract of contiguous territory, some of which, at least, was not laid off and platted into lots. The application was denied by the board of county commissioners of Lake county, whereupon the city appealed to the circuit court of that county, and the case thus appealed was thereafter transferred by change of venue to the circuit court of Porter county, Ind., which court, upon the verdict of a jury, entered a decree in favor of the city for the annexation of the territory.

The present plaintiff was a party to these proceedings. She was the owner of about 725 acres within the area attempted to be annexed. After the decision by the circuit court of Porter county the city levied taxes on the property to the amount of $3,500, whereupon on April 29, 1895, she filed her bill in the circuit court of the United States for the district of Indiana, praying for an injunction to restrain the collection of those taxes. An amended bill was filed on May 1, 1895, upon which amended bill a hearing was had, resulting in a denial of the motion for an injunction and the dismissal of the suit. 68 Fed. 774. From such dismissal she appealed to the court of appeals for the Seventh circuit, by which court, on January 16, 1896, the decree of the circuit court dismissing the bill was reversed, and the case remanded to that court, with directions for further proceedings. 34 U.S. App. 552, 18 C. C. A. 175, and 71 Fed. 443. Whereupon the city of Hammond applied to this court for a certiorari, directed to the court of appeals, which application was sustained, and on October 19, 1896, a certiorari was ordered.

Before the filing of the bill in the United States circuit court this plaintiff with others had appealed from the decree of the circuit court of Porter county to the supreme court of Indiana, and by that court, on April 11, 1895, the decree had been affirmed. 142 Ind. 505, 40 N. E. 267. A petition for rehearing was denied on November 8, 1895. 142 Ind. 516, 41 N. E. 950. While this decision of the supreme court, though announced before the disposition of the case in the United States circuit court of appeals, has not been formally incorporated into the record by an amendment of the pleadings or otherwise, it was made a matter of consideration by the court of appeals, and has been discussed and treated by counsel in the arguments before us as a fact in the case, and to be considered in determining the questions that are presented.

The bill alleged that the plaintiff's lands were used solely for pasturage and hay and other agricultural purposes; that the real value did not exceed $100 per acre; that the land had no market value, but only one speculative and prospective, dependent upon the location, not yet secured, of manufacturing establishments whose market and offices would be in Chicago; that no part of the land had ever been mapped or platted with a view to the sale of lots; that on the entire tract there were but 21 dwelling houses, 10 of them being in a row and within about a quarter of a mile of the town of Whiting, in the county of Lake, in which town the tenants of all said houses were engaged in business and work; that the houses on the lands were four and one-half miles distant from any police station, fire-engine house, or gas lamp of the city of Hammond, so that in the nature of things no benefit could be received from the municipal government of that city; that the lands were valued for taxation by the city at the rate of $250 to $500 per acre, and the taxes thereon amounted to about $5 per acre; that the valuation was enormously in excess of the real value, and the taxes exorbitant, oppressive, and extortionate. The bill further alleged that at the time the annexation proceedings were instituted the city of Hammond did not contain more than 6,000 or 7,000 inhabitants; that it had territory about three miles long by two miles wide; that on the northern boundary, and within the limits of the city, were about two square miles of lands, no part of which had ever been laid off into lots and blocks, on one of which there was not a single house or road, and on the other but seven houses and one road; that this vacant tract was between the settled parts of the city and the lands of the complaint; that the part of the city of Hammond laid off into lots is much larger than is likely to be required for city purposes for many years to come; that the city's boundaries contained nearly 4,000 acres, and that the territory attempted to be annexed consisted of about five square miles of practically vacant lands, lying directly north of the city limits, and extending all the way from such limits to the shores of Lake Michigan. Other facts were alleged also tending to show the impropriety of the annexation of this comparatively vacant territory to the city of Hammond. It was specifically charged that the city of Hammond had a municipal debt amounting to nearly twice the constitutional limit, and that the purpose of the annexation was, by adding new property at an exaggerated valuation, to so increase the appraised taxables of said city as to lift it out of its constitutional dilemma without regard whatever to the advantages or benefits to the property so sought to be annexed. The bill further set forth the proceedings before the county commissioners and in the state circuit court, but averred that those proceedings were void because the enlargement of the limits of a city was a matter of legislative, and not of judicial, cognizance, and that it was not competent for the legislature to intrust to the courts the decision of such questions.

Benjamin Harrison and W. H. H. Miller, for Mrs. Forsyth.

Chas. H. Aldrich, for the City of Hammond.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion the court. 

Notes

3196. Extension over Contiguous Lands-Action of Council-85. The limits of any city may be extended over any lands or contiguous territory, by the consent of the owner thereof in writing, and a resolution of the common council, passed by a two-thirds vote, extending the limits of such city over such lands or territory; which written consent and resolution shall be entered at length in the records of such city; and the common council shall cause a certified copy of both to be recorded in the recorder's office of the proper county. If any city shall desire to annex contiguous territory not laid off in lots, and to the annexation of which the owner will not consent, the common council shall present to the board to county commissioners a petition setting forth the reasons of such annexation, and, at the same time, present to such board an accurate description, by metes and bounds, accompanied with a plat of the lands or territory proposed or desired to be annexed to such city. The common council shall give thirty days' notice, by publication in some newspaper of the city, of the intended petition, describing in such notice the territory sought to be annexed.

1397. Proceedings by County Board-86. The board of county commissioners, upon the reception of such petition, shall consider the same, and shall hear the testimony offered for or against such annexation; and if, after inspection of the map and of the proceedings had in the case, such board is of the opinion that the prayer of the petition should be granted, it shall cause an entry to be made in the order book specifying the territory

annexed, with the boundaries of the same according to the survey; and they shall cause an attested copy of the entry to be filed with the recorder of such county, which shall be duly recorded in his office, and which shall be conclusive evidence of such annexation in all courts in this state.

3243. Appeal from County Board-1. In proceedings before the board of county commissioners for the annexation of territory to cities and towns against the will of the owner, the petitioner and the owner of any portion of the territory proposed to be annexed may appeal to the circuit court from the final decision of the board, by filing, within thirty days, with the auditor, a bond or undertaking for the due prosecution of the appeal and payment of all costs that may be adjudged against the appellant, with sureties, to be approved by the board or the auditor. But no appeal shall be dismissed for a want of a sufficient bond or undertaking, if one shall be filed, under the direction of the court, at any time before the trial.

3244. Auditor's Duty-2. Within twenty days after filing the appeal bond or undertaking, the auditor shall deliver it, with all the other papers in the cause and a complete transcript of the proceedings of the board to the clerk of the circuit court, who shall docket it with the other causes pending therein.

3245. Trial-3. The appeal shall stand for trial, when taken during the session of the board, at the first term after the papers shall have been filed ten days, and, when taken in vacation, at the first term after summons shall have been served upon the appellee ten days before the first day of such term. The appeal shall be tried and determined as an original cause.

3246. Effect of Appeal-4. All further proceedings in the annexation of territory shall be suspended until the final disposition of the appeal. The court may make a final determination of the proceeding and compel its execution, or may send its decision to the board, with direction how to proceed, and require compliance.
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