On Petition for Rehearing.
Montgomery, C. J.11. In support of appellant’s petition for a rehearing, gounsel insist that §4230 Burns 1901, Acts 1877, p. 22, is not within the purview of the act of March 6, 1905 (Acts 1905, p. 219), “concerning municipal corporations,” and hence was not thereby repealed. The act of 1877, supra, relates only to the disannexation of unplatted suburban lots or tracts of ground, and for that reason forms no basis or justification for the board’s denial of the petition to disannex the platted addition mentioned in this proceeding. This fact meets and disposes of appellant’s claim that under §4230, supra, the town board had discretionary power to grant or deny the petition for dis-annexation, and from its action no appeal to court was authorized.
This holding renders it unnecessary for us to decide in this case whether the act of 1877, supra, was repealed by the act of 1905, supra. The declaration in the original opinion, to the effect that the former act was repealed by section 272 of the latter act, is withdrawn, and the opinion is to be regarded as' modified to that extent. See State, ex rel., v. Ives (1906), 167 Ind. 13.
*66312. The constitutionality of section ten of the act of March 12, 1907 (Acts 1907, p. 617, §8917 Burns 1908), granting a right of appeal to the circuit court from the action of boards in these matters, was not questioned in the original briefs, and that question cannot now be raised or considered. Indiana Power Co. v. St. Joseph, etc., Power Co. (1902), 159 Ind. 42; Armstrong v. Hufty (1901), 156 Ind. 606, and cases cited.
The petition for rehearing is overruled.