03/14/1923 Board of Public Works Minutes

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77-4 The followng eommunication received from -the City Attorney read and placed on file. , March 15,1923. Board of Public Works, City Hall, South Bend, Ind. Gentlemen: While I have received ho direct request from your Board for an opinion, I am informed by Mr. A. E. Martin, repro-spn.ting certain remonstrators against thavvacation of Chapin Street, that he was requested to subnit his authorities to me for examination I have examined the authories cited and do -net find that they -sustain the position assumed by the remonstrators. In fact, one case cited, �Windle vs. City of Valpariso , 62 Ind. Appellate,,page 3519 is strongly against them. In that case it appeared upon the fact; of the petition tit that the vacation of an alley was sought for an express purpose of enabling a mercantile concern to expand. I happen to be very familiar with the location of this alley and know that it; is right in the heart of the business district of'the city of Valpariso. As I read the opinion that case, it holds,substantially as fol lows: -- 1. Power is expressly granted to the Common Council (and in this cas to the Board2of Works) is vacate streets and alleys. 2. While this .power can be exercised only for a public use, in the absence of fraud the courts will not review. the action of the Council a Board in determining whether or not the public will be benefitted by the vacation. 3. Courts will not inquire into the motives ofathe governing body in deciding this question. 4. That a private property owner will be greatly benefitted by the proposed vacation is not material or pertinent.to the case. 5. The Common Council (or'Board of Works) will be presumed to have acted in good faith and according to law in the performance `of its duties with respect to -the vacation proceedings. 6 In the absence of fraud, the ,governing biOy having jurisdiction to determine whether the v.catfon oea s treet or alley is for public goad its ,decision is final and conslusive. I am advised also that, the remonstrators rely further upon the authority of City of Gary vs. Much, reported in 180 Ind. on page 26, I have .examined this case and find that it is not in print at all as the decision was toh the effecttht the. City 'of Gary had no jurisdiction to 'vacate one-half of the street 'lyingwithfn it s limits when the other half 'was out, side the City and 'under ther�jurisdiction of the Board of County Commissioners, My conclusion is, That if the Board of Works, acting in .good faith believe it to be -to the best interests of the public to vacate Chapin S Street, or a part, thereof, together with intersectingg alleys, and -providing ,they folloiv the law with respect tova,cat;ior_ proceedings, that their decision upon the subject is final and cannot be set aside farr any ow r reason than by showing draud. Respectfully submitted, PILED. LEWIS W. HA�iMOND * City Attorney MAR. 14,1923. BOARD OF PUBLIC WORKS. BY L. B. SLAUGHTER President. o