matters of discretion, whether legislative or judicial, unless, it may be, in cases of gross abuse of judicial discretion. On the contrary, by the Grusenmeyer Case, and by many other decisions in Indiana and elsewhere, the right of appeal from discretionary orders is denied. Hanna v. Board, 29 Ind. 170; Moffit v. State, 40 Ind. 220; City of Ft. Wayne v. Cody, 43 Ind. 200; Alexander v. Road Co., 44 Ind. 436; Catterlin v. City of Frankfort, 87 Ind. 45; Hunt v. State, 93 Ind. 311; Waller v. Wood, 101 Ind. 139; Platter v. Board, 103 Ind. 360, 374, 2 N. E. 544; Farley v. Board, 126 Ind. 468, 26 N. E. 174; Bunnell v. Board, 124 Ind. 1, 24 N. E. 370; State v. Board of Com'rs of Tippecanoe Co., 131 Ind. 90, 30 N. E. 892; Motz v. City of Detroit, 18 Mich. 495; Owners of Ground v. Mayor, etc., of Albany, 15 Wend. 374; Com. v. Woods, 44 Pa. St. 113; Foster v. Neilson, 2 Pet. 253; Jones v. U. S., 137 U. S. 202, 11 Sup. Ct. 80; In re Cooper, 143 U. S. 472, 12 Sup. Ct. 453.

By the act of May 31, 1879, a right of appeal to the circuit court "in proceedings before the boards of county commissioners for the annexation of territory to cities and towns against the will of the owner" was expressly given both to the petitioner and to the owner of any portion of the territory proposed to be annexed; but manifestly it was not intended thereby to take away or modify the discretion with which the act of 1867, § 3660, supra, clothes the board, nor to give an appeal from any decision of the board in so far as in the particular instance it was discretionary. But in so far as the board, in any such case, determines questions of fact which are essential either to the jurisdiction of the board in the proceeding or to the right of annexation, as, for instance, the fact and sufficiency of notice, contiguity and ownership of lands, or whether the lands. had been platted, its action is of a judicial character, and may properly be made subject to review on appeal; that is to say, if the board should order an annexation of territory which was not contiguous, or of contiguous territory without proper notice of the proceeding having been published, an aggrieved owner of land might appeal; or, on the other hand, if, upon proper petition and notice, the board should order the annexation of only a part of the land sought to be annexed, or should deny the petition in toto, putting its decision expressly and solely upon the ground that the territory was not contiguous, or that the names of the true owners of the land were not given, or that the notice was insufficient, or that the lands had been platted by the owner before the proceedings were commenced, the appeal, doubtless, might be prosecuted by the petitioner. But in respect to the reasons for annexation, in so far, at least, as they should be designed, and be of a nature, only to affect the opinion of the board in respect to the propriety or policy of the proposed annexation, the statute cannot reasonably be said to have been intended to give an appeal, and, if so intended, it was to that extent ineffectual, as an attempt to give the courts a legislative power. See Commissioners v. Griffin, 134 III. 330, 341, 25 N. E. 995. In disposing of any such appeal, the circuit court, it would seem clear, must confine itself to questions v.71F.no.4-29

of a judicial character, and, according to the circumstances, enter a final order, or send the case back to the board of commissioners, but in no case may order annexation unless the record shows that in the opinion of the board, if the proceedings were regular, the prayer of the petition ought to be granted.

But at this point we are confronted with the decision of the supreme court of Indiana, affirming the judgment of the Porter circuit court, whereby the annexation was ordered, which we are asked to treat as null and void. In the original opinion, which was delivered prior to the hearing before us, the question of the jurisdiction of the courts over the subject-matter was not mentioned (40 N. E. 267); but, in the opinion upon a petition for a rehearing (41 N. E. 950), the court says:

"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, and 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 to 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 to the courts, and this court has frequently recognized the right to such appeal. Rev. St. 1894, § 4224 (Rev. St. 1881, § 3243); Catterlin v. City of Frankfort, 87 Ind. 45; Chandler v. City of Kokomo, 137 Ind. 295, 36 N. E. 847; Wilcox v. City of Tipton (at this term) 42 N. E. 614. See, also, Manufacturing Co. v. Emery (at this term) 41 N. E. 814; City of Wahoo v. Dickinson, 23 Neb. 426, 36 N. W. 813."

That the Grusenmeyer Case is not similar, but radically differ ent, has already been explained; and, while the other cases referred to recognize the right of appeal in proceedings for annexation, they do not countenance appeals in respect to matters of discretion. On the contrary, in Catterlin v. City of Frankfort the disputed

questions were of a judicial character, and, in the course of the opinion, it is said that, the statute not having prescribed what reasons for the proposed annexation shall be set forth in the petition, "their sufficiency is necessarily left to the sound discretion of the authority passing upon the petition"; that is to say, to the board of commissioners.

This expression of the Catterlin Case is quoted and reaffirmed in the later cases cited. In Chandler v. City of Kokomo, after quot

ing it, the court adds:

"If, as indicated, the sufficiency of the reasons is a question within the sound discretion of the authority to which they are addressed, we could not review the exercise of that discretion, unless, possibly, we should find that it had been palpably abused."

And, to the same point, in Manufacturing Co. v. Emery it is said:

"If we could review the exercise of discretion as to the sufficiency of the reasons stated for annexation when it had been palpably abused,- -a question we do not decide.-we would be compelled to adjudge that there was no such abuse in this case."

It is evident that in these utterances it was assumed that the discretion referred to was a judicial discretion, and, if that were so, there might, doubtless, be a review in cases of palpable abuse; but, once it is conceded to be a legislative discretion, its exercise by the power which possesses it can be reconsidered or revoked, as we suppose, only by the same or a higher legislative power. The cases cited, except, perhaps, that from Nebraska, decide nothing to the contrary.

It being conceded that the annexation of territory to a city is a legislative function, the proposition that under the statute "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," is, we think, untenable. Legislative power over a subject, though delegated to a subordinate agency, must, in the nature of things, be dominating; and, if it be regularly exercised, the result must be as conclusive as if accomplished by direct legisla tive enactment. If it be subject to any other power, it is not legisla tive. In cases of the annexation of unplatted lands against the will of the owner, the common council does not "resolve to annex." It has power, and can lawfully resolve, simply to petition for the annexation of territory of defined limits, and only in respect to the limits of the territory has it a discretion which is final or conclusive. A board of commissioners in Indiana cannot order the annexation of less or more or different territory than that described in the petition (City of Peru v. Bearss, 55 Ind. 576); but the final power to determine whether the annexation asked shall be ordered is given to the county board, and is made wholly discretionary. The vital distinction seems to have been overlooked that this statute does not in all particulars "fix the conditions of annexation," and it is not the office of the board simply to determine "whether the conditions so prescribed by the law have been complied with." The proceedings may be in all respects regular, and the board may find that the reasons

for annexation set forth in the petition are true as stated, and yet may disregard them, and either refuse or grant annexation upon considerations not mentioned in the petition. Without a petition nothing can be done, but, once a petition has been presented, the board acquires control of the subject-matter, and, upon proper notice, may order the annexation, "if, after inspection of the map and of the proceedings had in the case, such board is of opinion that the prayer of the petition should be granted"; that is to say, the board is given unqualified discretion in respect, to final action upon a subject which is confessedly legislative. It is therefore necessarily a legislative discretion, over which, consistently with the constitutional distribu. tion of powers, the courts could not be given and cannot assume control. Platted lands contiguous to a city may be annexed simply by resolution of the common council, and unplatted lands, with the consent of the owner, may be so annexed. For such cases it may be true, in a sense, that the legislative function and discretion are bestowed on the common council, or on the council and owner of the land together, though it may be more accurate to say, in respect to that class of cases, as the court below said more generally, that there is no delegation of legislative power; the platting of the land, or the consent of the owner, and the annexing resolution of the common council being merely the antecedent facts upon which the statute ex proprio vigore effects the annexation. It is immaterial here, except for the purposes of comparison or contrast, which of these views is the correct one. Let it be conceded that in such a case the legislative function is exercised by the common council when it resolves to annex. Such an act bears a legislative aspect, because it is discretionary and conclusive in respect to a legislative subject.

It was in accord with this view that the court in Chandler v. City of Kokomo, supra, declared that "the only feature in which the jurisdiction of the common council and that of the board of commissioners were distinguished was in the one fact as to whether the lands to be annexed were platted or not," and then added: "This fact was clearly a jurisdictional fact, and it was, as such, not only necessary to be alleged, but also to be proven." That is to say, if the jurisdiction of one is legislative, so is that of the other; the common council being empowered to annex platted lands, or unplatted lands with the owner's consent, and the board being authorized to act only in respect to unplatted lands.

In the case of City of Delphi v. Startzman, 104 Ind. 343, 3 N. E. 937, the court says:

"Our decisions have uniformly declared that in such a case as this [that is, where the territory is not platted] the city must petition the board of county commissioners, and secure an order from that body. This

case does not belong to the class over which the common council has jurisdiction. On the contrary it belongs to a class over which the board of commissioners has exclusive, original jurisdiction."

In the same opinion is found the following statement, which treats the subject as political or legislative:

"The question is not simply one of relief from taxation, but the question is as to the right to compulsorily change the property of the citizens from the

territorial limits of one political corporation into those of another and different corporation. It is, in fact, a question as to the right to supplant one local government by another.”

In Stilz v. Indianapolis, supra, it was explicitly held that the statute which we are considering "should be closely construed, because it is a delegation of legislative power." But, if thereby the boards have legislative power, it must consist in the discretion given them to grant or refuse a petition for annexation. No other power is given which can be called "legislative," unless the dictionaries and adjudications alike are to be disregarded.

The hearing upon this appeal had been had before the decision upon the petition for a rehearing in the state court was rendered, and, before we had knowledge of it, we had in consultation agreed upon the opposite view. That decision (in which, for the first time, the court has recognized the right of appeal to the circuit court from a decision of a county board refusing to order an annexation of territory to a city), it is clear, was the result largely of a misapprehension of the Grusenmeyer Case, and in part of the decision below in this case, which itself is due partly to the same misapprehension, and partly to the supposed effect of the constitutional inhibition against special legislation,-a matter which we do not regard as of controlling significance. Under the circumstances, are we required to yield our judgment to the authority of that ruling? We think it indisputable that the creation of municipal corporations, including the changing of municipal boundaries, like the law of real estate, is a local subject, in respect to which the federal courts follow the established local rules. "The well-settled rule in this court," said the supreme court in Luther v. Borden, 7 How. 40, "is that the courts of the United States adopt and follow the decisions of the state courts in questions which concern merely the constitution and laws of the state." See, also, Bucher v. Railroad Co., 125 U. S. 582, 8 Sup. Ct. 974. The subject was more fully considered in Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. 10, where, in respect to the liability of stockholders under a statute of Missouri, the supreme court of that state had passed upon the questions involved in the case, "and [as here] on the very transaction" which the federal supreme court was considering, and the latter court, with an avowed purpose to obviate misapprehension of expressions used in earlier decisions, said:

"We do not consider ourselves bound to follow the decision of the state court in this case. When the transactions in controversy occurred, and when the case was under the consideration of the circuit court, no construction of the statute had been given by the state tribunals contrary to that given by the circuit court. The federal courts have an independent jurisdiction in the administration of state laws, co-ordinate with, and not subordinate to, that of the state courts, and are bound to exercise their own judgment as to the meaning and effect of those laws. The existence of two co-ordinate jurisdictions in the same territory is peculiar, and the results would be anomalous and inconvenient but for the exercise of mutual respect and deference. Since the ordinary administration of the law is carried on by the state courts, it necessarily happens that, by the course of their decisions, certain rules are established which become rules of property and action in the state, and have all the effect of law, and which it would be wrong to disturb. This is especially true with regard to the law