*1 Camp Hdw., et al. etc. Foltz, Co. Van Indianapolis City al. et 29,293. December Filed 1955.] [No. *4 Howard, Moores, Joseph Quinn, Merrill M. M. Thomas appellants, L. Foltz and Gerald Indianapolis, for Iron Co. Camp Hardware & Van Cook, Cook, Jr. and Bose Bose, Charles W. Lewis C. Indianapolis, appellants. Buchanan, other & Greenfield, Davis, appellant, John B. George Elmore. S. *5 Rocap, Rocap, Rocap, Rocap, E.
James John T. Reese Krieg. Robb, Indianapolis, appellant & for F. William Townsend, Jr., Indianapolis, appel- Earl C. for lants, Garrigues. Burford Danner and Helen D. Steers, General, Attorney George Jeffrey,
Edwin K. B. Attorney General, Deputy Attorney appellee, for Gen- eral, State Indiana. Ward, Corporation Counsel,
Palmer K. Frank X. Haupt, City Attorney, Northrup, Arthur H. Assistant City Attorney, Indianapolis, Indiana. Ging, Greenfield,
Waldo C. appellees. for other McCord, D. Harry Ice, Brewer, Robert T. David N. Risch, Robert Ross, McCord, D. and Miller, Ice & Counsel, Indianapolis, all of Indianapolis Civic Progress Association, Inc. Amicus Curiae. appeal J. judgment This isan from a
Arterburn, in two suits consolidated in the lower court for trial. brought by One appellant, against suit was Foltz, appellees, City above named Indianapolis al., et and brought by action Camp other Van Hardware against & litigation Iron appellees. Co. the same This proceedings arises out of under the First-Class Cities Parking being Act, Off-Street 261, pp. Acts eh. 941, 962, (§§48-8421—48-8443) , amended, (§48-8430 as Replacement Burns’ 1950 (hereinafter Supp.]) [1955 Parking Act).” referred to as “Off-Street Parking Act, brief, empowers The Off-Street through city Commission, acquire real estate proceedings otherwise, condemnation and develop lease, property; parking or sell it for off-street lots buildings, development issue bonds for the object off-street facilities. of the purpose its to be the act states reduction and relief of congestion on the traffic streets. appellants complaints in their ask declara-
tory judgment City Indianapolis, acts (hereinafter “City”), referred to the Indian- apolis Parking and the Indian- Off-Street Commission apolis Parking, Department (hereinafter of Off-Street “Department” referred to as “Commission” and re- spectively), with the condemnation of connection thereunder, property, proceedings certain the leas- *6 ing, bidding, proposed the bond under the and issue Parking illegal Act, be declared and unlawful. Off-Street court, appellants Before trial in the lower the other intervened, complaints herein to those and filed similar asking original equitable plaintiffs, for of the and also challenging by way injunction, the relief constitution- Parking ality Act. of the Off-Street brought by in appellants the This suit individual is namely: capacities, As the of real estate owner various furnishing Indianapolis, parking facilities in downtown generally; the of the real estate public as owner to the subjected 1” to the condemnation referred to as “Site parking for use as proceedings herein and now leased generally; estate real as the owners for the litigation 2” which to in this as “Site referred subject proceedings and which herein of condemnation by such use parking lot leased as a is now Indianapolis; City taxpayers of the appellants; as charges parking parks pays meter on and one who as Indianapolis, operates and one who city streets garages public use in the and lots other similarly groups Indianapolis; and on behalf City of situated. finding special entered request, trial court
Upon finding, conclusions of law. The and conclusions of facts judgment lower court declared of the lawof proceedings constitutional, thereunder and the act appellees proper the law in accordance with respects. in all assign- propriety
The and technical correctness of challenged ment of is not errors here. It included the overruling trial, of the motion for new that decision was sustained sufficient evidence contrary specifications to law and the additional that the court conclusions of law. erred its give appellants fail briefs of the a condensed except pertains recital of the evidence meetings declaratory of the commission at which the resolution for condemnation was considered legality challenged by appellants. which is certain Hence, insufficiency we no have issue of the findings except par- evidence to sustain as to question. ticular spe- We are otherwise limited to finding cial of facts and conclusions law based there- questions the consideration of the various raised appeal. in this parties questions briefs of have resolved the categories presented
here principal into four as follows: constitutionality Parking 1. The Off-Street *7 Act, gives which the Commission the to condemn property private opera- and take to be leased sold to parking, deprives tors for off-street but the Commission any power charges to control of the rates and to the parking privileges. for such legality leasing the Commission’s acts in parking purposes the real estate for adopting without specifications type building, to the with reference operation terms; manner of various other calling upon for in bidders offers which the bidders large part of specified a the terms for consideration of Commission; legality the of the the Commission’s acts therewith, hiring connection for of an in architect specifications procure plans and under the terms one accepted of the offers for construction building on one the sites. meeting validity
3. The of the Commission declaratory adopted at which the resolution was for condemnation of real estate. legality by proposed
4. The bond issue City and Commission. questions up take
We shall these in the order enumer- ated.
I. municipally in is settled law Indiana that the use of property parking owned is use off-street property. municipality operates if This Phillips al. Val in et decided Officials of etc., paraiso, Ind. et al. opinion Justice 2d in an written Chief N. E. case, however, did not involve con Bobbitt. That city leasing facilities demnation or operation by others. congestion relieve traffic
Off-street facilities resulting streets, number of on from the increased not fact that streets were motor and from the vehicles traffic, carry day originally present create out to laid legisla- subject of valid is matter a situation objective purpose be the tion. This stated to legislation Burns’ 1950 question. §48-8422 through decisions, the cen- Replacement. The court conditions, changing recognize turies, economic that exist- were and businesses create new uses times, and that certain contemplated in earlier ence or public interest with a affected are businesses kinds of regulated. may they the extent 113, 24 L. Ed. (1876), 94 U. S. Illinois Munn v. In page 125: court said Eng- customary in it has been exercise “In their country immemorial, and in this time *8 from land colonization, regulate ferries, from its first com- carriers, millers, hackman, bakers, mon wharfin- gers, maximum of innkeepers, etc., doing and in a so to fix charge made for services ren- dered, furnished, accommodations and articles sold. day, many To this States statutes are be found in subjects; upon some or all and we these yet successfully think it has never been contended legislation such came within of the con- against prohibitions stitutional interference with private property.” changed Means transportation and methods of have from the time of canals and In horse-drawn vehicles. days mills, inns, ferries, warehouses,
the earlier livery stables and other like businesses were public calling classified aas or as “affected with interest,” by public necessity. a reason economic fine-spun age newer creations this are interwoven past, yet with the dead fabric of the same basic principles apply. logically It could be said that garages today category warehouses, fall within the livery stables, originally. inns The first test calling public public a or “business affected a with necessity. was that of economic interest” Univ. Penn. 411; Illinois, supra (1876), Munn L. Rev. 94 U. S. 24 Ed. L. Hockett v. The State 250, 5 E.N. agency may acquire
A state property by or its eminent use, public may domain private authorize acquire individual property, if it is to public to a be dedicated use and falls within the group historically of activities classified as a calling public or one affected with a interest. although businesses, privately owned, given Such are domain, eminent with the attendant obli- serving gation discrimination, without Westport rate. at a reasonable Stone Co. v. Thomas *9 (1911), 319, 406; N. E. Miller 94 v. Southern 370, (1916), Ind. 111 E. Power Ind. N. Co. case, acquire City this for to is contended in the 2) (referred the real to as estate involved Sites through agencies pri- it to a its and to lease it or sell twenty parking purposes to vate limited individual taking years property proposed, for a as the is argument use, private public use. This is for a but finding compelling here, shows particularly because sought property appellants own to be that of the some being parking purposes, taken, is used for which now amendment under the 1953 and further because Parking Act, Off-Street power no in such res- “The Commission shall have or to determine or set the amount olution otherwise charges 1949, public to
of ch. made . . .” Acts being 261, §10, 941; §2, p. 908, p. 1953 ch. Supplement. Burns’ 1955 §48-8430 is, question or of the then whether The substance taking city, private after not the use becomes when the property, proposed appellants’ estate, real leases right herein, the lessee’s rates no to control retains (except operation public in the interest manner of parking pur- that used for it shall be restriction years). poses It is contended that period private into property back control the falls without such longer to use. no dedicated use and is extensively discussed the herein have All briefs including Indiana, states, redelopment laws of different acquisition property in order to authorize grant blighted and slum areas. These laws eliminate private part property to all of such or sell redevelopment plans individuals, have been after against upheld laws have been consummated. Such taking private prop- they permit contention give it to order another. person in erty one from The Redevelopment Laws Acts or Slum Clearance are hardly point public purpose since the has use property
been consummated at the time private sold individuals. In the case before purpose us the use or be served is to after property sale or lease private to a individual. continuing requiring ownership case here is one property, control over the more similar to exer Housing Acts, cised Authority under the in order carry Berman v. Park purpose objective. out their (1954), 27; er 348 U. S. 75 S. 99 L. Ed. Ct. Co. v. Realty City Gohld 141 Conn. of Hartford Housing Authority 104 A. 2d Foeller *10 (1953), 205, 752; Portland 198 2d Ore. 256 P. Hunter Redevelopment Authority Housing and Norfolk v. (1953), 326, 893; Herzinger 195 Va. S. E. 2d 78 v. Mayor City (1953), & Council Baltimore 203 Md. 49, 87; Housing Authority (1952), 98 A. 2d Rowe v. v. 698, 551; Belovsky Redevelop W. 220 Ark. 2d S. Authority 277; (1947), 329,
ment 357 Pa. 54 A. 2d Authority City Housing Edwards Muncie N. E. 2d 741. true, power It the eminent domain cannot be granted by public to an individual or be exercised
corporation purpose purely private if a its serves leading personal or use. In the case of Fountain v. Hensler Company (1927), 199 Park Ind. held
155 N. E. 50 A. L. R. this court invalid granted an act of eminent domain to Chautauqua noted a association. should be there that public use, open was not dedicated to the association a generally, compelled public public to serve the to the and calling, although public a its the classification of under doubt, charitable, objective, be could no classified and educational. philanthropic calling public or early test of a business was
“holding public out” particular to the in a trade. This upon concept
was based that a fundamental busi- private. public ness two classes: Thus, carrier, we or have the term “common” innkeeper smithy “common” or as distin- “common” guished casually engaged only from one who the act in agreement on special or distinction contract. This today obligations exists with reference busi- Historically, ness public “affected with interest.” many callings days permitted public in the earlier were regulation operate by over the state without charges public. later saw rates and The state by ap- many instances, control fit to exercise such legislation propriate by the creation commissions S., purpose. C. J. and administrative bodies Utilities, §16, p. Penn. L. Rev. Public 75 Univ. discretion, legislature may, that determine in its regulation charges may may over the rates and necessary protect interest urge appellees rates and use. The that control effectively charges parking off-street will be competition or other conditions controlled appellees point to legislature so decided. The has City has the the fact Commission competition the establishment opportunity to increase time and from time to of more off-street charges How- indirectly and rates. thereby control *11 controls. ever, consider such economic need not here we granted immemorial has from time law The common practices a classi- business extortionate relief from calling public a interest.” with or “affected public as fied 411, 419; L. Rev. 28 Harvard L. Rev. Penn. Univ. 75 Hist, Eng. (3rd Ed. Law 135, 149; 3 Holdsworth Law, p. 432; 1923), Holmes Common Ellenborough Inglis, in Allnutt and Another v. Lord
669 Company (1810), Treasurer London Dock right East, 527, upon public’s to reasonable rents warehousing, page said on 542: though private property, yet “But this be principle it, upon laid down Lord Hale attaches private property that lic pub- where is affected with a interest, juris privati only, ceases this, purpose case its dedication to such a as arbitrary cannot owners take and excessive duties, but the duties must be reasonable.” The common law from the time of the Year Books is replete placed respon- with cases which the duties and serving public generally
sibilities of upon group this specified limited businesses. This “public callings” classification or businesses public interest,” large with comprises “affected a to a today extent public They what are as known utilities. regulated by are in most Upon cases the state. use,
dedication a business to a it is established duty is under business a law common serve long apply available, who all so facilities are without The discrimination. Portland Natural Gas and Oil v. State ex rel. Keen Company (1893), 818; Hockett v. State, supra E. N. S., E. Utilities, §7,
Ind. N. 73 C. J. Public p. 998. obligation discrimination,
This to serve is without service, only person, prices as to but as to also charged. necessarily price follows that or rate notice, changes, hour, without and from hour to minute, made, cannot be minute to and thus circumvent duty principle law involved. to serve could duty if there were not the be nullified attendant also charge. If at a reasonable serve business “affected charges interest” could make with exorbitant thereby services, only it could serve its whom it
670 fit, fit, by charges manipulating
saw and when it saw its prices. v. Public Service Commission and Winfield 53, (1911), 118 E. Ind. N. 531. 187 regulate fails When the state or does not see fit to legislation charges by rates and or services creating purpose, public, a commission for the right nevertheless, has under still the basic law, particulars, common to be in all with served discrimination, may price, out at reasonable bring private to enforce the duties owed. Foun actions Hensler, supra Company (1927), Park v. 199 Ind. tain 1518; 95, 465, A. L. R. Nat. 155 N. E. 50 The Richmond 1049; (1900), 659, 58 N. E. Gas Co. Clawson v. Services, §100, p. Jur., 43 Am. Public Utilities request, utility If the fails or refuses serve may accordingly, be mandated so serve. State ex Light, etc., (1910), Ind. 174 rel. v. Marion Co. 622, 731; E. Co. v. Trees 92 N. Gas Greenfield 209, 2; (1905), Ind. 75 N. E. The Central 165 600, Hopper, (1890), 124 Ind. et al. Tel. Co. v. Union E. 1091. N. may utility many that a times It has been held customer, cutting supplying a enjoined off service from pay an unrea customer refused to because the N. v. Y. rate. Whitmore excessive sonable or 178, (1913), App. Div. Interurban Co. Water Washing Borough Washington v. 1098; Y. 142 N. S. 390; Eq. 254, 62 Atl. (1905), 70 N. J. Co. ton Water Services, §100, p. Jur., Public Utilities 43 Am. supra. damages at common may recover sue to
A consumer utility as to resulting from discrimination law rights private These are rates. services constituting belong individuals to the “holding business is out” of the to whom Borough made. Tamaqua St. Clair & Pottsville E. Ry. (1918), Co. 20; Pa. 103 Atl. 5 A. L. R. (1946), Lewis v. M. & C. C. Cumberland 189 Md. 319; 54 A. Baking 2d Columbia Light v. Atlantic Co. Gas App. 241, Co. 78 Ga. 50 S. E. 2d 43 Am. *13 Jur., Services, §§30, 33, 67, Public pp. 592, Utilities 594, 615; S., Utilities, §30, p. 73 C. J. Public 1051. only
Not protects the civil law the individuals com posing public against discrimination and extortion by public callings, early servants and Eng but also the lish criminal law. In the of ferryman case a miller or who takes more than the warrants, custom it is extor tion. It was held one who builds and rents stalls at public selling market for the criminally wares is liable, if money by he extorts shortage reason of a (7th stalls. 2 Ed.), Bish. L. §394; Burdett, C. Rex. v. Raym, p. 148; King Ld. Roberts, 4 Mod. Acts 1885, 47, §1, being ch. Replacement. Burns’ 1942 §10-901
Historically, duty owed to the individuals com- posing public, existed before the state assumed the
prerogative regulation. of rate The common law right of compel individual service without regardless discrimination or extortion exists any statute, franchise, charter providing for such public service to the Jur., on reasonable terms. 43 Am. Services, §22, 586, Public Utilities and pp. 587; 75 Penn. L. 411. Univ. Rev.
In Miller v. Southern Ind. Power Co. Ind. 111 N. E. page this court said on 373: “The company act under which was incor- porated provides for service to 'towns and cities general.’ public and to the Acts §5081, Burns’ 1907, p. is true that the said act of purport 1907 does not prescribe regu- to fix rates or service, lations of but such failure does not have absolving effect company from common-law obligations among which, things, impose other duty impartial public.” service to the regulation against statutory provisions rate Parking the Off-Street Act states: however, “Provided, that the Commission shall power in resolution or of have no such otherwise charges any determine or set the amount made by any lessee; further, provided to the such any such lease shall contain a that restriction facility parking shall be used except purposes, restriction shall limit that such 9(5) powers of under the commission Sec. 48-8429(5)] pro- of this act or need not [Burns’ any part the use of land a use hibit accessory except . . . and such restriction need longer period twenty (20) not extend for a than years from the commencement such lease.” 941; 1953, 261, §10, p. 252, §2, ch. ch. Acts p. 908, being (d) (1955 Supp.). §48-8430 merely point in this We out that the statute case deprives “to the commission of determine charges to the amount made set the *14 supra. §48-8430, does statute such lessee.” power police purport the state its divest of charges regulate through Park- except the Off-Street the ing Commission; deprive mem- does the statute neither rights to public their individual be served bers the of given by at reasonable rates as without discrimination rights the which are same have the law. These common callings, times, against ancient re- since existed legislature gardless or not the saw fit to of whether regulate in that field. business such Commission, supra, v. Public Service
In Winfield 53, 531, 118 N. E. the court Ind. (1911), 187 page 67: on said granting any legislation construction “Strict franchises, ques- when authority, is the rule the itself, barred from the state has is whether
tion
673 exercising police by power. its This is the shown decisions herein earlier cited.” argument Considerable discussion and been ex have pended by parties the on sides of here on both the issues assumption proposed left un lessees are operation restrained and in the uncontrolled parking business, question of oif-street and on the ability constitutional to divest itself of its state police power regulate In Rate rates. the Minnesota question grant present Cases that under a charter ing railroad, through directors, its board of power charges However, its own fix rates. Supreme United States Court skirted around issue after some discussion and decided the case another principle. and now famous Chicago, issue and M. & St. P. R. (1890), 418, Co. v. State Minnesota 134 U. S. 462, 970; Minneapolis 10 33 S. L. Ct. Ed. Eastern (1890), R. 467, Co. v. State Minnesota 134 S.U. See, 473, L. Teleph. S. Ct. Ed. also: Home & Teleg. Angeles (1908), Los Co. U. S. 29 S. Ed. Ct. 53 L. Commission,
In v. Public supra, Service Winfield N. E. this court did not question. page avoid that This court said on 60: power “The state’s of control of such matters is one the elements of government, state [rates] in people represented exercise are legislature. government This element of commonly present citizens of the police power, called the state’s and in the general applies case to the interest proper public state service. The may deprive power state itself of to exercise by granting directly this to the serv- companies charters, franchises, ice from the exercise grant freedom thereof; but inasmuch *15 derogation of is freedom in right, of common presumed is never to have been made state, and the state will be not held to have aban- right police to power, doned the its exercise unless 674 expressed in intention so to do is terms state’s doubt; unequivocal and so clear and if doubt exists it must as to exclude of in be resolved favor italics.) (Our state.”
However, case, and Rate the latter the Minnesota distinguished be from the case before us Cases should power of on the basis that those cases dealt with thereby regu- police power the state to its exercise alleged abrogation relinquish- rates, late after an or right contract, through ment a franchise or rights of charter. did deal Those cases not with public, individually, discrimi- without to be served distinguished price from the nation at a reasonable regulate. They hold the did not state right, individually, compel public’s reasonable extinguished. may service, impartial There had been legislature to ability doubt as considerable rights extinguish bargain away the common law compel without service reasonable individual calling engaged from one a discrimination public interest.” result “affected with a business the issue act the state would raise of such an practices against granting immunity extortionate an taking confiscatory property from users and even Such monopolistic created. where a condition was rights attempted, the individual divestiture of Act, Parking as we opinion, our under Off-Street Corporation Johnson interpret v. it. Terre Haute Gas 484, 455; 2d E. 499, E. 2d N. 45 N. (1943), C., p. A. L. R. Note. appellees appellants
Both the contend over the jurisdic interpretations of cases from other correct City County (1955), Francisco v. Ross tions. San City 529; 279 P. 2d Poole v. 44 Cal. 2d Kankakee 416; 2d (1950), 406 Ill. N. E. Lowell v. Boston E. 79 N. 2d Kern Mass. New- *16 City ton Commissioners 151 Kan. 100 P. 2d 129 A. L. R. 1156. right
These deal acquire with the of the state to or public lease property parking for off-street without con- trolling charged price by to be the lessee under varying statutes and conditions. need not We here take the time to cases, they discuss these since do not con- rights sider the served, common law public to be regardless negative They the state’s attitude. do not differentiate the fact that (of such business such les- sees) totally are uncontrolled, unrestrained and but subject are still duty to public, common law to serve may privately which be enforced.
Price control only alone would not seem to be the assuring means of property that would be used to serve public. duty The to serve at a reasonable obligation rate is not assuming the sole of one public calling utility or business. There exists the attendant duties to serve without discrimination as person, facilities, times, long and at all reasonable as legislation facilities are available. under con- sideration, constitutional, give to be must sufficient enough to the commission to fix limitations on property taken, use of the public use is protected safeguarded; words, in other so that property public is used a business that is private. nature and not one that is requirement It is an essential that a business or enterprise way impressed must in some be with a public Accordingly, ness or may public interest before it utility. become a given operator whether the of a busi- enterprise public utility depends is a whether or not the service rendered of a is public concern, on the character consequence and of question necessarily dependent particular S., facts of the case.” 73 C. J. Utilities, §2, p. Public general tenor of the act shows open public generally as a are to be facilities utility. devolving upon The duties Commis- sion are: acquire “To such same sites cause
improved, operated carry disposed of so as best purposes out of this act.... lease, manage, sell, “(2). hold, use, operate, To rent, city, of, dispose in the name of or otherwise such depart- but for the use of control ment, any any part personal, or property, real or thereof, acquired, improved use constructed *17 act, and provisions the on terms under conditions as this such deem to the commissioners shall be bondholders, depart- the the best interests its for ment, city inhabitants; (Our the and ...” its being italics.) §9, p. Acts Burns’ 1950 ch. §48-8429, Replacement. language is that of the statute It seems to the us sufficiently the control which that character of broad the may impress property the City and on the Commission and sold, use assure its when leased or will intended, the con- purposes without the dedication for charged Commission, be trol, by the to the over rates necessary the parking. the off-street for grant placing restrictions power for such statute to property, the statute in order for the use of the on might de- constitutional; property be otherwise be by the its or sale private use after lease to voted in fail- has no discretion The Commission Commission. taking powers refusing and such ing exercise such to in terms and conditions protective measures property to the dedication as will assure lease intended. public use question in con- therefore, be We, find statute leasing arrange- look must now We stitutional. conditions, to determine whether or ments, and terms provided and exercised the Commission not adequate safeguards prop- a dedication of the assure erty to the use intended.
II. required We come to the then terms in the leases and procedure asking appellees followed in for bids leasing accepting and in bids for Sites subject litigation. appel- which are the of this appellees lants contend that failed follow the statutory asking provisions substance, In bids. appellants say the Commission did fix specifications, requested the terms and but instead propose terms, specifica- bidders to conditions and property tions under which the was to be leased. finding August special of the court shows that
21, 1953, adopted the Commission a resolution “that developed lot, Site No. 2 as a be notices be prospective development, leasing, sent to bidders for site,” operation prepared and “that this notice be development, advertised for bids Site No. garage lot an either as a Sep- alternate.” On 7, 1953, 30, and tember October notices were accord- requesting ingly published bids which contained a brief description part the real estate. The notice stated: “Proposals leasing will be considered for the *18 garage. a lot or Proposals of 1 as multifloor Site specify garage whether of should construction said Parking by Indianapolis Commission, the Off-Street financing Commission, by said contemplated any garage lessee
whether the will construct expense specifications with at his own accordance approved by Indianapolis Parking the Off-Street Proposals parking to lease Site 2 a Commission. as lot . . will be considered . proposals specify should the “Sealed term lease of all proposed the rental and other re- and terms notice, by quired this as well as at other terms the option.” bidders’ leasing On for the sites were October bids respect opened. and there received With Site No. merely of were three bidders. One was on the basis resurfacing lot; was of either one on basis constructing story building expense a four or at the five bidder; constructing a on the one was basis building expense city. story five at One year proposal of a lease with a was on the basis five guarantee; percentage minimum one was on and lease; year a 40 was on basis basis one respect year flat of a 25 lease with a rental. With varying terms were received Site No. bids guarantee percentage years; on a minimum and one basis, proposals a flat rental basis. Two other black-topping provided for the Commission. Grandle, doing as the Grandle R. business bid Olin ultimately Parking Company Lot for Site No. was originally accepted. specified “we will construct engage garage. parking propose to ... a multifloor We advertising, engage architect, up the formation an work supervise general completely contractor garage.” construction correspondence bidder and between this After some modified conform with the bid was the Commission approved proposal and this new was certain statutes although it was not advertised accepted a bid as The bid for Site No. as modified. for bids approved. Moore and Helen lot Ross parking bidding procedure to the relevant The statute here, applicable reads as follows: far as so shall have lease “The Commission any prop- facilities or to others rent or erty acquired parking purposes, off-street after setting out adopting a resolution its intention first specifications as to the terms to do so operation requirements and other lease, manner of proposed lease, bearing having on the value *19 giving by publication.... and notice of its intention Such shall set notice forth date on which considered, location, offers will be size and received capacity property, specifications adopted governing leasing; and such other in- open competition as will secure formation free in the high- The award shall be made to the offers. bidder, est and ap- best lease must be proved by mayor----” (Our 1949, italics.) Acts 261, §10, 941; p. being ch. §2, p. 908, ch. (d), supra. §48-8430 “Such resolution shall set out the location and _ proposed size of the general description site and a improvement proposed or the structure or proposed structures (Our to be erected thereon.” italics.) 261, §11, 941, being Acts p. ch. §48-8431, Replacement. Burns’ 1950 apparent seems to us that the Commission did statutory provision follow the question outlined. The basically upon requires
turns whether the statute the Commission to determine in advance the specifications and terms and conditions under made, the lease contemplates is to be or that the prospective proposals bidders are to submit their various terms and on various If the conditions. latter interpretation statute were followed would practically bidding competitive eliminate price on a requires basis. The statute the notice set forth open “such information as will secure free and com- petition.” pursuant The resolution and the notice there- specify of, to do not lease, the term the size building, any. character of the if true, may It is there competition quality, as to upon basis, price alone, another than but legal we have no other where standard of value than money, competition without consideration of such stand- ard, opens capriciousness the door to fraud and in the particularly This is acceptance of bids. true where the may specify part bidder substantial of his own terms Board, Pashong (1908), conditions. 41 Ind. etc. v.
App. 69,
E.
83 N.
Commissioners
Board
Henry County
et al.
v. Gillies
*20
40; Wrought
Bridge Company
38 N. E.
Iron
v. The
Board,
App. 672,
etc.
We believe “specifications,” in the “free and the words act such as open highest competition,” and “and and best bidder” meaning held to from their should be different usual meaning bidding con- in connection with and legislature tracting. specifi- If the had intended the bidder, proposed the to be it could have said cations so. controlling by a amendment to the
Instead statute, (§48-8430, supra), of this the section following language legis- was eliminated the the lature from statute: offering made bidder shall be to the “The award advantageous judgment in the terms the most the commissioners, giving the due consideration to . responsibility experience of the and financial bid- der.” language: following it substituted
Instead highest award shall be made to “The best bidder.” changing legislature purpose this lan- in had clarify
guage.
provisions
stat-
appears to
bidding
any possible
to avoid
reference to
ute with
upon
required
to be
implication that bids were
of value.
specifications, terms and standards
the same
request
alternates
bids with
bar a
This does not
City (1913),
Atlantic
particulars.
Johnson v.
in certain
145,
It is may minutely specific that made so be requests for bids eliminated, may we do not have but competition be question arising case, that no reason this we see give that matter consideration. further appellants complain also that under the Grandle bid, accepted, which contracted was the Commission engage with Grandle to out a an architect to work design specifications building was to of the which expense built City. at was The bid modi- suggestion City accepted by at fied of the Grandle, City provided which was would building, provide build but Grandle was architect, subject City. approval to the of the Since acceptance what we have said invalidates the case, arrangements bids in this with reference to employment of an part architect bidding agreement falls, also and we need not discuss arrangement further. *21 provides specifically property statute that if the leased, asking is bids, the necessarily resolution and upon acceptance bids,
the lease based the of “specifications shall contain as the term of to lease, operation require- the manner and other of having bearing ments a value proposed the of lease.” (Our italics.) As said in the discussion of the con- stitutionality act, upon of this is incumbent the place Commission to in the terms and conditions of requirements the lease certain to assure the dedication property public of the parking to a use for off-street during the term It of lease. is elemental that very terms, minimum in property order to dedicate the calling, public utility, a to or business affected with interest, public agree that are the lessee to must serve generally public without per- as to discrimination sons, charges, facilities, during or reasonable hours. nothing is proposed leasing There the terms arrangement requires operator which serve to all public impartially person, price members to during seem, services, hours. would reasonable effectively public use, protect to that schedule some inspection, public price open or rates should be to changed some reason- and which could not be without able time notice. recognized persons principle that a
It is well law engage may be may same kind of in the business calling, depending calling private public a a eithér serving pub- upon not is whether or the individual special generally, is contract with other lic under private example this A common is individuals. trucking Consequently, there be terms business. should provisions the off-street which would assure not diverted under some would facilities generally. private the exclusion contract defective bidding proposed leases were and the safeguards failing adequate provide for respects stated. in the above use 1, 2, 4, opinion that 5 and It is our conclusions law leasing are not reference sustained with finding facts to the extent referred special above.
III. Krieg, Appellants, William Burford Danner being Garrigues, condemned, land Helen whose have validity of the attacked the Commission’s confirmation declaratory resolution for condemnation of Sites ground on the the final action was (January hearing in the taken on the date fixed notice meeting 2, 1953) at later held on was taken but *22 only appellants February 21, are the 1953. The named any the of out a condensed recital who set ones solely pertains That recital their brief. in evidence sufficiency of the the evidence sustain to the issue meeting court, fiTiding the 14 the the No.
688 February 21, 1953, the Commission on was a continua- meeting January tion the was and valid in confirming condemning declaratory resolution property appellants. of the named
Finding given duly No. 13 shows that the notice was hearing objections meeting January for on 2 for as required by January 2,1953 meeting, the statute. At the findng persons present evidence and No. 14 show against duly resolution were heard. finding special part: No. states January 2, date “On later to wit: hearing provided Commission held at time such notice to consider whether De- claratory Resolution should No. be confirmed “ hearing the end January 2, 1953, 1953, of such on hearing the at which February 21, was continued until time Commission confirmed Declara-
tory Resolution No. 1.” meeting At this adopted same also Commission damages an assessment roll were notices accord- ingly given in such matter of which are we not here concerned. January 2, meeting minutes of the which evidence, however, meeting
is in the states the postponed any “two weeks.” There are no minutes of meeting. meeting The next minutes of appears February 21, Commission at time resolution was confirmed. Northrup, attorney Commission,
Mr. for the testified February meeting was a “continuation of meeting.” January providing giving after for the The statute of notice hearing date states: objections boards shall consider such “Such remonstrances, any, thereupon, if or at a later session, postponed then continued or to a time *23 684 certain, confirming, it final shall take action either rescinding
modifying, original or its resolution.” (Our being italics.) 15, §3, p. 37, Acts ch. §48-2103, Replacement. Burns’ 1950 meeting purpose January 2 under give opportunity parties statute was to interested an objections appear, heard, present be or their right had remonstrances. Commission arriving privilege- at a at its decision giving parties a full later date after the interested objections opportunity the Janu- to be heard their at meeting. ary 2 or arrived Whether Commission immediately date, its or at some later would at decision long prejudicial appellants, as to be not seem given opportunity remon- they a full to file their were objections and be heard. or make their strances 112, 117, (1937), 212 Ind. Regenstreif In Merz v. gave court consideration to 2d this 6 N. E. provision to this and if statutory somewhat similar In the statute under considera anything, strict. more provided: case tion in that remonstrances, shall consider board “Such thereupon (Our any, take final action.” if italics.) Burns’ §48-2001. any delayed provision for decision or was no There Yet, court determined that de this continuance. delayed. be could continued board cision us, matter before hear noted in the be should only delayed but not continued ing was date requires, only, process delayed. Due that a decision given opportunity to be heard. reasonable person appellants all afforded this opportunity This in accordance with statute. notice due after case (1943), v. Falk Commissioners Board of 1190; City Indianapolis L. 320, 145 A. R. 2dE.N. 47 222, N. E. Ind. 57 Morrison (1900), Holt v. Indianapolis, etc. R. Co. Ind. 76 N. S., E. 961; Law, (c), p. J. Constitutional C. §662 provision There is no in the statute for further hearing filing objections or second or remon- declaratory strances on the issue resolution. Just appellants delay how were harmed in confirm- ing declaratory 21, 1953, February resolution on *24 not apparent. error, complained made any, of, The if appears harmless.
Only appellant, any Krieg, position William F. inis urge point regarding delay, to since evidence appellants
fails show of the attended the meeting January present remonstrances, 2 to Krieg except (by attorney, Rocap). his If a party duly meeting has hearing, been of a notified appear personally counsel, and he by fails to he any right complain taken, waives of the action so long authority is within the of the administrative body holding meeting. Huling Valley v. Kaw The Railway (1889), 559, 603, Co. 130 U. S. 9 32 Ct. L. S. 1045; Ed. (1949), Skinner v. Pitman-Moore Co. 119 App. 458, 279; Ind. Taylor Drainage 85 N. E. 2d Dist. (1914), 42, 1040; No. 56 167 148 Iowa N. L. R. A. W. B, 1193, 1916 644, affirmed in 244 U. S. 37 S. Ct. 1368;
61 L. Jur., Domain, §322, Ed. 18 p. Am Eminent 966; S., Domain, (b), p. 29 C. J. Eminent 1213. §242
Krieg, given shows, hearing. the evidence His attorney spoke subject on the matter before Com- at the time. mission No formal remonstrance was filed as the appellants so far evidence The shows. other did giving to be heard. The proper not ask due and January meeting appellants notice all By challenged. jurisdiction this notice was ac- by appellants All quired Commission. who desired heard, were heard. be finding 14 of the material No. stated facts Chicago
trial court are sustained evidence. The Railway Company (1888), and Atlantic v. Barnes Ind. 17 N. E. al. v. The Berkshire Ward et E, Company Insurance N. Life IV. appellants further the conclusions contend beyond the in this 6 and 7 are case.
of law Nos. issues These court dealt with conclusions the trial held, by proposed these bond The trial court issue. law, issued conclusions that the revenue bonds to be Parking Act, not be a would under Off-Street general obligation city would and the issuance provision prohibited the constitutional not be provided bonds limitation, the act the revenue since debt proceeds from solely paid from revenue be would parking pledging facilities from off-street against parking a lien and would meter revenues proceeds from the sale acquired with facilities *25 the bonds. 6 complaint (sub. par. 5 and of the
An examination shows Camp Iron 10), Hardware & Co. par. of of Van following alleges presents the issues: 1945, Chapter the Acts of “(5). act and Said through 7, amended, permit the issuance 1 as lien on estate after are a said real of bonds which its Commission, consequently condemnation said pur- for a acquisition said land is not on said land will be held the first lien pose since by private parties. provided “(6). Upon the issuance of bonds as amended, to, interest as said Acts above referred private persons who due to payments will become Acts, provisions of said bonds under the hold said amended, interest, payable of the out and such charges parking made meters which are proceeds
687 public streets, for the use of improper is an use of private for purposes.” funds intervening complaint of John S. Elmore states: City has, however, “4. . . . The entered into agreements are purchase part sites and which contingent upon city’s ability issue, sell proceeds and realize the from bonds finance such acquisition; . . . “7. The Commission threatens to and will if general pay restrained from the fund of the City Indianapolis $70,000.00 the sum of clearing the land on Sites and 2. Section 3 of the 1951, Chap. 312, permits Acts of the use of funds parking of derived from the meters situated on the City streets of the Indianapolis pay to be used to the bonds purchase with which to parking or erect a facility by the Commission. The Commission threatens to and will unless restrained use such purpose.” revenues for such allegations
We feel such sufficiently put into issue subject validity matter of the proposed bond issue. appellants have to set failed out their brief condensed recital of presented the evidence
at
the trial under this issue.
is elemental
upon appeal
pleadings
will be deemed
findings
evidence,
amended to conform to the
allegations
judgment,
pleadings
if the
do not
entirely
scope
presented by
cover the
issues
(Spec. Sess.),
38, §659, p.
evidence. Acts 1881
ch.
being
§2-3231,
Replacement;
Boston
Burns’
v.
Chesapeake
Ry.
(1945),
425, 61
& O.
Co.
223 Ind.
N. E.
319;
Bundy (1884),
2d
et
Breedlove
al. Stolte,
Gimbel v.
Administratrix
tional. To determine both of these issues court general had to determine that the bond issue obligation general City Indianapolis, because obligation bonds in Indiana cannot be under law immunity. upon specific property lien reason state findings special make it clear a revenue bond Parking contemplated Act. issue is under the Off-Street parties (Findings 26.) 23 and feel We test, in these hereto intended settle consolidated arising legal time, cases, possible, at one if all the issues Parking proceedings under the out of the Off-Street matters Act. It is in the interest settle expeditiously, piecemeal rather than fashion. properly the trial court and before
The issues were proposed to the with reference its conclusions law Authority Housing v. were Edwards bond issue correct. (1939), 19 N. supra 215 Ind. City Muncie, Ind. 741; City Bicknell E. 2d Fox v. Mayor (1925), Harris, E. Bollenbacher N. 657, 148 E. 417. N. judgment is di- This is reversed and trial court grant of law and to restate its conclusions rected injunction permanent to the appellants’ prayer for a bidding in connection with the indicated extent herein proceedings leasing procedure, further and for opinion. with this consistent Landis, JJ., J., Bobbitt, Emmert concur. C. Achor, J., opinion. with concurs
Concurring Opinion Appellants contend that, conceding the Achor, J. necessity parking facilities, off-street Parking (§§48-8421—48-8443, Act Burns’ Off-Street (19'55 Supp.)) Repl. unconstitutional provides expressly that “. . . the com- reason (authorized utility) to establish shall have no mission *27 power ... to determine or set the amount of charges public made to the . . .” for services such n utility. §48-8430(d), Repl. (1955 Burns’ 1950 Supp.), 261, §10, Acts p. ch.
Appellants urge provision that the above constituted express an by abandonment the state of its inherent right and therefore inalienable to police exercise its utility over the purpose regulating for the its charges public. urge made to the Appellants that if off-street facilities public necessity are justify to the condemnation of land for such use, legislature that is without constitutional au- thority to abandon or divest the state police power of the regulate any charges to “the amount of made to the public” for such facilities. There is substantial author- ity legal support position in of the by appellant. asserted S., Law, §179, See C. J. Constitutional p. 549.
However, appellant has misconstrued the above provision controversial of the Act. The law is well may delegate settled that state portion of its police power to a municipality, subordinate commission board, created the state.
However, the law is also well that, settled although highways city streets of a particular are of city, interest the citizens of that to because of the fact they part general are also of the highway system they subject of the state are regulation control and police power, state under its unless the state has delegated expressly waived or to the municipality its right The same to do so. rule has also been held to regard apply companies with service particular of a city. the residents serve v. Winfield Commission Public Service E. 531.
N. although analogy, By the same off-street parking in Indianapolis may particular City interest city, to the citizens of this since the services utility general public, are of interest also utility state which has authorized the creation authority has inherent and constitutional control regulate right it, expressly abandoned unless delegated authority. to a subordinate v. Winfield supra; S.), Commission, (N. A. Public Service 55 L. R. 1915C, 268, 269.
In the Justice words Chief Marshall Providence Billings, 514, 561, Bank v. Ed. Pet. 7 L. ought presumed not to be in a case “Its abandonment purpose of to abandon which the deliberate the state also, City appear.” Washington does not See *28 (1921), Public Commission Service 401; Greensburg E. v. Lewis N. Water Co. R., 103; 28 L.
Ind. 128 N. E. A. 587-609. constitutionality However, in case the this dependent upon of the stat- is the construction Act not attempt by In the case before us there no ute. implied, legislature, express or to abandon either commission, authority, delegate municipal a local to the regulate by to police power the state off-street utility to exercise of that then restrict contrary, by the statute power the commission. On merely provides “the clearly terms concise power no or set commission, to determine shall have charges public” by the made the amount to the inherent makes reference utility. no The statute n right'of police exercise its itself the state right charged. Therefore, regulate rates operative made by could the state and clearly retained opinion in the legislation whenever by appropriate police power of the state’s legislature the exercise regu- right of the state to required. Thus might be controversy, utility rates of the services late subject proper of contract between although lessee, incorporated commission-and the is- ill the lease by operation of law. 10, page 941, (§48-8430
Section (d)., Acts 1949 Burns’ (1955 Repl. Supp.)), supra, does not divest the state n of its regulate police power charged the rates parking facilities, off-street utility, crea right tion of which is authorized the Act. That unabridged. Therefore, appellants’ remains in state unconstitutional, contention that the Act is because local, right commission, to the the denial of such is not . well founded.
Nóte.—Reported' in 130 N. E.' 2d 650.
Smith v. State Indiana. 29,280. January 5, Filed [No. 1956.]