*1 preliminary report, prior proceed- taken from all ings §27-802, supra. are conclusive. After the commis- report, sioners have final filed their remonstrances report days. the final must be filed within ten [10] §27-803, supra, p. And, finally, heretofore 683. stated, provided it is that:
confirming clusive, posed work established thirty Court be taken “ . . . The order of the court [30] unless an days,...” the assessments and appeal an §27-803, therefrom to the appeal supra. be final and bond filed within declaring approving Supreme pro- con- circumstances, Under the above it reasonable say legislature intended that motion might interposed, prolong new trial which would 30-day period prescribed taking appeals, simply but failed to mention intention in the stat- quoted. ute above rehearing
Petition for denied. Arterburn, Myers, JJ., Jackson, Landis and concur. J., dissents. Reported Rehearing 196 N. E. 2d 745.
Note. — 199 N. E. 2d
denied City
Lurie, etc. et v. al. May 30,488. Filed [No. 1964. Dissent filed July 1, 1964.] *2 Cadick, Burns, Peterson, Douglas Hill Clyde L. J. Indianapolis, counsel, Neighbours, all of Duck & appellant. *3 Counsel, Corporation Reddington,
Michael B. Indianapolis, ap- City Attorney, Dillon, of John J. City Indianapolis. pellee, of Indianapolis, appellee, Korbly, Board
John P. Park Commissioners. Indianapolis, Hartman, for Auditor of Richard County. Marion Brewer, Risch, Robert D.
Harry Ice, T. David N. Miller, Ryan, McCord, Ice, Donadío & D. Robert Indianapolis, counsel, amicus curiae. all of brought enjoin to this action Landis, J. — property appellant’s levying any on appellees tax from Indianapolis issuing Park District as of the or bonds taking any would fa action which or other extended or the issuance such levy of a tax cilitate the by of ch. certain sections authorized bonds, purportedly 1919, 144 of the Acts of as amended ch. 279 of the 1961,1 Acts and ch. and ch. of the Acts 1963.2 by appellant’s complaint
The issues were formed con- tending the above statutes were unconstitutional appellees’ contending contrary. answers to the The low- er appellees judgment court found for and entered their favor appellant from which ap- determination peals to this Court.
Appellant’s appeal first contention on this is that equal guaranteed privileges she denied to her Art. 1, of the §23 Indiana Constitution3 and the fourteenth (14th) amendment of the U. S. Constitution4 ch. 1961, 279 of the purports Acts of to authorize city Indianapolis common council of the appellant’s property located outside the Indianapolis. purport expand above the area of The statutes operations districts in cities first territory from within the class County. territory purpose The to all the within Marion p. 1961, 279, §1, Repl.), ch. (1963 Acts 1. Burns’ §48-5501a 279, §3, p. 1961, (1963 Repl.), Acts ch. Burns’ §48-5504 279, §7, p. 641, Repl.), 1961, (1963 Acts ch. Burns’ §48-5528a 279, §8, p. 641, §3, p. 1101. ch. ch. (1963 §1, Repl.), Acts ch. 2. Burns’ §48-5501b p. 397, §3, (1963 Repl.), supra, Burns’ Acts ch. 1100. §48-5528a p. 1101. provides: 3. Art. of the Indiana Constitution §23 Assembly grant citizen, “The General shall not citizens, privileges which, upon class of or immunities the same terms, equally belong shall not to all citizens.” (14th) 1 of amendment to the U. S. Sec. the fourteenth *4 provides: Constitution any “. . . No state make or enforce law which shall abridge privileges the or immunities of citizens of the United States; or any deprive any person life, liberty, nor shall state deny property, law; any process person without to due nor jurisdiction protection equal within its the of the laws.” park county-wide provide for a be to is conceded to metropoli- expansion of light system, obvious of the city. Indianapolis beyond the the boundaries tan portions of however, the Appellant contends, those purport authorize to unconstitutional Act are levy Indianapolis city to common council the the city. the appellant’s property outside located on 144, §4, Repl. (Acts ch. §48-5504, 1963 Burns’ §3, §1, p. 1961, ch. p. ch. respect provides p. follows: 641, supra), in as this territory cor within the included “All the city first class porate and on and after the all limits of the area in January 1, extent county provided shall constitute is located to in which such act 1A 1a] section [§48-550 purpose district purposes park special levying taxes for benefit The provided as in this act [§§48-5501 48-5531]. — ‘park purposes’ in this act shall term as used parks, to and include considered and held cover wheelways, drives, parkways, boulevards, pleasure play- playgrounds, park boulevards, bridlepaths, swimming stations, bathhouses, fields, comfort community centers, centers and pools, recreation operation equipment establishment, park Except in cities districts thereof. adopted have this act but have second class that pursuant to boundaries to extend its not elected act to [§48-5501a], in this 1A section references territory within concerning park to or district or be construed class shall the first within all area January refer after the are extended boundaries as its district city by corporate section beyond limits context unless 1A of this act [§48-5501a] added.) requires,....” (Emphasis otherwise merely foregoing extended statute thus The pow- The Park District. boundaries council, common continued er taxes was agency. acting an administrative *5 constitutionality has also attacked the §48-5528a, Repl. (Acts
Burns’ ch. §25A by as added 279, §7, p. 641, Acts ch. Acts 397, §3, p. ch. 1101, supra), authorizing city coun- upon request cil park commissioners, of the board adopt to establishing an ordinance a cumulative build- ing sinking levy and fund and to annual for such purposes, viz:
who will be may to be reduced the common council county erty exceeding ten board of tax set state dollars period to adopt poses after section 25 city, building [10] “The board of request forth cause within the in board of tax provided. for an ordinance auditor of the city [$100] order to raise more which bonds twelve such affected the common council of such [§48-5525] sinking by adoption taxpayers commissioners, cents [10^] of taxable annual . . . After park ordinance and park levy annually thereafter, [12] commissioners, deems fund district: county establishing money levy commissioners of may such of this years, personal of an it any in the manner herein at approval by on each one hundred tax, advisable the common council in which such for any the amount issued such act, ordinance; Provided, may approved by any but in time a cumulative is park file pursuant of the to do real authorized thereafter the state any no with the district city or prop event so, park such pur ten tax if it located, August any not later than 1 of district petition year, setting for reduction of said objections (Emphasis forth their thereto. . . .” added.)
Appellant also §48-5508, refers to Burns’ 1963 Repl., (Acts 1919, 144, §8, p. 639; ch. (Spec. Sess.), p. 32, §1, 105), giving ch. city authority council pass authorizing an ordinance park lands, sale proceeds may be used the board of park best inter- commissioners as it deem may city Indianapolis, ests of the viz: park “If such a commissioners board city any part of the first class should wish to sell city lands now owned or that such
may to hereby acquired, hereafter be it is authorized prepare authorizing an ordinance such sale submit shall council the same to the council. If the pass ordinance, such lands shall be sold sold, proceeds as other are and the lands depart of such sale shall be credited to the *6 public parks expended improve ment of remaining park pur ment of the chase of other lands for lands or in the park purposes, as such may city...." board deem for best of the interests the appellant’s taxing argument extending It is that the power city prop- Indianapolis of the council to include erty appellant beyond corporate such as of that the city County, limits of such in Marion is taxation with- representation; appellant voice, out no direct that or indirect, choosing council in the members such solely by city, who are elected the voters of said appellant equal protection of that would receive Indianapolis. city the laws with the residents of the upon relies to a considerable extent the decisions in: Town Hard out state Oneida v. Flooring (1935), 449, wood 169 Co. Tenn. 88 S. W. 2d 998; (1916), Hinson v. State ex rel. Nickerson 99 517, 156 N. and Klich et ux. v. Miami Neb. W. Development (1939), 794, Co. 191 Land & Fla. appearing 41, S., and statements in C. J. Mu So. §2003, p.
nicipal Corporations, Jur., 38 Am. Mu §392, nicipal Corporations, p. However, these au appear applicable to do not the case at bar as thorities they attempt levy where relate to situations the
property change by outside the unit was caused boundaries, disannexation, in or a void annexation. hand, support appellees’ position,
On the other pointed it is out that a statute involved similar passed by legislature in this case was the in 1917 which provided sanitary for the creation of districts and au by city thorized the of taxes council board by where land outside the was benefitted Board, taxes levied. This Court in State etc. v. State (1926), ex rel. 198 Ind. 153 N. E. 153 N. E. considering statute, recognized duty perform state board of tax commissioners to its duties with reference to the taxes levied Indi anapolis city property (outside council on located city) Place, opera in the town of Woodruff for the Indianapolis tion sanitary district. Such taxes present under upheld Archer, Jr., law etc. et al. City Indpls., etc. et al. 233 Ind. v. N. property E. 2d are now levied on outside the city in areas annexed to the district the board sanitary commissioners, being appointed the board mayor Indianapolis. City In Bryan (1919), 188 Ind. 125 N. E. v . upheld constitutionality we also pro of an act *7 viding levying by for the board of commissioners city Indianapolis of assessments outside the city for property, having benefits to such such board appointed by been mayor then city of In dianapolis. pointed
We believe it should be further out that this early Court case of v. Conwell The President (1856), Trustees Connersville 8 Ind. held an act provided not to unconstitutional which persons residing all (200) yards within two hundred corporation of line should be taken as residents
465 purposes corporation within the limits of the Savings Bank Visalia taxation. Visalia See also: v. 888; City
(1908), 206, 94 Pac. Wible Cal. v. Bakersfield, (1919), App. 42 Cal. Pac.
Ratigan (1963), 416, 122 175 Neb. N. W. 2d 12. v. Davis argument regard appellant’s taxation
In representation, have heretofore held that without we legis levying a local of local taxes is lative administered elected officers function locally only but amounts to administrative ac delegate tion unit. which the can See: state Agler (1930), Zoercher v. 202 Ind. 172 N. E. repre 1232.
172 N. E. 70 A. L. R. Assembly sented the General is therefore not subject representation. to taxation See: without Cooley, Taxation, §21, p. 84. legislative
It is well settled that the wisdom action field of taxation and assessment is not a matter may long legis the courts consider as as the provision. lature violates no constitutional West Adj. Insp. ern & Co. v. Gross Inc. Tax Div. (1957), 236 Ind. 142 N. E. 2d Sun Oil Co. v. Div., Inc. Tax Gross etc. 238 Ind.
N. E. 2d
While it is true the common council of the levy property could not taxes on outside general city purposes no way property, benefited the outside this is be Assembly cause General could neither au directly. However, thorize a local tax nor it when the taxes levied are for the benefit the entire district, equal are levied on a uniform and basis throughout district, money expended the entire and the taxpayers a board in which all the of the district representation, opportunity have there is no of dis *8 owning property against taxpayers out
crimination the city by levy of taxes. side the the by appellant here contended No discrimination is process any process exist in the nor does the assessment improve- money purchase or for spending of of tax pro- purposes park for as the statute ment of land represented county on taxpayers are vides all taxpayers All of the park commissioners.5 the board city may object including district, those outside require city by council the tax rates set by of tax commissioners.6 review the state board heretofore made appellant’s find contentions We be Avithoutmerit. portions
Appellant of the those next contends park purporting the board com- to authorize Act levy special city Indianapolis to missioners property appellant’s located outside the pay for land ac- Indianapolis, which will be used quisition principal on bonds and interest issued and the purposes park by violate and the four- 1, Indiana Constitution Art. §23 (14th) U. S. amendment of the Constitution. teenth provide appellant does act concedes administration representation in the indirect some appoint- extended, by means district, park as by Mar- park commissioners to the board ments (Acts Repl. §48-5501b, 1963 county Burns’ council. ion 396, 1963, ch. by Acts §1C, added 1919, 144, ch. §1, 1100), provides: p. mayor Indianapolis, by appointed are Three members county §48-5501b, 1963 Burns’ council. Marion
and two ch. 144, §1C, Acts as added (Acts Repl., §1, p. ch. 1100). 275, §1, p. Repl., (Acts §64-1914, ch. 6. Burns’ Repl. (Acts 144, §25A, 1097); as added §48-5528a, ch. Burns’ 641; 1963, §3, 279, §7, p. ch. ch. Acts 1101). p. located. The members bers shall shall consist of five and two county council city....” district outside the [§48-5501a], “Upon district of council of the the extension [2] be be residents appointed members shall the board [5] corporate boundaries of such city pursuant county in which by members. Three of the boundaries appointed by the the *9 park mayor appointed area of commissioners to section of such [3] the by county city mem- park city any the 1A is given park powers The to the board of commissioners park in connection with the district include the au- thority acquire park purposes, to land the issuance pay improvement or for or con- bonds to therefor by Act, authority provided for to a struction the special pay acquisition tax and the to lands principal received.7 and interest bonds
Appellant challenges finding legislature8 property city Indianapolis that will be outside existing by improvements benefitted for which bonds yet paid, have been issued but not on the basis that at improvements the time the were made and the bonds property issued, improvements were for located within the and for the benefit Indianapolis residents. appellant there
The contention of is that tax is 1919, 144, §16, (Acts Repl. §48-5516, ch. 7. Burns’ Repl. (Acts 1919, 144, §25, §48-5525, ch. p. 639); Burns’ 251, §1, p. 140; Sess., §1, ch. 1920, Spec. p. 639; ch. Repl. 641); §48-5527, p. p. 732; Burns’ ch. §6 639). p. (Acts 1919, 144, §27, ch. p. 639; Repl., (Acts 1919, §4, ch. §48-5504, 1963 8. Burns’ 279, §3, 641), provides: p. 110, §1, p. 698; ch. ch. pursuant Any park to section to a district area added “. . . hereby and to this act is deemed declared 1A [§48-5501a] existing park special from the benefit new
have received facilities of the exceeding special equal district by imposed pay this all or on such area act order any part of the cost of such facilities.” property imposed upon outside the her the residents particularly of benefit to contention, Indianapolis. Appellant’s city of supported evidence however, sufficient is not discre may court abused its the trial we conclude legislative refusing upset determination tion in Moreover, appears that it opposite effect. to the property taxpayers annexed area is benefitted previously made in the park improvements all the taxpayers assume their share county, should and such improvements which paying for such burden of property. benefit their consistently applied an rule to Court
This municipal corporations political sub nexations to Michigan The Lake Shore of the state: divisions *10 (1892), 131 Smith, Treasurer Railway v.Co. Southern City 198; The 519, 196, Stilz v. 512, 31 N. E. Ind. of Logans 582; City Indianapolis (1882), Ind. The 81 of 225, (1877), and in our Seybold 59 Ind. port et al. v. Kocsis v. Chi applicable See judgment here. also: it is 24, 32, N. E. (1935), 362 Ill. 198 cago Park District City Kansas 141, Barnes v. 852, R. 847, 103 A. L. 758, 756, 10 519, 523, 222 2d S. W. (1949), 359 Mo. City Louisville 553, Gernert v. L. R. 2d A. of 1163, 1164, 51 Ky. 589, 590, 159 S. W. 155 (N. S.) 363, 366. R. A. L.
Appellant has also contended the Act unconstitu is park of tional for the reason that the board commis principally remains an administrative sioners body Indianapolis, while that give appellant representation indirect it does gives mayor board, upon the it also the the question upon power any to decide the
469 which a vote board.9 tie has been cast When legislature change provided in 196310 a the Act of membership of the board commissioners (increasing the board from four [4] to five [5] mem bers) provide representation so as to on such board taxpayers County, of all of the of Marion we believe it any properly upon appellant removed which could basis complaint. here make any
We are unable to find merit this contention appellant. finally contended that the title to ch. failing in to ex 279 of of 1961 defective the Acts 2, press subject §§1, Act and that 7 and 8 2 of ch. 397 of the Acts Act and §§1 original Act, amended, identify the 1963 fail to last contrary 4, Art. of Indiana. Constitution §19 (p. 641) 1961 Act The is: title 639), p. §3, (Acts Repl., ch. §48-5503, Burns’ 9. part: states quorum, a constitute majority shall members . A “. . binding unless authorized shall be board action of such and no duly regular members, called or by majority at a any ques- But, meeting in case of tie vote special thereof. mayor tion, .” shall decide. . . 144, §1C, Acts as added ch. Acts ch. Repl.). (Burns’ §48-5501b, §1, p. (as of Indiana amended of the Constitution 11. Art. §19 1960), provides: Nov. amendatory “Every shall act, amendment of a code act or subject properly connected there- and matters one embrace but subject expressed
with; title. But if shall be amendatory act, subject act amend- in an be embraced title, code, expressed *11 not the ment of a which shall be amendatory only act, as to so much thereof The void act or amendment of code be expressed as shall not be in the title. paragraph apply original requirements of this shall not of codifications of enactments laws. every “Every amendatory act and amendment of a code shall identify original code, amended, act as last and the sec- published or subsections amended shall set forth and be tions length. required paragraph at full The identification may by citation made reference.” concerning the de- “AN amend the law ACT to public parks partment class and in of the first cities adopt class that in cities of the second extending in relation to law the first class the boundaries juris- park and the district department public parks of such diction increasing cities, providing members number park in con- of board of commissioners broadening powers extension, nection with such commissioners, park and authoriz- the board building ing of a cumulative the establishment fund.” (p. 1101) 1963 Act is:
The title ‘An Act con- amend an act entitled “AN ACT to public parks” cerning of “department cities duties, class, defining powers and its the first purposes, creating each taxing park district conflicting class, repealing of the first being declaring emergency,’ laws, an same Chapter 1919.” 144 of the Acts of argued the 1961 that the title to Act enough additional broad to include the jurisdiction given common council cities to the county- under Act becomes class which first wide. 1961 Act
The title to the is sufficient to indicate park the boundaries of the district that cities being first class some second class cities are extended, park that of the board of the members being increased, are commissioners broadened, powers board’s are to be and that the es building tablishment of a cumulative fund is author previously power common council had the ized. The property a tax on all the district. extended, authority was the tax When the district auto thereby larger matically extended over the area. was indicating in it an item the ex A which carries title
471 taxing district, puts on notice who tension of a those necessary consequence, rely that a on such title agency area and must tax is also increased some question in Act of es the tax. There is no collect tablishing or a a new court or a new common council legislative body. State, R. R. P. new or administrative Iroq. (1956), Dist. et al. 235 Co. et al. v. Cons. Ct. applicable. have Ind. 133 N. E. 2d is not We frequently complete be a index or held a title need not sufficiently compendium, expresses a that it sub but gives ject upon a liberal construction it such no when legislators public apprise and the tice as to legislation. general subject Orbison v. matter (1962), 385, 393, Welsh, 242 Ind. 179 Governor et al. Wright-Bachman, Hodnett Inc. v. N. E. 2d Al (1956), 133 N. E. 235 Ind. 2d Indiana Milk Board 210 Ind. bert v. Control 283, 288, 200 N. E. complained further that each section of 1961 and not cite the latest
of the Acts does original However, Act. amendment to the each original of each to the section section Act refers amended, directing last as that section was thus person interested to the attention last actually amendment of such section. This is the exist being interpretation ing A amended. strict which law unnecessarily require that reference be made would section, being another amendment to is not some purpose, amended, a useful would not serve but would only result confusion chaos is not to be commended. appellant’s find no substance
We contention Acts were the titles constitu- tionally defective.
Judgment affirmed. Jackson, J., Myers, JJ., concur.
Arterburn and participating. Achor, J.,C. dissents.
Dissenting Opinion. parties nor my opinion neither C. J. —In Achor, really majority opinion considered this court its significant grounds here upon which the statutes *13 1919, placed controversy 144 of as of the Acts [ch. 1961, ch. 397 by of and 279 of the Acts amended ch. necessarily be considered of of would the Acts 1963] presented. were unconstitutional if the issues majority opinion. Supplemental footnote to 1964, July 1, J., by Achor, dissenting opinion on C. A Cerajewski placing cases of on the case reliance been filed this 650, R. 67, McVey A. L. (1947), 2d 171 N. E. 225 Ind. 72 v. (1949), 227 Dept. Health 723; Rappaport Public and v. 150, held the 2d which 2d 88 N. E. Ind. 87 N. E. un taxing hospital created to there and districts additional constitutional. The dissent are . . decisions further states nearly upon in and relied cited landmark have been cases which newly constitutionality created every aof case wherein .”, speci authority bonding . . and has been established Library Gary fically referring Datisman, Public etc. v. to: Flood (1960), 55; Board 2d Book 241 170 E. v. Ind. N. (1959), 2d 156 N. E. Control Comrs. etc. et al. 239 Ind. 87; Conservancy (1958), Ind. Martin v. Ben Davis Dist. Jefferson-Craig N. 2d Protsman Consol. N. E. v. Corp. Dept. (1953), School 231 Ind. E. 2d Pub. 2d 495. Sanitation Solan 229 Ind. E. 97 N. v. (See dissent.) note 5 of Book, Datisman, The facts however are otherwise Martin, relying Dept. cases instead and Pub. Sanitation Cerajewski distinguished Rappaport, them and them and held Protsman, applicable. remaining case, is not And in the reference interesting appearing made to an in 25 Indiana Law article page 325, pointing up problems posed at Journal Cerajewski Rappaport, expressing and criticism of those decisions. Fortunately opinions of most Indiana de- reasoned well many years meaning of for refused to extend the cisions the have provision pro- limitation of the Indiana Constitution to debt political financing hibit the creation of or new subdivisons public improvements paid of local bond issues assess- special imposed ments taxes. The common law no limi- debt whatever, tation attempt not we should at this late date by engrafting turn the clock backward additional words into provision limitation debt of the Indiana Constitution to make it more restrictive than at the time its enactment. poses question. This circumstance a serious Shall this ignore appellant court present the fact that has failed to these opinion constitutional defects and hand an down presumptively constitutionality sustains the acts, obligation, or is there an under all the cir- recognize case, cumstances these constitu- tional deficiencies remand the case to the trial court upon for a determination based these further considera- tions ? my opinion that,
It the reasons hereafter stated, together, when considered this latter course appropriate. action is apparent “friendly
I. It seems ac- this was adversity complete tion” in which there not a was following appear interest. The facts which of record lead to this conclusion. plaintiff-appellant The was a non-urban resi- County, and,
dent of Marion therefore, although she may legally represented have similarly “all others situated,” complaint, as stated in her did she *14 respects represent all in residents the cities and County towns in Marion outside of the Indianapolis, who, my opinion, in greater have the challenge constitutionality cause to of the act. appellant gave only
2. partial The consideration major grounds challenging to the for the constitu- tionality brief, gave of the act in her and no con- grounds might sideration to other have been asserted. appellant reply The did not file a brief to con- by
trovert appellees’ contentions asserted brief. appellant 4. Neither petition filed a for re- opinion expressed though majority hearing,1 even only this three of the five members the views court. controversy pri- merely a between
II.
not
This is
parties. Rather,
action
filed in the name
is
vate.
purports
single person
it
to
a
action. Thus
a
class
present
on behalf of hun-
valid and bona fide case
a
people
presumably
become
who
dreds of thousands
judgment
entered therein. Thus we here
bound
great public
interest.
have a case
generally
Admittedly
are
be en-
amicable actions
couraged,
amicable action in the sense in which
“An
but
presupposes
. .
there
a
are used .
that
is
these words
parties.
Anderson,
dispute
...”
Ac-
between the
real
Judgments
(2nd
1951) §104,
Declaratory
ed.
tions
Judgments
(5th
1925)
ed.
Freeman
§511
at 169. 1
1101 states:
at
“
judgment
been held that the
. . . And it has
‘friendly’
taxpayers
certain
mandamus suit
against
compel
town officers
the is
and officers
upon taxpayers
conclusive
suance of bonds is not
People
[Citing
parties
ex rel
thereto.
. . .”
R.
298 Ill.
v. Illinois Cent.
Co.
Childress
516,
In the case stated: “ just proper even the is ‘While it
rights fair faithfully one public . . . be concluded should litigation, were involved which the matters considered, presented it should rehearing filed, the same petition been 1. Had ordinarily addressed denied, opinion have been this would However, present rehearing. under petition for denial of such support belatedly, circumstances, my dicated. opinion written originally having in- my been to do so intention dissent —
475 emphasised litigation fide, the must bona beginning fair and from honest the to the end. ’” 516, 518-19, Ill. . . . N. E. at [298 (1921), portions quotation from court’s Lindsay v. Allen 637, 82 S. Tenn. W.
171.] controversy In what manner are the statutes in viola- tive of the constitutions of the of State Indiana and of majority opinion the United States? The of court this that, does not consider the fact under the statutes question, the municipal residents of the several cor- porations County obliged within Marion would be to pay operation enlarged city taxes the Indianapolis park system; whereas, the residents obligated were pay not to for the separate park systems municipal of the other several corporations county. very apparent unequal
Because treatment imposed upon would which the statute cause to be towns, other residents these cities and which issue parties majority considered was not or opinion opinion, I am of the that the statute is violative Art. Indiana Constitution2 and the §23 to the U. 14th Amendment S. Constitution.3 Furthermore, parties gave neither nor this court providing consideration to fact that statutes Indianapolis-Marion County park system purported bonding authority to establish Assembly grant any citizen, General shall not 2. “The citizens, privileges which, upon class of or immunities the same terms, equally belong shall all citizens.” Art. §23 Constitution. Indiana any . . shall 3. “. No state make or enforce law shall abridge privileges or immunities of citizens of the United any States; or deprive any nor person state life, liberty, property, process law; deny due person without nor jurisdiction equal protection its within the laws.” Sec. 14th Amendment to the U. S. Constitution. *16 overlaps, park systems to, which and is in addition municipal county corporations of the other in the which op bonds, are also authorized to for the tax and issue municipal park systems. has eration of court their This separate rule on two occasions asked to on the been validity statutes, and in each this court such instance held be in violation of the them to constitutional upon in limitation bonded as contained indebtedness Cerajewski 13, Art. of the Indiana Constitution.4 §1 650; Rappa McVey (1947), 225 N. Ind. 72 E. 2d v. port Dept. (1949), 87 Public Health 227 Ind. v. are have E. 2d landmark which been N. 77. These cases upon nearly every wherein the cited and relied in case constitutionality newly taxing of a and bond created ap ing authority has been established.5 The failure pellant rely upon cases, which are di to cite and these light rectly explained only point, in in can be character of this action. the amicable taxing legislature creating new The acts con- the above bonding to avoid as devices authorities prior of this limitation, decisions debt stitutional acts, of this construing and the decision such court interesting present com- case, an instant court mentary. corporation State municipal in this political or “No any an purpose to or for manner indebted
ever become per exceeding on the value aggregate centum two amount of the taxable corporation, ascertained to- property such within county taxes, previous to by the in excess void: for State assessment the last obligations indebtedness; incurring and all bonds such given corporations,, amount, shall be of such war, §1, Provided, Indiana Art. That time .” ... Constitution. Library (1960), Gary 241 Ind. Public etc. v. 5. Datisman etc. 55; Flood Control Comm’rs v. Board Book E. 2d 170 N. 87; Martin v. Davis 2d Ben (1959), 156 E. Ind. N. 239 2d Conservancy (1958), Ind. 153 E. 238 N. District Corp. Jefferson-Craig Consolidated School Protsman v. Public Sanitation, Department 527, E. 2d Ind. N. (1951), 229 E. 2d 495. City Ind. N. Hammond v. Solan avoiding purpose Device One-. For the con- ap- prohibition, legislature, stitutional with proval court, many municipal of this has created new corporations, perform which have been authorized to governmental previously per- function which had been existing municipal corporation. formed a then Since against prohibition there no was in the constitution corporations municipal the creation of with new each bonding authority, provided this device ready vehicle lim- avoid constitutional upon municipal itation the bonded of a indebtedness though corporation, bonding even the tax burden and authority upon people municipality within was corpora- increased with the creation of each such new *17 Thus, hospital corporations, corporations, tion. school library building corporations, public corporations, and others, created, separate taxing were each with and bonding authority.
However, the characteristic of all corporations such that, geographical they area was over which had control, performance each was exclusive in the particular function pre- which was it created. As viously noted, distinguishing aspect this of .such cor- compared porations, park system with with concerned, presented we which are here ap- was not pellant’s brief, nor was majority it considered opinion. legislature
Device Two: The has also authorized the many “boards,” creation of “commissions,” “depart- ments,” “authorities,” and corporation within the struc- single existing of a municipal corporation, ture and in- agency authority each perform vested with to one governmental municipal corpora- of a functions tion, separately and authorized each to issue bonds and taxes. legal logic remarkable court, and dubious
This with See: validity dexterity, upheld of such statutes. has Indpls., et al. City etc. Archer, Jr., et al. v. etc. cited 607, and cases E. 2d 122 N. 233 Ind. compounded practice been has therein. The evil legislature a created the fact that under it bonding taxing multiplicity authorities and formerly a considered perform segments of what was Thus, that single governmental it follows function. department” single city could be a the “street within separately Further- tax and issue bonds. to authorized single performing department, a function more, that municipality, government could be subdivided within assigned seg- “authorities,” subsidiary each with into thorough- providing and streets function ment tax and bonds. fares, authorized to issue and each support Personally, I rationalization find no bonding within authorities these additional municipal corporation. single To do of a the structure attempt comparable defend a man an so is ground charged forgery on the offense with only by by him, really but thumb committed was forefinger right hand. Even the Bible has of his body say something members the same about all 12:14-20); yet purpose for the being (I. one Cor. indebtedness imposing additional bonded corporation we have said single municipal within a *18 they are not one. existing
I that we do not recommend disturb constitutionality implementing taxing authorities, approved considered and existence has been whose opinion strongly however, of the court, I am great legislature as to exercise caution that the should practice. extension further Device Three: areWe now asked to extend the practice above into new and additional of mu- areas nicipal by authorizing law the creation of additional perform governmental “districts” which the same func- overlapping tion, with administrative and bond- ing authority, geographical within the same area where- being performed by in the same other function municipal corporations within the ascribed area. approve In this case we are asked to a law which purports park department to authorize the Indianapolis, conjunction awith district consisting County, operate parks all of Marion throughout County, levy Marion and to taxes issue operation parks. my opinion, bonds for the In purports the act which to establish this creature is un- constitutional, for two reasons: municipal corporation
First, it is itself, au separately levy thorized under the constitution to merely Rather, issue bonds indebtedness. it is an implementing authority within the framework of exist ing governmental authority. Secondly,because aas mu nicipal body, authority it does not have exclusive responsibility operation parks for the within the put operation area for which it If is established. into city-county park the result will be that district authority operate parks throughout county, in cluding county, the several cities and towns within the authority which have the same within their several corporate Thus, distinct boundaries. a situation would exist where the several cities and towns in Marion County Indianapolis] [other than would continue to operate separate parks their and to taxes and issue operation; newly whereas, bonds their created Indianapolis-Marion County park might district exer authority cise the same and tax and issue bonds there *19 taxpayers for. The result be that the sev would County eral Marion than cities and towns in [other Indianapolis] burdened with a double would be single bonding performance authority, of a for the governmental operation public parks function —the government. reason, I municipal For this additional unconstitutional, pur it believe the in that law to be ports bonding au to authorize double taxation thority authority not authorized. To at where such is tempt pervert the fundamental law to do so is to Cerajewski in state. This court so held the cases of McVey Rappaport Dept. Health, v. Public v. supra. p. 4, practice making through
This end runs around and authority legis- constitution, special with from the expediency, lature for maneuver on the basis mockery concept stopped. should be It the basic government govern- of constitutional which assures us municipal corpora- ment law and men. If require bonding authority additional tions purpose carrying necessary gov- out functions ernment, may case, they be true this can and acquire authority by clearly should this direct and stated amendment to the constitution. meantime, my opinion,
In responsi- it is the guardian court, bility, of constitution, this as the by saying, permitted you line we hold the have go far, but hence forth in all instances where the practice approved has not been it is and will be con- demned. Dissenting Reported E. 2d 755. N.
Note. —
Opinion reported