173 Ind. 391 | Ind. | 1910
Appellants petitioned the Board of Commissioners of the County of Warren for the improvement of a certain highway less than three miles in length, under the provisions of §§7712, 7719, 7715, 7717 Burns 1908, Acts 1907, pp. 137 and 68, §1, Acts 1905, p. 521, §§66, 68. Appellees appeared on the day fixed for hearing the petition, and moved to dismiss the same upon grounds specified, charging that the law upon which the proceeding was based is unconstitutional and invalid. This motion was overruled, and an engineer and viewers were appointed to view and report upon the proposed impiwement. Upon the filing of the report of viewers, appellees appeared and filed answers to the same. Appellees divided themselves into three groups, and answered severally in the capacity of taxpayers who were freehold voters, voters owning personal property only, and married women, each group attacking the constitutionality of the law upon the same grounds. The board disregarded these answers or objections, and without an election ordered the road improved in accordance with the report of the engineers and viewers. Appellees appealed to the circuit court, and in that court refiled their motion to dismiss, and answers or objections to the petition and viewers’ report. The motion to dismiss was overruled, and issue was joined on the answers by reply. A trial by the court was had. A special finding was made, with the following conclusions of law: (1) That the statutes upon which the proceeding rested are unconstitutional and invalid; (2) that the improvement should be denied; (3) that the petitioners pay the costs.
In the case of Smith v. Board, etc. (1910), ante, 364, the validity of the statutes involved was upheld as against all objections therein presented, and that case is decisive of the chief contentions of appellees in this case.
It appears from the special finding in this case that the route of the proposed improvement is 14,235 lineal feet in length, and is along and over a public highway already established, commencing in a public highway on the township line between Medina township and "Warren township in Warren county, and terminating at and connecting with the Independence and Green TIill free gravel road in the village of Green Hill in said Medina township, which gravel road was built under the provisions of the act of March 3, 1877 (Acts 1877, p. 82) ; that at. the time of filing the petition herein there was, and continuously since there has been, a United States rural mail route passing over the entire length of the road to be improved.
It is next argued that the provision (§7719 Burns 1908, Acts 1907, p. 68, §1) in regard to the existence of a rural mail route over the road to be improved is entirely arbitrary, since its continuance is beyond the control of the State, and depends upon the pleasure of the federal authorities. The existence of a rural mail route indicates at once a fairly populous and progressive neighborhood, and that the route must be traveled by at least one person on every day of the year, except Sundays and certain holidays, in the performance of an important public service. The permanence of the free rural service depends materially on the character and condition of the roads to be traveled by the carrier. No constitutional obstacle appears to us why the legislature might not provide, as it has done, that, upon a proper petition for the improvement of a highway less than three miles in length, connected at the ends as in other cases and showing the existence of a rural mail route over any part of the same, the board of commissioners should cause such improvement to be made, without the exercise of any discretion on its part.
It is earnestly contended that the provisions of the law, allowing only freehold voters to become petitioners and to initiate proceedings which result in a tax upon all property within the township, are discriminative and invalid. The improvement of public highways is a governmental function, and this is a representative government and not a pure democracy. It is not the theory of our government that each citizen shall personally participate in every proceeding affecting his personal and property rights. The resident owners of personal property are interested in the subject of improved roads, and under this law their property is subject to be taxed for the making of such improvements, provided they remain residents of the township in which the same are located. It is well known that farm tenants and owners of personal property frequently remove from one township to another, taking their property with them; but the land remains, and is always subject to taxation for the original cost of road improvements, and also for subsequent expense of repairs and maintenance. The propriety of requiring that proceedings for the making of a permanent improvement, the maintenance of which "will become a perpetual charge upon the real estate of the township, can be instituted only upon petition of freehold voters seems apparent to us, and affords no grounds of complaint to the taxpayer who is not a voter, or to the voter who owns only personal property. Bowlin v. Cochran (1903), 161 Ind. 486; State, ex rel., v. Goldthaite (1909), 172 Ind. 210.
It is insisted further, that, under the proviso for the improvement of highways without an election, the owner of personal property is taxed without an opportunity to be heard, and that he is accordingly denied his day in court and due process of law. The cost of improvements and repairs to public highways is assessed and collected by the State ■ in the exercise of a species of its taxing power. It is the settled doctrine in this State, and the rule 'is
In the exercise of its authority, the legislature has determined that all taxable property within a township should be assessed for the improvement of any road in such township, in proportion to value, and on the basis of valuations made for general taxation, provided that no improvement shall be made which would create an outstanding liability in excess of four per cent of the total taxable value of the property of the township. This method of assessing costs and benefits is readily distinguishable from that which delegates to a special body of men the work of determining the benefits received and apportioning the costs accordingly, in which case a special hearing becomes necessary. The taxpayer, under the method provided in this act, has had his day and hearing before the assessing officers who fixed the valuation of his property for taxation. If the legislature, by a law of this character, should attempt to impose upon a special taxing district such an excessive burden as would be confiscatory of private property, a different question would be presented, and the judiciary could doubtless interpose its authority. But under the limitations of this act no such condition could arise, and our holding is merely that the voters of Medina township, who are owners of personal property only, are not denied due process of law because their property may be taxed for the improvement of highways in the township, under a law which does not allow them the privilege of petitioning for, or voting upon the question of making, such improvements. It follows that the court erred in each of its conclusions of law.
The judgment is reversed, with directions to restate con
Jordan and Monks, JJ., dissent, for reasons stated in dissenting opinion in the ease of Smith v. Board, etc. (1910), ante, 364.