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REGULAR MEETING APRIL 25TH, 1955
<br />REPORT OF CITY ATTORNEY ON PROPOSED F.E.P.C. ORDINANCE (Continued)
<br />In the case of City of South Bend vs. Chicago, South Bend and Northern Indiana Railway Company reported in
<br />179 Ind. 455 the Supreme Court of Indiana reaffirmed previous decisions of the Supreme Court to the'-effect
<br />that municipal corporations can exercise only (1) powers granted in express words, (2) those necessarily or
<br />fairly implied, or incidental to the powers expressly granted; and, (3) those essential to the declared
<br />objects and purposes of the corporation. It further held that no incidental powers are implied except those
<br />essential to the continued existence of the municipality and to the accomplishment of the purposes of its
<br />creation, and doubtful claims of authority are resolved against the corporation. Also, "where a statute
<br />enumerates specific powers of a city, with reference to a certain subject, a power not enumerated is
<br />presumably withheld.?
<br />An examination of the Acts of 1945, Chapter 325, as amended by the Acts of 1953, Chapter 217, being the
<br />State F.E.P.C. LM4, and the Acts of 1905, Chapter 129 entitled "General Powers of Council" fail to reveal
<br />any express or implied authority whatsoever for the enactment of such an ordinance.
<br />Both Mr. DuComb and I have carefully examined quite a number of decisions of the Indiana Supreme Court and
<br />have reviewed Opinions of the Attorney General of Indiana and we are unable to find statutory authority for
<br />the enactment of the ordinance in question. Since a municipal corporation has no implied powers except those
<br />directly and immediately appropriate to the exercise of an express power and since we are unable to find express
<br />authority, it is our opinion that the enactment of this ordinance kould;:be illegal.
<br />Respectfully submitted,
<br />I. A. HURWICH
<br />IAH /pm City Attorney
<br />Councilman-Korpal made a motion that the report be accepted and placed on file. Councilman Hahn seconded the
<br />motidn., Motion carried.
<br />Mr. J. Chester Allen, Attorney, submitted a brief to the Council. The following spoke in favor of the
<br />legality of the proposed F.E.PC.Ordinance: Messrs, J. Chester Alley, William Morris, Stanley Ladd, Jesse
<br />Dickinson, Otto Pozgay, Rev. Erwin Gaede�, Charles,Dempsey, Charles Wills and Howard Warner.
<br />Councilman Korpal,made a motion that the brief submitted by Mr. Allen be accepted and placed on file.
<br />Councilman Muszynski seconded the motion. Motion carried.
<br />Councilman Niezgodski made a motion that the ordinance be presented to the Council for introduction on May
<br />9th. Councilman Muszynski seconded the motion. Motion carried by a roll call vote of 8 ayes - 0 nays.
<br />REPORT OF CITY PLAN COMMISSION
<br />Honorable Common Council
<br />City of South Bend April 12, 1955
<br />South Bend, Indiana
<br />Gentlemen:
<br />The attached ordinance amending Ordinance No. 3702 and creating a new and additional section to the Zoning
<br />,Ordinance, to be known as the "Planned Shopping Center District" was regularly advertised under date of
<br />:'March 8, 1955. It was given public hearing on March 17, 1955.
<br />RLH:aed
<br />Attachment
<br />Very truly yours,
<br />CITY PLANNING COMMISSION
<br />Robert L. Huff
<br />Director
<br />Councilman Korpal: made a motion that the report be accepted and placed on file. Councilman Muszynski seconded
<br />the motion. Motion carried.
<br />ORDINANCE
<br />AN ORDINANCE AMENDING ORDINANCE NO. 3702 COMMONLY
<br />KNOWN AS "THE ZONING ORDINANCE OF THE CITY OF SOUTH
<br />BEND, INDIANA."
<br />The ordinance was given first reading by title only. Councilman Korpal made a motion that the ordinance be
<br />referred to the Ordinance Committee, namely, Councilmen Hahn, Erler and Korpal, for further study. Councilman
<br />Bestle seconded the motion. Motion carried.
<br />REPORT OF CITY PLAN COMMISSION
<br />Honorable Common Council
<br />City of South,Bend
<br />South Bend, Indiana
<br />Gentlemen:
<br />April 22, 1955
<br />The attached ordinance amending Sections 3, 3A and 4 of Ordinance No. 3702, was legally advertised under
<br />date of April 11, 1955, and given public hearing under date of April 21, 1955.
<br />After due consideration the Commission found that the benefits accruing to the community far outweighed the
<br />inconvenience caused the drivers of such trucks, and that the parking of such facilities was completely
<br />incompatible in a residential district. It was, therefore, moved, seconded, and carried that the ordinance
<br />be recommended favorably to the Common Council.
<br />RLH:aed
<br />Attachment
<br />Very truly yours,
<br />CITY PLANNING COMMISSION
<br />Robert L. Huff
<br />Director - Secretary
<br />Councilman Korpal made a motion that the report be accepted and placed on file. Councilman Hahn seconded
<br />the motion. Motion carried.
<br />r.
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