Ennis v. State Highway Commission, 28914

• Decision Date: 17 November 1952
• Docket Number: No. 28914,28914
• Citation: 231 Ind. 311,108 N.E.2d 687
• Parties: ENNIS v. STATE HIGHWAY COMMISSION et al.
• Court: Indiana Supreme Court

Page 687

108 N.E.2d 687

231 Ind. 311

ENNIS v. STATE HIGHWAY COMMISSION et al.

No. 28914.

Supreme Court of Indiana.

Nov. 17, 1952.

Nelson G. Grills, of Indianapolis, for appellant.

J. Emmett McManamon, Atty. Gen., Fred R. Bechdolt, Norman J. Beatty, Deputys Atty. Gen., Clyde H. Jones, Chief Counsel, Indianapolis, for appellees.

JASPER, Chief Justice.

This is an action by appellant seeking a declaratory judgment that Chapter 281 of the Acts of 1951, Acts 1951, p. 848, §§ 36-3202, 36-3222, Burns' 1949 Replacement, 1951 Supp., be declared unconstitutional, and that appellees be enjoined from carrying out the provisions of the act.

To appellant's complaint in one paragraph, appellees filed an answer under our Rule 1-3. It was found and adjudged that Chapter 281 of the Acts of 1951 is valid, and not in violation of the Constitution of the United States or the Constitution of Indiana.

Appellant assigns as error the overruling of his motion for new trial. The motion for new trial asserts only that 'The decision of the Court is contrary to law.'

Appellant says that the title to Chapter 281 of the Acts of 1951 is not broad enough to cover that part of subsection (c) of section 4 of the act, which provides:

'Any obligation or expense hereafter incurred by the state highway commission with the approval of the commission, for surveys, borings, preparation of plans and specifications, and other engineering services in connection with the construction of a project shall be regarded as a part of the cost of such project and shall be reimbursed to the state out of the proceeds of toll road revenue bonds hereinafter authorized.'

And also section 20 of the act, which provides:

'With the approval and the consent of the controlling board, the chairman of the state highway commission shall expend out of any funds available for the purpose such moneys as may be necessary for the study of any toll road project or projects and to use its engineering and other forces, including consulting engineers and traffic engineers, for the purpose of effecting such study, and all such expenses incurred by the chairman of the state highway commission prior to the issuance of toll road revenue bonds under the provisions of this act, shall be paid by the chairman and charged to the appropriate toll road project or projects, and the chairman shall keep proper records and accounts showing each amount so charged. Upon the sale of toll road revenue bonds for any project or projects, the funds so expended by the chairman with the approval of the commission in connection with such project or projects shall be reimbursed to the highway commission from the proceeds of such bonds.'

The title to Chapter 281 is as follows:

'An Act to facilitate vehicular traffic in the State of Indiana by providing for the construction, maintenance, repair and operation of projects and toll road projects; creating the Indiana toll road commission and defining its powers and duties; providing for financing the construction of such projects by the issuance of toll road revenue bonds of the state, payable solely from tolls and other revenues; and providing for the collection of tolls and other revenues to pay the cost of maintenance, repair and operation of such projects and to pay such bonds and the interest thereon, and declaring an emergency.'

Appellant argues that the two last-cited sections of the statute are in violation of Section 19, Article 4, of the Constitution of Indiana, which provides:

'Every act shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.'

In considering the constitutionality of an act in reference to its title, a very liberal interpretation will be adopted rather than a critical construction calculated to defeat it. As was stated in State v. Young, 1874, 47 Ind. 150, 152, 153:

'It may here be observed that whereever there is doubt on this subject, the doubt should be thrown in favor of the action of the co-ordinate department of the government, and the law should be sustained. But, on the other hand, when it plainly appears to the judicial mind that the matter of an enactment is neither embraced in, nor properly connected with, the subject expressed in the title, it becomes an imperative judicial duty to hold the enactment void.'

It is not necessary to express in the title matters which are germane and properly connected with the subject-matter of the act. W. A. Barber Grocery Co. v. Fleming, 1951, 229 Ind. 140, 96 N.E.2d 108; State ex rel. Taylor v. Greene Circuit Court, 1945, 223 Ind. 562, 63 N.E.2d 287. This court, in the case of Bolivar Tp., Board of Finance of Benton Co. v. Hawkins, 1934, 207 Ind. 171, 178, 191 N.E. 158, 161, 96 A.L.R. 271, said:

'As is said in the case of Board [of Com'rs of Marion County] v. Scanlan, 1912, 178 Ind. 142, 145, 95 N.E. 801, 'It is not necessary that all matters connected with, or germane to the subject of an act shall be embraced in the title. It is sufficient that the title shall 'embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.' (Const. Art. 4, § 19), and that it is of such character as fairly to apprise the legislators and the public in general of the subject-matter of the legislation, so as to lead to inquiry into the body of the bill, or indicate some particular branch of legislation as a head under which the particular provisions of the act may reasonably be looked for, and it need not set out all the matters properly connected with, or germane to the subject-matter of the act.''

In Stste, ex rel., v. Commercial Ins. Co., 1902, 158 Ind. 680, 684, 64 N.E. 466, 467, 468, this court said:

'While this court has been liberal in the past in construing § 19, of article 4, of the Constitution, nevertheless, it has frequently held that when the title of an act is so special or limited as to include one particular only of some general subject over which legislation may be had, then, and under such circumstances, the body of the act must be limited or confined to the particular or special subject expressed in the title, and to matters properly connected therewith, and the act can not deal with other particulars of such general subject.'

The sections of the statute here in question are not specifically expressed in the title to the act. Therefore we must decide whether they are germane and properly connected with the subject expressed.

Since the State Highway Commission of Indiana is charged by law with the duties generally of constructing, maintaining, and repairing state highways, it seems to us that the title to the act is sufficient to put the legislators and the public in general on notice that the commission might be involved in the enforcement of the act in such a manner as to become liable for costs incurred. Subsection (c) of Section 4, Chapter 281, of the Acts of 1951, defines the word 'cost' as applied to toll projects. Therefore any obligation or expense incurred by the State Highway Commission would be a part of the cost of the toll road and should be reimbursed to the State Highway Commission. Section 36-3220, Burns' 1949 Replacement, 1951 Supp. That portion of subsection (c) of Section 4, Chapter 281, of the Acts of 1951, does not violate Section 19, Article 4, of our Constitution.

Section 20, Chapter 281, of the Acts of 1951, provides for the reimbursement to the State Highway Commission of all funds expended 'for the study of any toll road project or projects and to use its engineering and other forces, including consulting engineers and traffic engineers, for the purpose of effecting such study, and all such expenses incurred by the chairman of the state highway commission prior to the issuance of toll road revenue bonds * * * shall be paid by the chairman and charged to the appropiate toll road project or projects * * *.' The State Highway Commission of Indiana is continually expending money for the study of its highways, and using the necessary personnel to carry on this work. It is an incident to, germane to, and properly a part of the construction of highways in this state.

As this court has said, the title to an act need not contain an index to the act.

The title to the act here in question is not so restrictive as to prevent the expenditure of funds by the State Highway Commission of Indiana for the study of any toll road project or projects and for the use of its personnel. Such study and use of personnel is a proper cost of the toll road and properly connected with the construction.

In the case of Bennett v. Spencer County Bridge Comm., 1938, 213 Ind. 520, 13 N.E.2d 547, a complaint was filed to enjoin the performance of a contract for the issuance of bonds to secure money with which to construct a toll bridge over the Ohio River, and to enjoin the board of county commissioners of Spencer County from paying any money to the bridge commission for expenses incurred in the operation and maintenance of a bridge built, in the event the tolls collected from traffic were not sufficient to pay the expenses. Among other questions raised, the title was challenged. The title, in substance, was similar to the title here questioned, except it authorized the county to build toll bridges through a bridge commission and issue bonds. That part of the statute which was criticized as not coming within the title provided:

'* * * In the event that such tolls shall, in any year while said bridge is so operated by the bridge commission, be insufficient to provide for the sinking fund requirements for the payment of the interest and principal of the bonds issued under this act, together with the cost of operating and maintaining said bridge during such year, the bridge commission...