Bullock v. Robison

• Decision Date: 14 February 1911
• Docket Number: 21,637
• Citation: 93 N.E. 998,176 Ind. 198
• Parties: Bullock v. Robison, Treasurer, et al
• Court: Indiana Supreme Court

93 N.E. 998

176 Ind. 198

Bullock v. Robison, Treasurer, et al

No. 21,637

Supreme Court of Indiana

February 14, 1911

Rehearing Denied June 23, 1911.

From Marion Circuit Court (17,892); Charles Remster, Judge.

Suit by Henry W. Bullock against Edward J. Robison, as Treasurer of Marion county, and others. From a judgment for defendants plaintiff appeals.

Reversed.

Henry W. Bullock, in pro. per., for appellant.

Albert Baker and Smith, Duncan, Hornbrook & Smith, for appellees.

OPINION

Morris, J.

Appellant filed his complaint in the Marion Circuit Court against Edward J. Robison, county treasurer, the board of school commissioners, the city controller of Indianapolis, and the art association of the same city.

The complaint alleges that the treasurer has in his hands the sum of $ 10,000, belonging to the school fund of the school city of Indianapolis, that was collected from the taxpayers of the school city by virtue of a levy and an assessment made by the proper officers, pursuant to the provisions of § 4 of an act of the General Assembly, approved March 1, 1909 (Acts 1909 p. 89); that unless enjoined, the school commissioners will authorize the city controller to draw a warrant for $ 10,000, payable to defendant art association out of said school funds, and the treasurer will pay it; that defendant art association is a private corporation, conducting, for gain, the John Herron Art Institute in the city of Indianapolis, and has a board of twenty-five directors, four of whom are chosen by the school authorities, and the remaining twenty-one are chosen by the stockholders of the association; that the association is not managed by any public authority, but is controlled entirely by its board of directors.

The complaint further alleges that said § 4 is void, because it is in conflict with the Constitution of Indiana, and, in the capacity of a resident taxpayer appellant brings suit, and prays that the threatened payment of the $ 10,000 be perpetually enjoined.

To this complaint the defendants each filed separate demurrers for want of facts. The court sustained each demurrer, and upon plaintiff's declining to plead further, a judgment was rendered against him, from which he brings this appeal. The errors assigned by appellant consist of the action of the circuit court in sustaining each of the demurrers of appellees.

Said § 4 reads as follows: "That [in] any school city in this State, such as is designated in § 1 of this act, where there is, or hereafter shall be, an art association which owns buildings, grounds, works of art and other equipment, for the study of art, located in said city, and in which more than $ 200,000 shall have been invested, and which association shall cause to be made and continued as members of its governing board of directors, trustees or other managing body, the superintendent of schools of said school city, its director of art instructions, if any there be, and two other persons to be nominated by the board of school commissioners, and which association shall give free admission, at reasonable times, to its museum and art galleries to all teachers and pupils of the public, private and parochial schools in said city, and which shall provide free illustrated lectures, on some art or kindred subject, throughout the public school year of said city not less frequently than one lecture a week for school children, the same to be given at its museum or in a public school; and which shall at half the rates established in other cities for similar service provide instruction in the teaching of drawing and design for all teachers in said city nominated by the superintendent of schools of said city, and which shall provide throughout such school year free for not fewer than fifty pupils to be nominated on competitive examination by said superintendent of schools advanced instruction in drawing and in such applied arts as it teaches, it shall be the duty of said board of school commissioners so long as such art association continues to do and perform all said things, or is able and ready and willing to do and perform them, to avail itself thereof for the benefit of the school children and teachers in said city, and to pay such art association annually in quarterly instalments from the special fund of said school city a sum equal to one-half cent on each $ 100 of the taxables of said city as valued on the tax duplicates for the year next before the date of each such payment; and said board of school commissioners may cooperate with such association in further improving or enlarging the instruction in drawing and in manual and industrial training in the public schools and, to those ends, may accept contributions of money or services or equipment from such association on such conditions as in the judgment of said board of school commissioners may benefit the public schools, provided that such cooperation and the acceptance of such contributions do not involve a total expenditure by said board from its own funds exceeding, in any one year, a sum equal to one-half cent on each $ 100 of the taxables of said city as valued on the tax duplicate made in the year 1908; but the right is hereby reserved to the State to repeal, alter or amend, at the pleasure of the legislature, this section and all the rights and powers it gives." (Our italics.)

The title of the act reads as follows: "An act concerning common school corporations in cities of more than one hundred thousand inhabitants." Section one of the act relates to acts of boards of school commissioners "in all cities of this State of more than one hundred thousand inhabitants according to the last United States census."

Appellant contends that § 4, supra, is unconstitutional and void for the following reasons: (1) Money raised by taxation cannot be used to assist private persons or corporations, or for other than public purposes; (2) no aid can be given parochial schools out of the public treasury; (3) the act deprives school cities of local self-government; (4) it conflicts with article 4, § 22, clause 13, of our state Constitution, which prohibits local or special laws concerning the preservation of the school funds; (5) it conflicts with the same clause which prohibits local and special laws providing for supporting common schools. Appellant contends that the enactment is invalid for some other reasons which we do not deem necessary to consider.

Appellees concede that public moneys cannot be appropriated to private uses, but contend that that question is not involved in the consideration of the act; that the General Assembly may provide for the payment of public moneys to private agencies engaged in work for public benefit; that the act in controversy does not seek to affect the common school fund; that the section of the act complained of does not confer aid on any parochial school, in conflict with the section of our Constitution that prohibits the drawing from the public treasury of any money for the benefit of any religious institution (§ 6 Bill of Rights); that even if it should be conceded that the act had such effect, it would be the duty of the court to eliminate from the enactment the words "private and parochial," and let the legislation stand; that the act does not interfere with the rights of cities in the matter of local self-government, because the school system of Indiana is a state system and under its control, and it may directly command its local agencies to levy taxes for particular purposes; that the act is not local nor special in reference to providing for the support of common schools, but provides for its application by a just and lawful classification.

It is evident that appellees are correct in regard to appellant's fourth contention, because the legislation in question does not seek to affect the common school fund. Assuming, without deciding, that appellees are correct on all the propositions involved except the last one, that assails the validity of the section in controversy, because such act relates to provisions for the support of common schools, and is local and special in character, we shall consider this contention.

In the case of Campbell v. City of Indianapolis (1900), 155 Ind. 186, 57 N.E. 920, it was held that an act relating to the issuance of bonds by school corporations in cities having a population of 100,000, "according to the last United States census," did not conflict with the provision of the Constitution before cited, because, while the act did not, when adopted, apply to any other city than Indianapolis, it would, in the future, apply to all cities of the state that should thereafter attain the requisite population. But in the same case, it was held that an act in relation to the same subject-matter, applying to cities of a certain population, as shown by the census of 1870, was invalid, because it was special and local. It would appear, therefore, that if the application of the act in question had been made to depend alone on population, it would not be invalid under the doctrine announced in that case.

But it will be noticed that there are many other restrictions besides population that limit the application of the statute to a corporation having the requisite population, and it is, therefore, proper to consider the general principles governing the proper classification of corporations of this character.

The...