*1 Mary MURPHY, Appellant L.
(Plaintiff below), SCHILLING,
Keith Trustee of Fairfield
Township, Tippecanoe County, Indiana, Elly, Murtaugh
Ronald James F. Martin, Individually
Albert E. and as
mеmbers of the Board of Fair Township, Tippecanoe County,
field In
diana, Sendak, and Theodore L. Attor
ney Indiana, General of the State of
Appellees (Defendants below). 2-577A186,
Nos. 579S135.
Supreme Court of Indiana.
May 22, 1979. *2 1975, Murphy sued the September, Trustee, of the Ad-
Township
the members
Attorney General of
visory Board and the
ground
on the
Indiana for her commission
requirement constitutes
the freehold
of law
arbitrary
an
denial of
under the Fourteenth
Constitu-
Amendment to the United States
I,
12 and 23 of
tion and Article
Following the
Indiana.
Constitution of
facts,
rendered
the trial court
stipulation
the defendants.
judgment filed in the Court of
appeal
The
was
fully
by Septem
Appeals and was
briefed
ber,
September
1977.
Murphy
petition
filed a
appellant
re
transfer,
only 15 months
alleging that
which she
48-month term for
mained
urged
thеrefore
originally was elected. She
immediately
grant
this Court to
transfer
disposition of the issues
and render a final
Chosnek,
appel-
Lafayette,
Edward
error in
Unfortunately, due to an
raised.
lant.
Court, the
by this
handling
of the case
Sendak,
Gen., Arthur
Atty.
Theo. L.
oversight
misplaced. The
case bundle was
Gen.,
Perry, Deputy Atty.
Thaddeus
Indian-
when earlier
brought
attention
was
to our
Hoffman,
apolis,
Lafayette,
J. Frederick
a motion
year
appellees
filed
this
appellees.
moot,
the term
appeal
since
dismiss
had
Murphy was elected
of office for which
GIVAN, Chief Justice.
way con
appellant has in no
expired. The
petition
This cause is on
to transfer under
her
delay
in the decision
tributed to
4(A)(10).
emergency provisions
of AP.
filed a brief
by
has
this Court. She
facts, according
stipulation by
The
to a
has
to the motion to dismiss
opposition
parties,
Mary L.
plaintiff-appellant
are that
issues
us to decide the
requested
specifically
Murphy is a bona fide resident of Fairfield
questions
arising in the case. Since
County.
No-
Tippecanoe
On
recur, and
appeal
likely
are
raised
5, 1974,Murphy
duly
vember
was
elected as
this Court
delay
was the fault of
Advisory
a member of the
Board of Fair-
will deсide the
appellant,
that of
and not
Township,
field
which election was certified
The motion to dis
on their merits.
issues
following
Tippe-
day by
the Clerk of the
hereby
miss is
overruled.
However, when Mrs.
canoe Circuit Court.
legislation
view that
The traditional
Murphy attempted to assume the duties
equal protec
will be sustained
ground
the office
refused on the
she was
any
it is shown to
challenge
take office
tion
if
qualified
that she was not
legiti
relation to
rational or reasonable
under IC 17-4-28-1
§
[Burns 1974].
years been
purpose has in recent
requires
Advisory
mate State
statute
members of
of the United States
refined
decisions
Board to be resident freeholders of the
in
statute
Where the
township. Murphy
no real estate in
Court.
owns
based
Hence,
legislative
an-
volves
classifications
Township.
Fairfield
at the first
affecting “fundamen
Board,
“suspect
criteria”
meeting
nual
of the
up
now be
will
rights”,
va-
tal
the enactment
appointed Albert E. Martin to fill the
necessary to
to be
only if it is shown
position.
cant
held
implement
a compelling
Hovey
As the Court stated in
State
interest.
State ex
Schilb v.
Kuebel
Riley (1889)
rel.
21 N.E.
Ind.
502;
Shapiro
L.Ed.2d
v. 890, 891:
Thompson (1969)
immediate
“Offices
class under
600. Appellant argues
that be-
every
mention
not such as
elector
Township Advisory
cause the
Board statute
*3
may
solely
hold
justly
right
claim a
to
on
right”
involves the “fundamental
to hold
voter,
ground
the
that he is a
and all
public
employs
“suspect
office and
a
classi-
offices,
voters
entitled to hold
but
are
wealth,
fication”
on
apply
based
we should
they
Legislature
offices
the
which
exacting
this
judicial
level of
review in ad-
may
persons by
competent
pre-
restrict to
judging
constitutionality.
its
qualifications
scribing what shall be the
It is somewhat unclear whether a factual
of those who enter them.
It is within the
situation,
bar,
as in the case at
is to be
by
Legislature,
of the
virtue of
treated
process
under the due
clause or the
general power,
require
its
to
the
equal protection clause of the Fourteenth
be
officers of
class shall
selected
Amendment.
See Zablocki v. Redhail
from
political parties,
different
or that
(1978)
374,
673,
434 U.S.
98 S.Ct.
54 L.Ed.2d
they
рersons
be
peculiar
shall
skill and
(Stewart,
618
J. concurring); San Antonio
experience.”
School
Rodriguez (1973)
District v.
411 U.S.
However,
Assembly
the General
has not
1,
1278,
93
(Stewart,
S.Ct.
36
16
L.Ed.2d
J.
given
statutory
been
create
carte blanche to
concurring). Nevertheless,
appellant
office-holding.
qualifica-
restrictions
No
alleges the statute
both
violates
constitu-
may
arbitrary
capricious;
tions
rath-
be
provisions,
tional
we will consider the con-
er, they
be
must
reasonable
based
together.
tentions
grounds
substantial
which are natural and
It has been a longstanding princi
subject
inherent in the
matter
the enact-
ple of constitutional
law that where a state ment.
ex
Marion
State
rel. Buttz v.
Cir. Ct.
grants
purpose
the franchise for the
of se
7,
(1947) 225 Ind.
Goldthait
172 Ind.
87 N.E.
(1972).
133. L.Ed.2d 80
through
original
advisory pay a share of
township
pur
this interest
payments,
board statute was enacted in 1899. Its
rental
we think
his
pose
greater
levying
provide
was to
the actual
too far removed from
township taxpayers, who bore the entire
striking down the
justify
the tax to
burden
supporting
schools and
particular
the ease
bar.
statute in
government.
Miller
Jackson
charges
owner of real
Whether the
503, 512,
102, 106.
178 Ind.
99 N.E.
cover his
additional rent
his tenants
empowers
The act
board to oversee
immaterial, for
tax assessment is
operations
trustee
re
respon-
the owner must
all cases assume
quiring
the trusteе
submit
payment. Fur-
sibility for their ultimate
board’s approval
budget
an annual
for the
thermore,
no
since non-freeholders
coming year
report
and an
of his
annual
little,
taxes,
any,
if
incen-
there is
expenditures
previous year.
IC
tax-paying
them to
freehold-
tive for
treat
17-4-28-1, 3,
excep
5. With
three
but
*4
imposi-
the
equity and fairness in
ers with
tions,
the board has sole
to recom
To hold this
tax rates.
property
tion of
mend
county
to the
council
salaries and
the
be to create
would
statute unconstitutional
benefits
paid
ap
to be
to all
and
elected
whereby those who
perverse situation
the
pointed
township.
officers of
the
IC
township govern-
pay
support
to
taxes
17-4-28-1.1, 1.3,
au
1.5. The board is
§§
those who
mercy
at the
of
ment would be
levy
property
thorized to
taxes on the real
do not.
in the township
expenses.
IC
all
17—4-28-1,2. The
is further vest
board
only
that
statutory requirement
ed
duty
money
with the
to borrow
in the
township
may serve on
resident freeholders
emergency
event an
exists
expendi
has
sound and substantial
advisory boards
a
ture of any sums not included in the exist
is
in
The restriction
basis in law and
fact.
ing
levy.
estimates and
17—4-29-3.
IC §
unreasonable,
arbitrary, capricious or
not
funds,
The borrowed
as
as interest
wеll
legiti
but bears a rational relation
thereon,
eventually
paid by
will of course
be
statute was
purpose for which the
mate
generated
on real
from levies
it does not
We therefore hold
enacted.
township.
property in the
In the case at
of equal
operate
deprive
non-freeholders
bar,
locally-generated
all
rev
99.28%of
tax
by reason
process of law
protection or due
enues
real
emanate from such levies on
right.
of a denial of a fundamental
property.
that be
Appellant
contends
further
legislature
The concern of thе
that town
ownership to
property
cause the criteria of
ship taxpayers
protected by
be
such adviso
advisory
is
township
board
serve on the
clearly
boards
that the reve
twofold:
“traditionally disfavored” clas
based on the
generated
nue
ex
property
from
taxes be
wealth,
should be
the statute
sification of
pended
frugal and
manner
in a
efficient
judicial
higher
level of
subjected to
be
property
tax rates
Board of
Harper Virginia
v.
review. Under
level
equitable
maintained at a fair
1079,
663,
(1966)383
86 S.Ct.
Elections
U.S.
which
impose
will not
an
burden
intolerable
169,
the statute
argued,
it is
16 L.Ed.2d
tax.
bearing
weight
those
We
be declared unconstitutional.
should
the sole
of this tax
Freeholders are
source
proposition. In
more
accept
cannot
They
revenue.
have a direct stake in
Independent
case of San Antonio
recent
expenditure
imposi
of local monies and the
(1973) 411
Rodriguez
v.
U.S.
District
School
tion of
property
tax rates. Converse
1278,
16,
1,
Mr. Justice
36 L.Ed.2d
ly,
those
residents who do not own
issue, citing
two
addressed similar
real
Powell
an
concern
indirect
First,
it was not
controlling.
over
factors as
recognize
taxes.
we
While
school-financing
case that the
City
shown in that
proposition in
Phoenix v. Kolod
disadvan
ziejski
204,
1990,
peculiar
(1970)
system operated
26
90
U.S.
S.Ct.
as indi-
effectively
tage
any
fairly
class
definable
may
that a renter
gent
composed
persons
township advisory
whose
board member
in-
comes are
designated poverty
beneath the
impermissible
is not an
to freeholders
22-23,
level.
U.S. at
at
S.Ct.
Thus,
applying
wealth classification.
Here,
36 L.Ed.2d at
Rodriguez,
36-37.
as in
classifica-
legislative
test
traditional
appellant has not
demonstrated
tions,
find that
reasonable
this statute is
requirement operates
freehold
to discrimi-
not
purpose
rational in
and does
scope,
in
indigents.
nate
No evidence has
offend the
clause.
tending
any
been adduced
to show
relation-
however,
case of
Appellant,
points to the
ship
ownership
between wealth and the
Turner
Fouche
real
in
Fairfield
of which
24 L.Ed.2d
the facts
fact,
the State as a whole.
we would
quite
similar to those at
In that
bar.
note that it is not all that uncommon to
case,
invidiously
the Court struck down as
persons
wealthy
find
quite
living
who are
discriminatory
requiring
a statute
school
apartments
rented
persons officially
Never
members to be freeholders.
board
as indigent
prop-
classifiеd
residing
real
theless,
the Court refused to exclude
erty
which
own.
might
“possibility that other circumstances
Second, in Rodriguez
personal
the lack
present
themselves in which a
financial resources did
engender
not
ab- qualification
office-holding
could sur
deprivation
solute
education.
U.S. at
.
.
.
scrutiny
vive constitutional
1291-2,
judgment of the trial KUHN, Appellant Dorothy below), PRENTICE, HUNTER, PIVARNIK and JJ., concur. (Defendant KUHN, Appellee Charles
DeBRULER, J., opinion. dissents with below). Justice, DeBRULER, dissenting. No. 1-678A171. Fouche, In Turner v. 567, the United Indiana, Appeals Court of applied Court States District. First qualifications for hold- clause to 9, 1979. May
ing public was office. There the Court Georgia faced with a statute which created Rehearing Denied June 1979. boards, mem- school set their size at five bers, required each member of them to con-
be a freeholder. In this case we are
fronted with a which creates the statute board, member- advisory sets its three,
ship mem- requires that each
ber of it be a freeholder. Both boards
make influence financial decisions which delivery availability government
services to freeholder and nonfreeholder. Indiana, Georgia, as in a freeholder
any person who owns real estate. Both
Georgia and the Indiana town- school board
ship advisory statutory authori- board
ty levy on real estate situated *6 jurisdictions.
within their This property taxpayers in both
renders the real subject danger excessive
cases to the Indeed, regard,
taxation. in this
Georgia purposes, board levied for school
while the Indiana board levied vestiges township government, any such
strong case can be made out that
danger greater Georgia was much in the
situation. The Court concluded requirement the freeholder invidiously
Georgia scheme was discrimina-
tory in violation of the applicable and regard
clause. I that ease as we like- requiring
decisive here and as requirement
wise invalidate the freeholder holding the Indiana
advisory board.