106 Ind. 104 | Ind. | 1886
In this case the appellant, Warren, in his complaint of two paragraphs, prayed the superior court of. Vanderburgh county to perpetually enjoin the appellees, the City of Evansville and Nicholas M. Goodlett, treasurer of such city, from enforcing, or attempting to enforce, the collection of certain municipal taxes which, he claimed, had been illegally assessed by such city against his property. Appellees, separately demurred to each paragraph of appellant’s complaint, upon the ground that it did not state facts sufficient, to constitute a cause of action. These demurrers were sustained by the court, and appellant excepted, and, failing to amend or plead further, judgment was rendered by the court that he take nothing by his suit, and that appellees recover of him their costs.
Appellant has here assigned as errors the sustaining of appellees! separate demurrers to each paragraph of his complaint.
In the first paragraph of his complaint appellant alleged that he was a resident and taxpayer of the city of Evansville,, and in the year 1883, and since, owned real and personal property within the corporate limits of such city, appraised by the city assessor for the year 1883 at the value of $9,735;. that under and by virtue of section 35 of an act entitled “An
In the second paragraph of his complaint, substantially the same facts are stated 'by the appellant as in the first para-' graph, with this addition : That the city of Evansville and its common council, in disregard of the limitations laid upon them by the original section 35 of the charter of such city, levied and assessed upon appellant’s property, valued as aforesaid, an ad valorem tax of one and one-fourth per cent, for general city purposes, pretending to act under and by virtue of an act of the General Assembly of this State, pretending to amend such section 35 of the charter of such city, “ which amendatory act, plaintiff avers, is unconstitutional and void.”
The amendatory act is entitled “An act to amend the fourth, fifth, twenty-sixth, thirty-fifth, forty-third and fifty-eighth sections of an act, entitled ‘An act granting to the citizens of the town of Evansville, in the county of Vanderburgh, a city charter.’ Approved January 27th, 1847.” By its terms the original city charter took effect and was in force from and after its passage. In less than five years thereafter, to wit, on the 1st day of November, 1851, the Constitution of 1851 became, and has continued to be, the organic or fundamental law of this State.
In the fourth clause of the schedule or ordinance, which is annexed to and forms a part of the Constitution of 1851,
It is not claimed, on behalf of appellant, that the original city charter of the city of Evansville wás not continued in force, and is not now in force, under and by virtue of this fourth clause of such schedule or ordinance. On the contrary, his counsel claim, as we understand them, that the original charter just as it was enacted, or, at least, section 35 thereof, is in full force; and they rest his case upon the assumption that it was not in the power of the General Assembly to amend such act, or any section thereof, in such manner as was done or attempted to be done in the amendatory act of March 7th, 1873, by enlarging the corporate powers of the city of Evansville, or of its common council. Counsel on both sides seem to have overlooked the express reservation by the General Assembly of the right “ to amend or repeal” the original charter of the city of Evansville, set forth in section 72 of such act, as follows: “And the right is hereby reserved to the Legislature to amend or repeal this act at any and all times hereafter, saving to individuals their rights to property and choses in action acquired under it, and their rights to recover and receive debts and demands due them from the city of Evansville.” Local Laws 1847, p. 34.
Much research and learning have been exhibited by appellant’s counsel, in their argument of this cause, to show that the word “ modify,” as used in the fourth clause above quoted of such schedule or ordinance, does not confer any power or authority upon the General Assembly to amend the city charter of the city of Evansville, at least in the sense or to the extent of enlarging any of the corporate powers of such city, or of its common council. We do not find it necessary, however, under our view of the case in hand, to attempt to arrive at the exact or precise meaning of the word “modify,” as used in such fourth clause. There can be no doubt, we
This conclusion is sustained, we think, by the case of Longworth v. Common Council, etc., 32 Ind. 322, although the decision there rests upon a different line of argument from th$t we have pursued in the case at bar.
See, also, Kelly v. State, ex rel., 92 Ind. 236, and cases cited, in relation to the question of local or special legislation, as applied to this case.
■We find no error in the record.
The judgment is affirmed, with costs.