178 Ind. 1 | Ind. | 1912
Action by appellee as a taxpayer, and a patron of the public schools of Dallas township, Huntington county, Indiana, to enjoin the school town of Andrews and the school township of Dallas, in Huntington county, Indiana, from erecting a school building in the town of Andrews, Indiana, which is in the township of Dallas, on a site within 500 feet of the Wabash railroad, where it passes through said town, on the theory that the act of the legislature ap
The demurrer to the answer to this complaint was sustained, and is the principal error relied on. The answer is an admission of many of the allegations of the complaint, and, in substance, is that defendants admit that pursuant to petitions filed with the proper public officers, and signed by the requisite number of legal voters within the respective corporations, and proper and legal notice given, there was held an election on January 23, 1912, for the purpose of determining whether a joint schoolhouse for grade and high school purposes should be constructed to serve the school town of Andrews and the school township of Dallas outside of the school town, jointly, and they further admit that said election resulted in a majority of the votes of said corporation being east in favor of said petition; they admit that after said election the township trustee and the advisory board of said Dallas township, and the board of school trustees of said town of Andrews, held a joint meeting with a view to taking the necessary steps to construct the proposed joint school building, and at a meeting, duly convened for that purpose, held February 12, 1912, a motion was duly presented and adopted, to the effect that defendants proceed to employ an architect for the purpose of preparing plans and specifications for said school building to be erected on the site of the present school building within said town of-Andrews. They admit that it is their purpose to erect said joint school building on the site of the present building within said town of Andrews, and that said site is, and said buildings when erected will be, within 500 feet of a steam railroad, viz., the Wabash railroad, where it passes through said town of Andrews; that said site does not extend beyond 500 feet from said railroad, and when constructed, as proposed, said building will be 470 feet from said railroad.
Further answering the complaint and justifying their acts
An act of the General Assembly approved March 4, 1911 (Acts 1911 p. 463), provides for the erection of joint schoolhouses for joint graded schools in towns and that part of townships outside of towns. The third section of the act provides for the joint payment for the work prorated according to the assessed valuation of the property in the two corporations.
Appellants were proceeding under the latter act when enjoined upon a complaint and answer showing that the proposed building would be within 500 feet of a railroad.
Appellants contend (1) that the statute was not intended to apply to the construction of school buildings on existing sites; (2) that being a highly penal statute, it is so ambiguous and uncertain in many respects as to render it ineffective; and (3) if such construction must be given it, as to render it unlawful to construct or repair an existing building on an existing site, or on ground which had previously been acquired for school purposes, it is unconstitutional, as
In the case at har, it is shown that if the use of the land and buildings for school purposes is discontinued the property reverts to the grantor, and it then becomes clear that the use of the property is denied, and its value is taken by the act.
Appellee’s position is that it is an exercise of the police power to protect life and health, and that it is not objectionable as possibly working a loss or hardship on school corporations, even to the requirement of abandoning existing sites and the loss of their value.
If we were to hold that this act applies to existing sites, while they may present the identical objection pointed out by the statute, we would be forced to declare the act invalid, as the taking of property without due process of law; but by reading into it what is necessary to save it from unconstitutionality, it may, to the extent of the question here involved—the proximity of a railroad—be saved. If we should read into §1, supra, the words in parentheses, “that
The judgment is reversed, with instruction to the court helow to sustain the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.
Note.—Reported in 98 N. E. 628. See, also, under (1) 36 Cyc. 976; (2) 8 Cyc. 778; (3) 8 Cyc. 864; (4, 5) 15 Cyc. 652; 16 Am. St. 610; (6) 35 Cyc. 928; (7) 36 Cyc. 1108; (8) 36 Cyc. 1205. As to uses for wMcli the power of eminent domain cannot be exercised in taking private property, see 102 Am. St. 809. Reported and annotated in 43 L. R. A. 1023.