North Township Advisory Board v. Mamala
490 N.E.2d 725
Ind.
1986
Check Treatment

*1 ADVISORY TOWNSHIP NORTH

BOARD; Angel, member of the Nick Board; Stel

North Bainbridge, member of the

la Board; Bruno Kozlowski, member of the (De visory Appellants Ad Below), fendants Pearson, Attorney

Linley E.

General, Appellant, MAMALA,

Horace (Plaintiff Trustee, Appellee

No. 1085S410.

Rehearing May Denied Pearson, Gen., Margarett Atty.

Linley E. Gen., Indianapolis, Atty. Knight, Deputy L. appellants. Komyatte & Komyatte, Richard P. Free- land, P.C., appellee. Highland, for GIVAN, Justice. Chief this Court appeal This is before 4(A)(8). Judge Pinkerton Ind.R.App.P. to entered a final order judgment and part: AND HEREBY ORDERED "1. IT IS de- that 1.0. 36-10-7-5 ADJUDGED in that and unconstitutional clared invalid contained proscriptions violates the it 4 of the Article 23 of and § Indiana." Constitution *2 726 permanent a The trial court issued restrain- tion. pro- Section of that article vides,

ing enjoining Advisory Board "The Assembly General shall not undertaking exercising power from or pass laws, special local or in any of the action to the statute. cases, following enumerated say: that is to (10) regulating county township busi- proce- 86-10-7-5 outlines the Ind.Code § ness;...." acquisition dures for the of land and the Section 238 provides, further "In improvement operation parks all cases in preceding enumerated Section, township having located in each and in all other cases where a general can applicable, eighty law be made all tion of not less than one hundred (180,000) nor general laws shall be opera- and of uniform thousand more than two hun- (204,000) throughout tion dred is located the state." four thousand that county in having more than two second An act of the must be afford 1980, fig- class cities. Federal Census presumption constitutionality. ed The Township ures reveal North of Lake Coun- challenger of the statute bears the burden ty population parameters fits within the presumption to rebut that and all reason parties agree, the statute. Both under the able doubts must be in resolved favor of data, Township 1980 census that North the statute's constitutionality. Ruge v. Ko only township currently governed by (1984), Ind., vach 467 N.E.2d 673. When is to a statutory classifica legislative parentage The tion, petitioner must demonstrate that 1927, 4, in p. is found Acts ch. 10. At all the classification is arbitrary capricious or 1927, times since has been or does not bear a relationship reasonable governed by separate regulating statutes legislative objective. to the Board Com operation township parks. Other missioners Allen v. townships have been included the stat- (1983), Ind.App., Jones governing Township, utes most nota- bly County. Calumet of Lake governmental only The fact one unit Amendments to the statute in 1975 and presently qualifies particular under a stat changed population parameters 1982 apparently ute and the statute was drafted resulting in exclusion of that one with unit mind does not render from the of the statute. See the statute unconstitutional if the terms of (Burns 1974), Ind.Code 17-4-40-1 Acts permit the statute would other units to 169, 1975, 1982, P.L. 8-5 and Acts P.L. §§ eventually qualify. State Election Board § (1982), Ind., 74; v. Bartolomei 434 N.E.2d 855-1985, Public Law 1 amended Ind. $ Lugar Dortch v. 266 purpose Code 86-10-7-5. The of the § N.E.2d 25. also We have held a statute amendment, alia, provide imter was to a may expiration provision not contain a time greater role for operate effectively preclude which would of the covered the stat- governmental other units qualifying from formerly ute. This control was exercised under the statute. State Election Board trustee. The amendment Behnke 307 N.E.2d required also appoint, subject trustee to approval park superintendent. Other The statute in the case at bar does permit Indiana appointment any provision not contain which would ei professional park managers; however, Ind. preclude other from even Code 36-10-7-5 is the statute man- § tually qualifying under the statute or dating an of this nature. See prevent would from fall Ind.Code 86-10-8-18. ing parameters outside the of the statute.

The holding general trial court based its on the We find the statute to be of a language of art. 4 of the Indiana Constitu- special nature and not a law. inquiry required special

A second level of law in ereation violation of the statutory art. when a classification is estab Indiana Constitution population. lished based on In such situa Attorney General maintains it is ra- tion, population must bear some rational profes- tional to the assistance of a the subject matter. Fur opera- sional to conduct the ther, the classification must be based on *3 any substantially developed park tion of of justifiable distinctions when considered the nature of Wicker. He contends the legislative goals. the context of the within record does not reveal that either Center or Doritch, supra. The trustee in the case at Townships have of the na- (1988), bar cites Heckler v. Conter Wicker, they ture of thus would not be 376, 187 N.E. 878. affected at this time if included in the population parameters. Lastly, he asserts appear legislation It would the in contro- promulgated has series versy regulate will of Wicker which, population based on Memorial Park. Wicker is in fact a sub- cities, regulate park opera- classification of stantially developed park in the second townships tions in the of the State. See populous township most of this state. seq. Ind.Code 36-10-3-1 et and Ind.Code Park Wicker consists of over 225 acres of seq. 36-10-7-1 et highly park land in a area. The urban golf, swimming A statute of this nature will contains tennis and facili- set not be ties. In addition there are numerous build- any if aside set of facts can be conceived to restaurant, center, justify ings including a Maryland it. McGowan v. social pavilion and maintenance facilities. How- 366 U.S. 81 S.Ct. 6 L.Ed.2d 393. ever, language of the statute does not case, pre- Under facts of this limit its to Wicker Park. sumption constitutionality Rather, apply park the statute does to all judiciary. should not be overridden facilities in North and other See, Ruge, supra. might eventually qualify The trial court is reversed. under the statute. trustee, arguing support PIVARNIK, DICKSON, SHEPARD and conclusion, trial court's contends the stat- JJ., concur. germane

ute's classifications are not DeBRULER, J., separate dissents with subject park regulations. matter of He opinion. calls attention to the fact the other two DeBRULER, Justice dissenting. (Center County in Marion and County) popu- Calumet in Lake with similar claim is filed in seek- Whenever a court governed by lations are ing judgment upon not the issue of whether figures, Under the 1980 census constitutional, statute threshold County upon tion of Center in Marion duties fall the court to first determine upper boundary exceeds the jurisdiction the statu its own and second to a tory requirement by less than five thou- claiming party standing. to show City sand citizens and Calumet v. Kokomo Plan Com'rs Lake less than four thousand Com'n boundary. judicial necessity, below the lower The trustee These are matters of argues irrespective that if a the fail- rational does must be addressed view, my this parties ure of to do so. population require- exist between and a plaintiff standing, ei- office holder has no professional ment for the individually representative or as park superintendent, then a township, should also have re- and voters of the been the residents quired both Center and Calumet Town- duty imposition superintendents, appoint professional park ships. He contends failure to have a re- trustee, legisla- upon the office of quirement of that nature results in the grounds. Id. ture, pure constitutional on the trial court to

I would therefore case, and dismiss judgment its

expunge express opinion no process in the merits of the constitu- upon the

this court question.

tional *4 & COMPA- BANK TRUST CITIZENS WASHINGTON, Appel- NY OF (Plaintiff Below),

lant/Cross-Appellee and Marion M. E.

Pearson GIBSON

Gibson, Appellees/Cross-Appellants

(Defendants Below),

Lafayette Production Credit

Association, Appellee

(Defendant

No. 86S04-8603-CV-312. Havill, E. Washington, William F.

James Statham, Clark, Statham, Allega, Gerald Krohn, Evansville, for McCray, Thomas & appellant/cross-appellee. Levin, Baker, &

Christopher E. Rubin appellees/cross-appellants Indianapolis, Marion M. Gibson. E. Pearson Gibson Ryan, Stuart Duffey, Thomas L. John C. appellee Lafay- Lafayette, for Branigin, & Ass'n. Credit ette Production GIVAN, Chief Justice. peti- appellees have both

Appellant and Ap- from the Court for transfer tioned in 463 N.E.2d opinion reported peals transfer. We petitions for grant both We histo- procedural adopt recitation of Appeals. by the Court ry as