181 Ind. 463 | Ind. | 1914
In 1895 appellants jointly owned and since have owned a lot abutting on a public street of the civil town of Windfall City, which they have at all times used jointly for public school purposes. In 1896 the board of trustees of the civil town proceeded under the law, familiarly known as the Barrett Law (Acts 1889 p. 237, §4288 Burns 1901), to improve the abutting street with a brick paved roadway.
The appeal is based on the claim that school property-was not subject to assessment for local improvements at the time of the proceeding involved in this case and that there was no valid law authorizing the judgment rendered.
The Constitution provides: ‘ ‘ The general assembly shall provide, by law, for a uniform and equal rate of assessment and taxation; and shall prescribe such regulations as shall secure a just valuation for taxation of all property, both real and personal, excepting such only, for municipal, educational, literary, scientific, religious, or charitable purposes as may be especially exempted by law. ’’ Constitution, Art. 10, §1. Pursuant to the authority granted in this provision, the General Assembly, by a provision in the general tax law of 1891, exempted from taxation school property together with other property within the class men
By §1, Art. 4 of our State Constitution, the people have issued a mandate to the legislature “to provide, by law, for a general and uniform system of public schools. ’ ’ This it has done and created administrative school corporations to which it has delegated authority to perform what is declared in the Constitution to be a State function. Manifestly the legislature has supreme authority over these agents of it, save only as it is restrained by the State Constitution. State, ex rel. v. Ogan (1902), 159 Ind. 119, 121, 63 N. E. 227, and cases there cited. The authority of the legislature over streets and highways is equally broad. 2 Cooley, Taxation (3d ed.) 1297; 1 Elliott, Roads and Sts. (3d ed.) §§25, 26. Now, we have here involved school corporations which are purely subalternate governmental agencies .dealt with by the legislature by the act of 1903, supra, in relation to a matter of general public concern and of obviously material benefit to the property held by these school corporations. It is clear that the act is not in violation of the 14th amendment, as claimed.
What we have said disposes of all the objections which counsel for appellants specifically lodge against the validity of the act of 1903, supra. But in view of the broad importance of the matters involved in the act, it is not out of place to extend somewhat the consideration. The intent of the act is to give to the Barret Law and succeeding acts relating to the improvement of streets by assessment, the very effect
It is well settled that property in use for public or governmental purposes cannot be sold on execution or other legal process. President, etc. v. City of Indianapolis (1859), 12 Ind. 620; Lowe v. Board, etc. (1884), 94 Ind. 553; Klien v. New Orleans (1879), 99 U. S. 149, 25 L. Ed. 430. This rule is generally applied to the sale of school and other real property to pay local assessments for public improvements. 1 Page & Jones, Taxation by Assessment §§582, 586; 2 Page & Jones, Taxation by Assessment §1077; 2 Elliott, Roads and Sts. (3d ed.) §675. The rule is obviously founded on public policy and not on any specific constitutional or statutory prohibition. Public policy is what the people in their fundamental law have declared it to be, or what their governmental agency, the legislature, acting within its powers, has enacted, or the interpretation of these laws, fundamental or occasional, by the courts. The necessity for acquiring and holding, permanently and without interruptions, property for governmental purposes and for schools is involved
This question is not, however, necessarily involved in the case before us, as the court did not in its judgment declare and order foreclosed a lien against the school property. Nor did it decree a sale of the school property to satisfy such lien. . While execution and sale thereon might not be had to satisfy the judgment, a mandate to compel its payment would be awarded. Appellants, as the holders of abutting real estate, were made parties to the proceeding to improve the street in question, under a law which, it was deemed, authorized the assessment of their property as beneficially affected, in common with the other abutting property held in private ownership. They appeared by their officers and, electing to pay the assessment in ten yearly instalments with interest, signed an agreement to waive irregularities and to pay as provided by the law. On this agreement the trial court rendered a personal judgment against appellants and the question before us is as to the validity of that judgment. Such an agreement entered into by a property owner pursuant to the act of 1889, as amended in 1891 (Acts 1891 p. 323, §4291 Burns 1901), to secure the right to pay an assessment in instalments has uniformly been held to be a new and independent undertaking, upon a sufficient consideration, which imposes upon the person executing it a personal obligation to pay the assessment and subjects him to a personal judgment. Hayes v. Shirk (1906), 167 Ind. 569, 578, 78 N. E. 653; Wayne County Sav. Bank v. Gas City Land Co. (1901), 156 Ind. 662, 59 N. E. 1048; Edward G. Jones Co. v. Perry (1901), 26 Ind.
While there is much confusion and conflict of opinion on the question of the assessment of school property for local improvements it is said in a late work: “There is no doubt that the state can make it subject to such assessments, unless restrained by the constitution, or, possibly, by some lawful contract or trust where it comes from the United States; but the difficult matter is to determine whether it has done so. Here, as in other cases where public property is involved, the subject is viewed by different courts from two different standpoints. In some jurisdictions the courts start with the proposition that all property covered by the general terms of the statute, and not specifically exempted, is included, and that school property, if specially benefited at least, as it often may be, is assessable for local improvements. Other courts, however, finding it inconsistent with the special use to which school property is devoted, especially where the land has been given by the United States to the state in trust for school purposes, and deeming that the legislature would not so divert it or the school funds to the payment of local assessments without specifically or very clearly so providing, hold that such lands are not subject to local assessment.” 2 Elliott, Roads and Sts. (3d ed.) §676 and cases there cited; see, also, 2 Cooley, Taxation (3d ed.) 1234-1236; 1 Page & Jones, Taxation by Assessment §586; 2 Page & Jones, Taxation by Assessment §1077; Hamilton, Special Assessments §281; 28 Cyc. 1117. In Edgerton v. Huntington School Tp. (1890), 126 Ind. 261, 26 N. E. 156, the sale of congressional school township land to satisfy an assessment in aid of the construction of a public ditch was enjoined and the assessment held unauthorized. This was done on the grounds that the ditch law did not expressly authorize the assessment; that such lands were granted by Congress in trust for the use and support of the public schools and had
As the balance due appellees on appellants’ assessment was a mere matter of computation and as the act of 1903, supra, expressly placed the duty to pay on appellants, no reason occurs to us why appellees might not have compelled payment by mandamus, but that argues nothing against the vadility of the judgment for the amount.
Judgment affirmed.