Dissenting Opinion
Bobbitt, J.I dissent from the majority opinion for the following reasons:
Courts in Indiana do not have the jurisdiction or the power to tell a lower tribunal in whose favor or in what manner a judgment shall be rendered. State ex rel. Beatty v. Nichols, Sp. J., etc. (1954), 233 Ind. 432, 120 N. E. 2d 407; Schuble v. Youngblood (1947), 225 Ind. 169, 173, 73 N. E. 2d 478; State ex rel. Burton v. Gelb (1947), 225 Ind. 330, 334, 75 N. E. 2d 151; State ex rel. Ripa v. Lake Superior Court (1942), 220 Ind. 436, 438, 43 N. E. 2d 871; The State ex rel. Reynolds v. The Board of Commissioners of Tippecanoe Co. (1874), 45 Ind. 501, 504. Nor will a writ of mandate be granted to control the discretion of a person, board, commission or tribunal. Karras, Minor, etc. v. Mar. S. Ct., etc., et al. (1956), 235 Ind. 578, 581, 136 N. E. 2d 16; State ex rel. Tomlinson v. Jeffrey (1952), 231 Ind. 101, 104, 107 N. E. 2d 1; The State ex rel. Fry v. The Board of Commissioners of Martin County (1890), 125 Ind. 247, 250, 25 N. E. 286; The State ex rel. Reynolds v. The Board of Commissioners of Tippecanoe Co., supra.
The purpose of §246 and §247 of ch. 129 of the Acts of 1905, being* §48-801 and §48-802, Burns’ 1950 Replacement, was to give the cities and towns some *665control over territories which persons might from time to time seek to annex to and make a part of a city or town. If the only power given the town board by the provisions of §48-802, supra, is to examine the plat of the proposed subdivision for the purpose of ascertaining whether or not “the streets and alleys, therein shown,” are as wide as, and coterminous with, the streets and alleys of that part of the town to which it adjoins, then it seems to me that the Legislature has imposed upon the town board a useless task. It could have made such provision by statute, by providing that any tract of land may be annexed to a city or town when it is shown by the plat of the proposed subdivision that the streets and alleys are as wide as, and coterminous with, those of that part of the city or town to which it adjoined, without putting the party seeking to annex and the city or town officials to the trouble of “rubber stamping” the proposed annexation, if these are the sole matters that must be shown to be true.
There are many other reasons why additional territory should not be annexed to a city or town without the approval of the proper officials, and they are so obvious that I will not extend this opinion by enumerating all of them.1
In my opinion, when the statute authorized the town board to approve or disapprove the plat “after examination duly made,” it placed upon such board the duty and conferred the power to do more than simply ascertain if the streets and alleys were as wide as, and coterminous with, those in that part of the town which the proposed subdivision would adjoin. It will be noted that even this requirement is not *666mandatory, but the board may (not shall) require such to be done; thus, leaving even this matter within the discretion of the board.
Even though the streets and alleys in the proposed addition herein are the same width and coterminous with those of that part of the town of Dyer which the proposed addition adjoins, a court does not have the power or authority to mandate the town board of Dyer to approve the plat here involved. To do so would be an arbitrary and unlawful violation of the legislative power by the judicial, contrary to Art. 3, §1 of the Constitution of Indiana.
Neither the question of proper standards nor the constitutionality of §§48-801 and 48-802, supra, was raised in this action.
I would reverse the judgment of the trial court.
Jackson, J., concurs.. See: Rhyne, Municipal Law, pp. 34-36 for other reasons for refusing tho annexation of new territory.