173 Ind. 640 | Ind. | 1910
Lead Opinion
Complaint in the Grant Superior Court by appellant, a taxpayer and freeholder of the township, to enjoin the board of commissioners of that county from letting a contract to pave with brick a highway less than three miles in length, outside a city or town, under an election under section one of the highway act of 1907 (Acts 1907, p. 68, §7719 Burns 1908). The complaint alleges the regularity of all the proceedings up to the time of the proposed letting of a contract, for paving the highway throughout its entire length “with vitrified paving brick, with stone curbing, the whole resting upon a sub-grade of gravel or crushed stone ten inches in thickness, and thoroughly rolled, and the surface when thus prepared to be finished with a top surface of two inches of sand, and said vitrified paving brick when laid upon the sub-grade to be filled with English Portland
The basis of the complaint is that section sixty-three of the act of 1905 (Acts 1905, p. 521) as amended by the act of 1907 (Acts 1907, p. 137, §7732 Burns 1908) is unconstitutional (1) as authorizing the taking of the property of the individual without an opportunity to be heard and without due process of law; (2) on the ground that it discriminates between townships; (3) because the statute grants privileges and immunities to one class of persons to the exclusion of others; (4) because the statute is local.
It is also grounded upon the claim that the law, if constitutional, does not authorize the improvement of a highway by paving with artificial material or with brick. A demurrer was successfully interposed to the complaint, and that ruling is relied upon for a reversal of the judgment.
To the first point, it is sufficient to say that the proceeding is not under the power of eminent domain, but under the taxing power, and the point is fully covered in the case of State, ex rel., v. Board, etc. (1908), 170 Ind. 595, where the authorities are collected to the point that this method of taxation is not obnoxious to the 14th amendment to the federal Constitution. That in such cases the notice which is given, and the opportunity of the taxpayer to be heard at the time the assessment of the property is made for taxation in the given taxing district, are sufficient as furnishing the notice required. Harmon v. Gephart (1910), ante, 391.
By the statutes (§§7712, 7718 Burns 1908, Acts 1907, p. 137, Acts 1905, p. 521, §69), provisions are made for notice of the highway proceeding and for the assessment of damages and an opportunity is given for hearing within the rule required to constitute due process of law. See Bowliv v. Cochran (1903), 161 Ind. 486; Deane v. Indiana Macadam, etc., Co. (1903), 161 Ind. 371; Kuntz v.
To the point that it is discriminative against townships having a population of more than 30,000, the question has been lately decided adversely to the claim of appellant in Smith v. Board, etc. (1910), ante, 364, but in view of the public importance of the question we here elaborate that proposition. Does the denial of the right to townships including cities or incorporated towns of 30,000 or more inhabitants to improve streets violate article 4, §22, of the Constitution, as to the enactment of local or special laws as to laying out highways, or levying taxes for their construction? Highways are arteries of the State, and are subject to its direct control, or to its control through designated agents. State, ex rel., v. Board, etc., supra; Cones v. Board, etc. (1894), 137 Ind. 404, and cases cited. That the legislature may control the construction and repair of streets in cities, is well established. Lowe v. Board, etc. (1901), 156 Ind. 163; Gascho v. Sohl (1900), 155 Ind. 417; Sauntman v. Maxwell (1900), 154 Ind. 114. Whether in city, town or rural districts, such roads and streets are state highways, and it was evidently this fact which induced the enactment of the constitutional inhibition against special laws as to their laying out and construction, and requiring uniformity throughout the State, not as to the amounts to be levied in the several political subdivisions, but as to the procedure, and the manner of determining and fixing the character and extent of the improvement, and the taxing district. It is purely a question of the taxing power.
It is urged (1) that there is no good reason inherent in the subject-matter, or naturally growing out of it for such classification, and (2) that there can especially be no good ground for classifying townships including a city or incorporated town having a population of
The classification must not be arbitrary or whimsical. It must be based upon reasons which naturally inhere in the subject-matter — real distinctions. ‘ ‘ It is settled however, as a general rule, that it is within the discretion of the legislature to determine what property, as regards its location -with respect to the local improvement, shall be assessed.” Spaulding v. Mott (1906), 167 Ind. 67.
Whether it is by local assessment, or by taxation of all the property in a given district, it is done under the taxing-power, and the tax may be laid on all the property in the district, or b^ local assessment against the real estate benefited. In either case it is a state function, as to a matter over which the State has supreme control, except as limited by the Constitution. State, ex rel., v. Board, etc., supra.
A law which applies generally to a particular class of cases is not a local or special law. Consumers Gas Trust Co. v. Harless (1892), 131 Ind. 446-452, 15 L. R. A. 505. Whether the statute is applicable to a large or a small class, is a purely legislative question. Board, etc. v. Johnson (1909), 173 Ind. 76.
Classification of cities for the purpose of street improvements according to population has been held not obnoxious to a constitution prohibiting special acts conferring corporate powers, and requiring all general laws to have a uniform operation. Parker-Washington Co. v. City of Kansas City (1906), 73 Kan. 722, 85 Pac. 781. A classification of counties by population for public improvements was held valid in the case of Bingham v. Board, etc. (1906), 127 Wis. 344, 106 N. W. 1071. A classification of cities exceeding 50,000 inhabitants for the purpose of regulating the calling of barbers, has been held proper. Ex parte Lucas (1901), 160 Mo. 218, 61 S. W. 218.
Improvements can only be made in cities and incorporated towns with the consent of the council or board of trustees, and if they are made under the act, their control, maintenance and repair are left to the city or town. §7721 Burns 1908, Acts 1905, p. 521, §72. And while under §7726 Burns 1908, Acts 1905, p. 521, §76, the original cost of construction is levied on the whole property in the township, §7754 Burns 1908, Acts 1905, p. 521, §85, providing for control of all roads by the county commissioners, plainly is to be read with §7721, supra, giving cities and towns control over the highways within their boundaries, and the control of the
There can be no more reason for denying to cities of less than 30,000 population the right of a like form of government with those exceeding 30,000 population, than there is of denying to cities of more than 30,000 population the right to construct streets in like manner as cities and incorporated towns of less than 30,000 population, unless it can be said that classification by population may be made for some purposes and not for others. Por when we come to classification based wholly upon population, it embraces the very subject of taxation, such, for example, as taxation for library purposes, for teachers’ and firemen’s pension funds, for park purposes, and manual training schools, and unless we can say that there can be no reason for classification inhering in differences of population as affected by different needs, or as affecting or applied to the construction of roads, we are bound to assume that there is such reason. State v. Barrett (1909), 172 Ind. 169.
There can be no real difference in applying the rule of population to the wider area or taxing district, and embracing both urban and rural property. Denying to cities in excess of 30,000 population the right to build streets under this act, tabes nothing away from them which they previously possessed, but simply denies to them rights and powers which are exercised by smaller cities or taxing districts, with respect to their taxing powers, for when we come to cities, for purposes which do not obtain in so large a degree to their domestic concerns as those of the larger district, the smaller city is denied the right and power conferred on the larger, so that after all it gets back to the question of the objects of the legislation rather than the mere matter of
If city property can be taxed to purchase free gravel roads or to keep them in repair, as is held in the ease of Byram v. Board, etc. (1896), 145 Ind. 240, 33 L. R. A. 476, and this is not local or discriminative, it would be difficult to perceive how the failure to impose taxes on a city, or to empower it to impose taxes upon itself, or to enable others to impose taxes upon it for the purpose of constructing highways, can be obnoxious to the Constitution, especially when the powers of cities are derived from the legislature. The power to construct streets is a delegated one, and the State’s control over highways, both urban and rural, is exclusive, both as to laying out and improving them, except as it delegates that control. The cities have preserved to them ample powers for the purpose of constructing streets or highways, and are not denied any powers they have theretofore exercised. It cannot arise from lack of representa-, tion, because the city is not taxed in such case. Even in case of taxation for repairs of free gravel roads in the rural districts, the rule finds support in the school laws under which the inhabitants of one county generally contribute to the schools of other counties, part of the fund raised by taxation of their property.
It is not a law granting privileges or immunities to one class of persons which, upon the same terms, are not open to all citizens as prohibited by article 1, §23, of the state Constitution, or an abridgement of the privileges and immunities of citizens of the United States under §1 of the 14th amendment to the federal Constitution.
The courts have not attempted to define the words “privileges or immunities” of either Constitution. They are regarded as general, abstract, personal rights; rights which are in their nature fundamental, and pertain to all citizens in free governments, and which they
“The privileges and immunities of citizens of the United States, protected by the 14th amendment, are privileges and immunities arising out of the nature and essential character of the federal government, and granted or secured by the Constitution.” Duncan v. Missouri (1894), 152 U. S. 377, 14 Sup. Ct. 570, 38 L. Ed. 485. See, also, Slaughter House Cases (1872), 16 Wall. 36, 21 L. Ed. 394.
The provisions of article 4, §2, of the federal Constitution, that citizens of each state shall be entitled to the privileges and immunities of citizens of the several states, are held to be synonymous with the rights of the citizens. Corfield v. Coryell, supra.
This section is akin to the provision of §1 of the 14th amendment, as respects privileges and immunities, but the former is held not to make the privileges and immunities (the rights) enjojred by citizens of the several states, the measure of the privileges and immunities (the rights) to be enjoyed as of right by a citizen of another state under its constitution and laws. McKane v. Durston (1894), 153 U. S. 684, 14 Sup. Ct. 913, 38 L. Ed. 867. This rule necessarily classifies citizens in their rights, to the extent that a citizen of one state when in another state must be governed by the same rules which apply to the citizens of that state, as to matters which are of the domestic concern of the state. Cole v. Cunningham (1890), 133 U. S. 107, 10 Sup. Ct. 269, 33 L. Ed. 538; People, ex rel., v. Gallagher (1883), 93 N. Y. 438, 45 Am. Rep. 232; Butchers Union, etc., Co. v. Crescent City, etc., Co. (1884), 111 U. S. 746, 4 Sup. Ct. 652, 28 L. Ed. 585; Ex parte Kinney (1879), Fed. Cas. No. 7,825; Douglass v. Stephens (1821), 1 Del. Ch. 465. Our own Constitution does practically the same thing among its own citizens, for
The final question for determination is as to whether country roads can be paved with brick as is contemplated by this proceeding. On one hand it is contended that in interpreting §§7711, 7712 Burns 1908, Acts 1905, p. 521, §62, Acts 1907, p. 137, the language “paved” or “paving” “with stone, gravel or other road paving material,” the rule of ejusdem generis must be applied, and that “other road paving material” means material of a similar kind to stone or gravel. On the other hand, it is contended that there being no allegation that “vitrified paving brick” is not in a class with stone or gravel, the court cannot take judicial notice of such fact, if it be a fact, and that paving brick is a substitute for stone block, and that it is in a class with stone, as an artificial substitute, and recognized road paving material, and a like road paving material- with stone. The proper interpretation must be determined upon many considerations within and without the act itself.
Roads and highways are generic terms, embracing all kinds of public ways, such as county and township roads, streets, alleys, township and plank roads, turnpike or gravel roads, tramways, ferries, canals, navigable rivers, including also railroads. Southern Kan. R. Co. v. Oklahoma City (1902), 12 Okla. 82, 69 Pac. 1050; Union Pac. Railroad v. Commissioners, etc. (1876), 4 Neb. 450; Washington County v. Williams (1901), 111 Fed. 801, 49 C. C. A. 621; Mobile, etc., R. Co. v. Davis (1889), 130 Ill. 146, 22 N. E. 850; Evansville, etc., R. Co. v. City of Evansville (1860), 15 Ind. 395; Elliott, Roads and Sts. (2d ed.), §§1, 7, 19.
A street is a highway, but a highway is not necessarily a street. Tucker v. Conrad (1885), 103 Ind. 349; Common Council, etc., v. Croas (1855), 7 Ind. 9; Elliott, Roads and Sts. (2d ed), §§7, 19.
A street is a public highway in an incorporated town or city. City of Indianapolis v. Higgins (1894), 146 Ind. 1; State v. Mathis (1863), 21 Ind. 277; Conner v. President, etc. (1819), 1 Blackf. *43; Horner v. State (1878), 49 Md. 277.
In the case of Mobile, etc., R. Co. v. Davis, supra, it is held that a street is a highway, under a statute requiring signals by operatives of railroad trains at “any public highway.” In the case of Tracy v. Troy, etc., R. Co. (1868), 38 N. Y. 433, 98 Am. Dec. 54, it was held, that a statute requiring railroads to maintain cattle-guards at road crossings applied as well to streets in villages as to country highways, following the case of Brace v. New York Cent. R. Co. (1863), 27 N. Y. 269.
In the acts of 1899 (Acts 1899, p. 164), we find in amended section two a distinct recognition of roads to be improved “in the corporate limits of or extend through any city or incorporated town,” and that consent of the city or town authorities must be obtained, and that the town or city “shall take charge of that part of said road, and maintain the same.”
In the independent act of 1901 (Acts 1901, p. 449, §6899 et seq. Burns 1901) we find in section two the foregoing provision substantially retained.
It is urged that the provisions of the act of 1909 (Acts 1909, p. 353), charging the cost of the extra improvement in towns or cities to those corporations, and providing that the materials used in road construction outside of cities and towns shall be such as are usually employed in the construction of country roads, such as gravel and broken stone, in eonstraction thereof, and street paving materials shall not be used except upon streets within the limits of cities and towns, indicate the legislative intent that such should be the construction of the act prior to that time. We do not so interpret the section. It does not purport to be a construing act, but an amending one, and we interpret it as a recognition of the right of prior unrestricted use of materials, and an intent to restrict the right thereafter.
It is next urged that the rule of ejusdem generis should be applied, and that the phrase “other road paving material” should be held to refer to the prior words “stone” or “gravel,” and limit the material on country roads to stone, or gravel, or like material. The rule of ejusdem generis is not in and of itself a rule of interpretation, but an aid to interpretation when the intention is not otherwise apparent. Black, Interp. of Laws, pp. 143-145.
The rule of ejusdem generis does not apply when the prior or specific words exhaust the class, for 'there is nothing of the remaining terms to qualify; and following the rule that all parts of a statute shall, if possible, be given effect, the general words are to be given effect if that can be done, and that the rule shall not be invoked to restrict the operation of the act within narrower limits than the legislature intended. United States Cement Co. v. Cooper (1909), 172 Ind. 599; Black, Interp. of Laws, pp. 145, 146; Sutherland, Stat. Constr., §§436, 437; Endlich, Interp. of Stat., §409.
Here the words “stone” and “gravel” entirely exhaust each class, and unless the remaining words mean something else, they can mean nothing, which will not be imputed to them, if avoidable, and we place our decision in this respect upon the ground that the phrase ‘ ‘ other paving material” necessarily means something other than either stone or gravel, and that the legislature intended giving to the localities an opportunity to use such materials as were necessary or best suited to the end to be attained. The rule of ejusdem generis, that general words following a particular enumeration will not include things of a superior class, has no application where the rule would leave the general words without meaning or effect. Sutherland, Stat. Constr., §436. This construction gives effect to the whole statute, and is also in harmony with the theory of using such material as may be suited to tbe particular needs in
It will be noted that as to such improvements as can only be made when authorized by an election, there is no discretion lodged in the board of commissioners as to making the improvement, the propriety of making the improvement is left to the voters, and that is a matter that may safely be left to them. §7720 Burns 1908, Acts 1905, p. 521, §71. As to improvements three miles or less in length, the commissioners are clothed with a discretion as to whether they shall be constructed — except where there is a United States mail route on the way, or part of it — and in that discretion is necessarily involved the question of the materials. §7719 Burns 1908, Acts 1907, p. 68, §1.
Bearing in mind that public highways are the State’s highways, and that the State may improve, or cause them to be improved as it sees fit, the mandatory duty of improving ways over which there are mail routes is a matter of purely legislative concern. Lowe v. Board, etc., supra.
It cannot be doubted that the State is unrestricted, in determining what roads shall be improved, and how, by the constitutional prohibition against local or special laws in laying out or repairing highways which are mail i’outes, for the reason that the law is not local, but applies the same in every part of the State, and not only to those highways which are now, but such as may hereafter become, mail routes, and is not special; for the reason that it applies to every mail route. The classification of mail routes by themselves is a natural one. They subserve the public purpose in the facilities for communication among the people by the use of the mails, and public means of disseminating intelligence, such as market prices, reports of the weather bureau, etc., and it is a matter of common information, that the federal government requires,
The court did not err in sustaining the demurrer to the complaint, and the judgment is affirmed.
Dissenting Opinion
Dissenting Opinion.
dissent from so much of the prevailing opinion as holds that the statute in controversy is not in violation of article 4, §22, of the Constitution of this State, which forbids the passage by the legislature of a localor special law for the laying out, opening, and working on, highways,55 for the reasons stated in the dissenting opinion in the case of Smith v. Board, etc. (1910), ante, 364.
