Borgman v. City of Fort Wayne

Decision Date31 January 1939
Docket Number27089.
Citation18 N.E.2d 762,215 Ind. 201
PartiesBORGMAN et al. v. CITY OF FORT wayne.
CourtIndiana Supreme Court

Appeal from Circuit Court, Allen County; Harry H Hilgeman, judge.

Omer S. Jackson, Atty. Gen., Urban C. Stover, Dep. Atty. Gen., and R. C. Parrish, of Fort Wayne, for appellants.

Walter Helmke, Geo. H. Leonard, and Douglass & Helmke, all of Fort Wayne, for appellee.

TREMAIN Chief Justice.

This action was filed by the City of Fort Wayne against Clifford H. Borgman, Treasurer of Allen County, and others to enjoin the taxing officers from levying and collecting a tax on the electric light and water plants owned by the city for 1934 and subsequent years. The defendants filed a demurrer to the complaint, which was overruled. They excepted to the ruling refused to plead further, and appealed to this court.

It is the position of the appellants, defendants below, that all questions presented upon this appeal were fully and completely decided by this court in the case of De Haven v. Municipal City of South Bend, 1937, 212 Ind. 194, 7 N.E.2d 184. They, therefore, insist that no new question is presented by this appeal, and that the De Haven Case is controlling.

That case holds that Section 16 of Chapter 190, Acts 1933 Burns' Ann.St.1933, § 54-610, does not violate Article 4 Section 19, of the Constitution of the State of Indiana; that said Section 16 is not invalid because it amends Section 106, Chapter 76, Acts 1913, for the reason that Section 106 is not repealed by implication by Chapter 169, Acts 1929. The De Haven decision further decides that the method of assessing the utility property for taxation is regular and valid, and that the part or proportion of the utility plants used in supplying electric power and water to the public for a consideration is not exempt from taxation. A review of the De Haven Case fully confirms the correctness of that decision, and no reason appears why there should be a review of the questions therein decided.

It is the appellee's contention that, in addition to the questions decided in the De Haven Case, the position taken by the appellants in their attempt to assess the utilities for taxation violates Article 10, Section 1, of the State Constitution, which provides that: '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 specially exempted by law.' (Our italics.)

The appellee's theory is that all property owned by the city is exempt from taxation under Chapter 59, Acts of 1919, Section 64-201, Burns' Ind.St.1933, section 15518, Baldwin's Ind.St.1934. That section does provide that 'the property of any county, city, town or township' shall be exempt from taxation. Appelle, therefore, asserts that because of this provision, all property municipally-owned is exempt from taxation regardless of its use.

The position of the appellee must fail because of its misconception of the meaning and effect of Clause (d), Section 16, Chapter 190, Acts 1933, Section 54-610, Burns' Ind.St.1933, Sec. 14027, Baldwin's Ind.St.1934. That clause provides: 'The property of any municipally-owned utility shall be subject only to such taxes as are assessed against other property for state and county purposes and such property shall be assessed for taxation in the same manner as the property of public utilities is assessed and such taxes shall be paid out of the income of such municipally-owned utility; Provided, however, That no municipally-owned utility shall be subject to such state, and county taxes payable in 1934; And provided further, That any municipally-owned and operated utility, used exclusively for the furnishing of utility service to such municipality itself, for its own municipal purposes, or any part of the valuation of any municipally-owned and operated utility which may be determined by the public service commission, to be reasonably allocated to the furnishing of service to such municipality itself for its own municipal purposes, shall not be subject hereunder to the payment of any taxes whatsoever.'

The fault with the appellee's position is that it fails to take into consideration that Section 16, Chapter 190, Acts 1933, does not violate Article 4, Section 19, of the Constitution of Indiana, and also fails in its position as to the repeal by implication of the 1913 act. De Haven v. Municipal City of South Bend, supra. It cannot be denied that the 1933 act makes the City of Fort Wayne liable for state and county taxes on its property used in a proprietary capacity.

The appellee recognizes that Article 10, Section 1, of the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT