Opinion
No. 18,178.
Filed August 17, 1951. Rehearing denied September 27, 1951. Transfer denied February 18, 1952.
1. MUNICIPAL CORPORATIONS — Proceedings of Council — Meetings — Ordinance Prescribing Procedure for Calling Special Meetings — Requirement Satisfied Where Quorum of Council Upon Motion Duly Carried Called Special Session. — Where, an ordinance of the city council was attacked on grounds that it was enacted by a special session of the council which had not met requirements of the municipal code as such special meetings should be called by the mayor, or by the president, or by three members of the council, but the record discloses that at a regular meeting of the council, at the usual time and place with a quorum present, it was decided upon motion duly carried that the council would meet in special session on a specified date, such action satisfied all requirements of the law in respect to the constituting of a special meeting of the council for the transaction of such business as may properly be brought before it. p. 164.
2. MUNICIPAL CORPORATIONS — Proceedings of Council — Meetings — All Members of Council Present at Special Meeting — Notice Could Have Been Dispensed With — Meeting Legal For All Purposes Within Councilmanic Authority. — Where the notice of a special meeting of the council limited the meeting to a discussion of the proposed annexation of certain lands, and the council at the special meeting placed the annexation ordinance on third reading and passage, such meeting was legal for all purposes within the scope of councilmanic authority since all of the council members were present without protest, each participated in the proceedings voluntarily, the annexation ordinance was passed by a unanimous vote, and thus the notice of the special meeting could have been dispensed with entirely; therefore, the placing of the ordinance on third reading and its passage was not ultra vires and void. p. 164.
3. MUNICIPAL CORPORATIONS — Annexation of Territory — Proceedings — Annexation of Smaller Tract Within Larger — First Ordinance Not Repealed. — When a city council, while a court action was pending concerning the annexation of certain territory, passed a subsequent ordinance and duly annexed a small tract within the territory originally sought to be annexed, the subsequent ordinance merely rendered that part of the earlier ordinance which concerned the smaller tract mere surplusage and did not repeal it, expressly or by implication, even though it contained a clause repealing conflicting ordinances previously enacted, because the two ordinances were not repugnant, the only subject matter common to both being the small tract which both sought to annex, and the slight overlapping of the lands described in the two ordinances was of no legal significance. p. 165.
From the Vanderburgh Circuit Court, Paul H. Schmidt, Special Judge.
Remonstrance action by Philip Prenzel and others, remonstrators against City Ordinance No. 1885, against the City of Evansville, opposing annexation of certain territory. From a judgment validating the annexation ordinance, the remonstrators appeal.
Affirmed. By the court in banc.
Charles J. Eichel; and Olsen Niederhaus (By Order of the Court), all of Evansville, for appellants.
William T. Fitzgerald and Jerome T. Salm, both of Evansville, for appellee.
On July 5, 1949, the common council of the city of Evansville, Indiana, enacted Ordinance 1885 whereby certain land therein described was annexed to said city. After considering a remonstrance filed by the appellants, the Vanderburgh Superior Court, by judgment entered in due course, validated such ordinance and we are asked to reverse on these grounds.
First. It is charged that the ordinance in question was enacted at a special meeting of the common council which was not called by the "mayor, or by the president, or 1. by three members" as required by Sec. 1-302 of the Municipal Code of 1940 of the city of Evansville, and therefore such meeting was not duly constituted and powerless to transact business. The record discloses that at a regular meeting of the council, held on June 20, 1949, at the usual time and place with a quorum present, it was decided upon motion duly carried that the council would meet in special session on July 5, 1949, "relative to the annexation . . . of property." This, in our opinion, satisfies all requirements of the law in respect to the constituting of a special meeting of the council for the transaction of such business as may properly be brought before it.
Second. The appellants assert that the purpose of the special meeting of July 5, 1949, as stated in the notice thereof, was limited to a discussion of the proposed annexation and 2. therefore putting the ordinance on third reading and passage was ultra vires and void. We see little merit in this contention. It appears that all members of the council were present without protest, each participated in the proceedings voluntarily and the ordinance was passed by a unanimous vote. Under such circumstances the notice, which the appellants insist circumscribed the proceedings of the council, could have been dispensed with entirely and the meeting would nevertheless have been legal for all purposes within the scope of councilmanic authority. For a full discussion of this question see P.H. Willian, et al. v. City of Evansville (1951), 121 Ind. App. 185, 98 N.E.2d 219.
Third. While this action was pending in the Vanderburgh Superior Court the common council of the city of Evansville passed Ordinance 1922 whereby a part of the 3. land included in Ordinance 1885 was annexed to the city. As Ordinance 1922 is of later date and contains a clause to the effect that "all ordinances or parts of ordinances in conflict herewith are hereby repealed" the appellants contend that Ordinance 1885 is repealed by implication. This precise question was decided adverse to the appellants' position in P.H. Willian, et al. v. City of Evansville, supra, and upon the authority of that case we hold that the slight overlapping of the lands described in the two ordinances is of no legal significance in this controversy.
Judgment affirmed.
NOTE. — Reported in 99 N.E.2d 913.