Book v. Board of Flood Control Com'rs, City of Indianapolis

• Decision Date: 03 February 1959
• Docket Number: No. 29717,29717
• Citation: 239 Ind. 160,156 N.E.2d 87
• Parties: William H. BOOK, Apellant, v. BOARD OF FLOOD CONTROL COMMISSIONERS CITY OF INDIANAPOLIS, Indiana, and Darrell C. Walton, President, Ross D. Hawes, Vice-President,Hazel B. Miller, as Members of Board of Flood Control Commissioners, City of Indianapolis, Charles H. Boswell, as Controller, City of Indianapolis, Phillip L. Bayt, as Mayor, City of Indianapolis, Appellees.
• Court: Indiana Supreme Court

Page 87

156 N.E.2d 87

239 Ind. 160

William H. BOOK, Apellant, v. BOARD OF FLOOD CONTROL COMMISSIONERS CITY OF INDIANAPOLIS,

Indiana, and Darrell C. Walton, President, Ross D. Hawes,

Vice-President,Hazel B. Miller, as Members of Board of Flood

Control Commissioners, City of Indianapolis,

Charles H. Boswell, as Controller, City of Indianapolis,

Phillip L. Bayt, as Mayor, City of Indianapolis, Appellees.

No. 29717.

Supreme Court of Indiana.

Feb. 3, 1959.

Walter Myers, Jr., Myers, Northam & Myers, Indianapolis, for appellant.

Michael B. Reddington, John J. Dillon, M. Walter Bell, Indianapolis, for Flood Control District, City of Indianapolis.

Robert D. McCord, Harry T. Ice, David N. Brewer, Robert D. Risch, Robert D. McCord, Jr., Indianapolis, amicus curiae, Ross, McCord, Ice & Miller, Indianapolis, of counsel.

ARTERBURN, Judge.

This is a suit for an injunction by the appellant, a citizen and taxpayer of Marion County, on behalf of himself and all other persons similarly situated against the Board of Flood Control Commissioners of the Flood Control District of the City of Indianapolis and other interested parties named as appellees herein. The appellant sought to enjoin the appellees from proceeding with certain flood control projects proposed by the Board of Flood Control Commissioners on the 21st day of February, 1958, to prevent them from taking any action in issuing and offering for sale bonds in the amount of five million dollars to provide for the payment of the project and to enjoin the assessment and levy of any special tax of the Flood Control District for the payment of the bonds.

The appellees are proposing to undertake this flood control project pursuant to the provisions of Chapter 43 of the Acts of the General Assembly for the year 1937, as supplemented and amended (Burns' Indiana Statutes, § 48-4727 et seq.), and in particular pursuant to the purported powers granted to the Board of Flood Control Commissioners, as set forth in Section 4 of that chapter. Burns' Indiana Statutes, § 48-4730, subd. 4.

It is appellant's contention that the chapter and act referred to is unconstitutional and void in that

'(a) It authorizes the issuance and sale of bonds in the name of the City of Indianapolis; that these bonds are actually an indebtedness of the City of Indianapolis as a municipal corporation and according to the facts brought forth at the trial would create an indebtedness of that City in excess of 2% of the assessed valuation of taxable property within the limits of said City, which is prohibited by Article XIII of the Constitution of the State of Indiana.

'(b) It violates Article I, Section 23 of the Constitution of the State of Indiana and the Fourteenth Amendment to the United States Constitution in that it has granted certain citizens privileges which do not belong equally to all citizens, and it takes from certain citizens and taxpayers their property without due process of law.

'(c) The title to the Act violates Article IV, Section 19 of the Constitution of the State of Indiana in that there are certain subjects embraced in the Act which are not expressed in the title.

'(d) It violates Article XI, Section 12 of the Constitution of the State of Indiana in that the credit of the State is attempted to be given in aid of persons, associations and corporations which is prohibited by said section.'

No contention is made as to the manner, method or procedure by which these issues are raised and presented to this court. We take them up in the order named.

Stipulations of the parties state that the five million dollar issue of bonds, if added to the total outstanding indebtedness of the City of Indianapolis, would bring the total bonded indebtedness of that corporation above the 2% constitutional limitation.

The Act under consideration (Acts 1937, ch. 43, p. 258, being §§ 48-4727 et seq., Burns' 1950 Repl.) in general provides that in cities of the first class there shall be a 'Board of Flood Control Commissioners' consisting of three members, two of whom are appointed by the mayor, and the third shall be the city civil engineer. The district over which the board has control is fixed by the statute as the territorial limits of the county within which the City of Indianapolis is located and includes all incorporated towns within Marion County. The Board is given power of eminent domain and is empowered to maintain, operate and construct flood control systems and in connection therewith to construct and maintain levees, reservoirs, drains, ditches, and bridges, with the further power to alter, relocate and remove any such natural or artificial structures.

The board is given rather broad powers along with that of cooperating with any department or agency of the United States government or the State of Indiana in carrying out programs for the protection of life and property from floods and water hazards. For the purpose of maintenance, all property within the territorial limits of the district 'shall be subject to a special tax for the purpose of providing funds to pay the total costs' of such work. Burns' § 48-4735. For the purpose of maintenance and repair a tax not exceeding one cent [1cents] on each one hundred dollars [$100] of taxable property is authorized. Burns' § 48-4741. The Act further provides for the issuance of bonds which are to be amortized over a period of years out of a special tax levied on all property within the territorial limits of the district. Burns' § 48-4738 provides that it shall be unlawful for the board to issue any bonds 'when the total issue for that purpose, including the bonds already issued and to be issued, is in excess of one per cent of the total assessed valuation (after deducting all mortgage exemptions) of the property within said flood control district, * * *' The Act further provides with reference to bonded indebtedness: 'Said bonds shall not, in any respect, be a corporate obligation or indebtedness of said city, but shall be and constitute an indebtedness of said flood control district, as a special taxing district, and said bonds and interest thereon shall be payable only out of a special tax levied upon all the property of said flood control district as in this act provided; * * *'

We shall discuss the questions raised as to the constitutionality of this Act in the order stated above.

The appellant first contends that the legislature has unconstitutionally attempted to evade the debt limit of the City of Indianapolis by creating a fictitious political and municipal corporation to take over part of the functions of the City of Indianapolis.

Art. XIII, Sec. 1, Constitution of the State of Indiana.

We have recently considered and decided this same question to the contrary in the case of Martin v. Ben Davis Conservancy District, Ind.1958, 153 N.E.2d 125, and also to some extent in Book v. State Office Bldg. Comm., Ind.1958, 149 N.E.2d 273, and we need not therefore elaborate to any great extent upon this point.

This project is one of local public improvement and appears to us to come clearly under the principles laid down not only in the above cases, but also in the case of Department of Public Sanitation v. Solan, 1951, 229 Ind. 228, 97 N.E.2d 495.

Flood prevention and control through ditches, levees and drainage systems has long been recognized as a matter of local improvement. Shelbyville & Brandywine Turnpike Company et al. v. Green, 1884, 99 Ind. 205; Lewis Tp. Improv. Co. v. Royer, 1906, 38 Ind.App. 151, 76 N.E. 1068; Cities and Towns Act 1905, Chap. 129, p. 219; Acts 1915, Chap. 74, p. 143; Acts 1929, Chap. 129, p. 434; Acts 1933, Chap. 26, p. 120.

In Martin v. Ben Davis Conservancy District, Ind.1958, 153 N.E.2d 125, we stated (at page 135 of 153 N.E.2d):

'The legislature has the power to directly create, fix and define public improvement districts for drainage, roads and other like improvements.'

Gilson et al. v. Board of Commissioners of Rush County, 1891, 128 Ind. 65, 27 N.E. 235, 11 L.R.A. 835; Board of Commissioners v. Falk, 1943, 221 Ind. 376, 47 N.E.2d 320, 145 A.L.R. 1190; Archer, Jr., etc., et al. v. City of Indianapolis, et al., 1954, 233 Ind. 640, 122 N.E.2d 607 (Sanitary District); Department of Public Sanitation v. Solan, 1951, 229 Ind. 228, 97 N.E.2d 495 (Sanitary District); Johnson v. Board of Park Commissioners, 1930, 202 Ind. 282, 174 N.E. 91 (Park District); Board of Com'rs of Monroe County v. Harrell et al., 1897, 147 Ind. 500, 46 N.E. 124 (Gravel Road District).

The rationale of the above cases is that improvements of a local rather than a political or governmental character may be financed and the costs thereof paid by a special tax or assessment limited to the area benefited.

The cases of Rappaport v. Dept. of Public Health, 1949, 227 Ind. 508, 87 N.E.2d 77, 88 N.E.2d 150 and Cerajewski v. McVey, 1947, 225 Ind. 67, 72 N.E.2d 650, 171 A.L.R. 723 are constantly urged upon us on questions of this sort as supporting the contrary view. Suffice it to say here they dealt with the governmental functions of maintaining hospitals and schools and could hardly be considered within the category commonly referred to as local improvements. What was said with reference to these cases in the case of Martin v. Ben Davis Conservancy District, supra, holds true in this case.

The case of Marion B. & E. Traction Co. v. Simmons, 1913, 180 Ind. 289, 291, 102 N.E. 132 cited by the appellants is not to be considered as any authority that flood control is not a local public improvement. It merely holds that construction of levees, drains and sewers and 'to remove excess water from lands by means of drains, and to guard against the spread of disease by the construction of proper sanitary systems' is a proper function of a city. The recognition that a city may make a local public improvement does not prevent its being performed by another corporation or governmental agency created by the legislature.

'There is no...