On Petition for Rehearing.
Howard, C. J.One of the positions taken by counsel in support of their petition for a rehearing of this case is, that the circuit court had no jurisdiction of the appeal from the board of county commissioners, for the reason that the annexation of territory to a city is a legislative, and not a judicial function, and, as such, in case of unplatted lands, the board of county commissioners is given sole and final jurisdiction in the premises.
The proposition so advanced was not urged in the original argument, nor on the trial of the cause, and. is now brought to our attention for the first time; but as it is a question that affects the jurisdiction of the trial court, as also of this court, it is one that will be entertained at any time.
It may be conceded that annexation of territory to a city is a legislative function. This function is exercised by the common council when it resolves to annex certain described lands to the city, and to present a petition therefor to the county board.
It must be admitted, however, as we think, that the after proceedings had upon the petition are of a judicial nature. The petition must give the reasons why, in the opinion of the council, the annexation should take place. The sufficiency of such reasons, and whether they in fact exist, calls for the decision of the tribunal appointed *517to hear the petition. Notice of the presentation of the ■petition is also provided for, and adverse parties are thus brought in. Whether the proper preliminary steps have been taken, whether the reasons given in the petition are true, and are sufficient, seem to be questions calling for a judicial examination and decision.
In a similar case, Grusenmeyer v. City of Logansport, 76 Ind. 549, it was said by Woods, J., speaking for this court, that “The decision of the board,, in such a case, is judicial, and not merely administrative or legislative. ”
But if the board, in considering and deciding upon the petition, acts in a judicial capacity, certainly the Legislature may, as it has done in this case, provide for an appeal to the courts, to determine whether the city council, and the county board have complied with the .statutory requirements in the action taken.
It is the law itself, as has been said, that fixes the conditions of annexation; and the office of the board and of the court is to determine whether the conditions so prescribed by the law have been complied with. The Legislature has expressly provided for such judicial determination by the board, and for an appeal therefrom do the courts; and this court has frequently recognized dhe right to such appeal. Section 4224, R. S. 1894 (section 3243, R. S. 1881). Catterlin v. City of Frankfort, 87 Ind. 45 ; Chandler v City of Kokomo, 137 Ind. 295 ; Wilcox v. City of Tipton, 42 N. E. Rep. 614; see also Windfall, etc., Co. v. Emery, 142 Ind. 456; and see City of Wahoo v. Dickinson, 23 Neb. 426.
Indeed, by thus expressly providing for an appeal to the courts in annexation proceedings, the Legislature has indicated its will that the courts should supervise the proceedings, to the end that the annexation shall be carried into effect as the law directs.
In Forsythe v. City of Hammond, 142 Ind. 505 (68 *518Fed. Rep. 774), Baker, J., in passing upon an application made to the United States Circuit Court for the district of Indiana, by one of the appellants in the case at bar, to enjoin the appellee from collecting taxes upon the lands; annexed in this proceeding, speaking of the question now under consideration, said; “The power to hear and. determine whether the conditions prescribed by law for the creation, enlargement or contraction of a municipal body exist, is judicial in its nature, and may be appropriately conferred upon the courts. The creation, enlargement or contraction of a municipal body is not the act of the court, but is the act and result of the law. The court simply determines whether the conditions are present which authorize the creation of a municipal body, or the enlargement or contraction of its limits j and, when these conditions are judicially ascertained, the law, ex proprio vigore, creates the municipal body, or enlarges or contracts its boundaries.”
Counsel next repeat the contention that the action of the common council of East Chicago, in attempting to annex to that city certain of the lands here in controversy, without first having secured the assent of the owners of that part thereof adjacent to the city, cannot be attacked collaterally in this case. We cited in the original opinion numerous authorities to the proposition, that the jurisdiction of an inferior tribunal, as a common council, may be attacked collaterally, and evidence offered to show that the tribunal did not have jurisdiction of the subject-matter or of the parties. We have attentively read the acute analysis made of those authorities by counsel, and are still satisfied that the authorities so cited do establish the truth of the proposition stated.
We are inclined to think that counsel have not carefully distinguished between facts as to the jurisdiction *519of a body, and facts as to the proceedings and acts of that body after jurisdiction is shown. If there is jurisdiction, then the decision that follows is conclusive, except on direct attack. But jurisdiction itself may' always be inquired into; and it is only after jurisdiction is established, both of the subject-matter and of the person, that the decision of the tribunal will be invulnerable to collateral attack. As said by this court in Board, etc., v. Markle, cited in the original opinion, ‘ ‘ The facts which it is said must be shown to exist before the matter can be within the jurisdiction of an inferior court, and which can be enquired into collaterally, are such as, in the absence of which, the court cannot rightfully hear and determine any question touching the matter in controversy. Hence, a recital in the record of such facts may be shown to be false. ” See also State, ex rel., v. Hudson, 37 Ind. 198. As bearing upon the question, see further, Rape v. Heaton, 9 Wis. 301 (76 Am. Dec. 269); Thompson v. Whitman, 18 Wall. 457; Withers v. Patterson, 27 Tex. 491 (86 Am. D. 643); Scott v. McNeal, 154 U. S. 34; Works, Courts and their Jurisdiction, sections 20, 23, 25, 26.
In the case at bar, it is riot doubted that the owners of the lands adjacent to the city of East Chicago, and which it was attempted to annex to the city, had never assented to such annexation, but that the only petition for annexation presented to the common council was by owners of lands not adjacent to the city; yet the claim is made that the question of the right of the council to annex such adjacent lands, and also the nonadjacent lands, is foreclosed by the record. The city council assumed that the petitioners for annexation were the owners of the lands adjacent to the city, and it is said that this assumption is conclusive, although, in fact, the owners of adjacent lands did not assent to such *520annexation. If that contention were good, why could not any person go before a city council, claiming falsely to be the owner of adjacent lands, and petition for their annexation to the city; and if the record of the common council should show that upon such petition the lands were annexed, how could the decision be collaterally called in question? The law, however, gives the council jurisdiction to annex adjacent lands only, on the written assent of the owners. _ It is clear that the common council had no jurisdiction of the subject-matter.
In cases cited in the original opinion, we think it is shown that this court has more than once decided practically the same question here raised; namely, that attempts at annexation of lands to cities made by common councils not having jurisdiction, are void, and may be attacked collaterally as well as directly. City of Indianapolis v. McAvoy, 86 Ind. 587; City of Delphi v. Startzman, 104 Ind. 343; City of Indianapolis v. Patterson, 112 Ind. 344.
Counsel devote much argument and research to show that where the jurisdiction of an inferior tribunal depends upon a fact which such tribunal is required to ascertain and settle by its decision, such decision, in general, is conclusive. It needed but a statement of that proposition to establish its truth. But it does not follow that such tribunal by merely claiming jurisdiction can establish it.
If the law fixes what is necessary to acquire jurisdiction, the tribunal cannot take jurisdiction not so authorized by law.
The law requires notice to parties who are to be sub-' ject to the decisions of the tribunal. Jurisdiction, therefore, cannot be taken without such notice. But as the tribunal must itself decide whether the notice is sufficient *521its decision on such sufficiency is conclusive.
So when a petition is to be filed, such petition is necessary to give jurisdiction; and the tribunal by finding that a petition was filed, when in fact it was not, could not take jurisdiction. But as the tribunal is the only body to pass upon the sufficiency of the petition, whether it is in proper form, has the requisite number of signers, and whether the persons signing have the proper qualifications-, etc., its decision on such questions is final.
Stoddard v. Johnson, 75 Ind. 20, one of the leading cases on this subject, and relied upon by counsel, is in harmony with this holding. That case decides that the presentation of a petition for the improvement of a highway gave the county commissioners jurisdiction over the subject-matter of the petition, and that whether the petition was in all respects sufficient was a jurisdictional question which the board had a right to decide for itself. The court, however, is careful to say that it is not to be understood as holding that ‘ ‘ any petition, however defective or irrelevant, will be deemed sufficient to invoke the jurisdiction of the commissioners to decide upon its sufficiency and to impart validity to that decision as against collateral attack.”
The correct rule is stated in the same case: “That once the jurisdiction of an inferior tribunal is established over the subject-matter of, and the parties to, a proceeding which may be had before it, the same presumptions are indulged in favor of the regularity of its action as prevail in favor of the action of the courts of general powers.”
Had the common council in the case before us, acquired jurisdiction over the lands to be annexed and lying adjacent to the city, and had it also acquired jurisdiction over the owners of such lands, then the subsequent proceedings, however defective, would not be void. But *522not having acquired jurisdiction over the lands or over its owners, the annexation proceedings were a nullity.
Filed November 8, 1895.Whether the right of way of the Chicago Calumet Terminal Railway company was a fee simple or an easement is not material here. If the strips of land belonging to that company, by whatever name the title may be called, are not within the corporate limits of the city of East Chicago, it is very certain that the land of the petitioner company, and which is separated by those strips from the city limits, is not adjacent to the city. But it cannot rightfully be claimed that these strips'are within the limits of the city .of East Chicago. They were never annexed, either on petition of their owners or by act of the county board. The city could not levy taxes or street and sewer assessments upon these strips of land, could not make streets or alleys across them, or in fact exercise any jurisdiction whatever over them. The strips are outside the limits of the city, and completely separate the lands of the Improvement company from the city limits. . How then could the city annex those nonadjacent lands of the Improvement company ? The statute expressly provides that the lands to be annexed to a city shall be adjacent. Had the city jurisdiction of the subject-matter ? Could the city by declaring the lands of the Improvement company to be adjacent make them adjacent ? If the common council could annex lands separated from the corporate limits by a right of way one hundred feet across, why might it not annex lands a mile distant from the city ? The conclusion is irresistible that the city had no jurisdiction of the subject-matter; the lands of the petitioner company were not adjacent to the city, and could not therefore be annexed.
The petition for a rehearing is overruled.