Bullock v. Robison

• Citation: 176 Ind. 198,93 N.E. 998
• Decision Date: 14 February 1911
• Docket Number: No. 21,637.,21,637.
• Parties: BULLOCK v. ROBISON, County Treasurer, et al.
• Court: Supreme Court of Indiana

176 Ind. 198

93 N.E. 998

BULLOCK

v.ROBISON, County Treasurer, et al.

No. 21,637.¹

Supreme Court of Indiana.

Feb. 14, 1911.

Appeal from Circuit Court, Marion County; Chas. Remster, Judge.

Action by Henry W. Bullock against Edward Robison, County Treasurer, and others. From a judgment for defendants on demurrer to the complaint, plaintiff appeals. Reversed, with instructions to overrule demurrer.

Henry W. Bullock, pro se. Albert Baker, Smith, Duncan, Hornbrook & Smith, for appellees.

MORRIS, J.

Bullock, appellant, filed his complaint in the Marion circuit court, against Robison, county treasurer, the board of school commissioners, and the city comptroller 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 an assessment and levy made by the proper officers pursuant to the provisions of section 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 comptroller to draw a warrant for $10,000 payable to defendant Art Association out of the school funds of the school city, and the treasurer will pay the same; that the 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 25 directors, 4 of whom were chosen by the school authorities, and the remaining 21 were 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 section 4 of the act of March 1, 1909, is void because it is in conflict with the Constitution of Indiana, and in the capacity of a resident taxpayerhe brings the suit and prays that the threatened payment of the $10,000 be perpetually enjoined. To this complaint the several defendants each filed separate demurrers for want of facts. The court sustained each demurrer, and, plaintiff declining to plead further, a judgment was rendered against him, from which he brings this appeal. The errors assigned by the appellant consist of the action of the circuit court in sustaining each of the demurrers of appellees.

Section 4 of the act of March 1, 1909, reads as follows (italics ours): “Sec. 4. That (in) any school city in this state, such as is designated in section one 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 two hundred thousand dollars 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 installments from the special fund of said school city a sum equal to one half cent on each one hundred dollars of 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 co-operate 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 one hundred dollars 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.” Acts 1909, p. 89.

The title of the act reads as follows: “An act concerning common school corporations in cities of more than one hundred thousand inhabitants.” Section 1 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 section 4 above quoted is unconstitutional and void because (1) money raised by taxation cannot be used to assist private persons or corporations, or for other than public purposes; because (2) no aid can be given parochial schools out of the public treasury; because (3) the act deprives school cities of local self-government; because (4) it conflicts with clause 13, section 22, of article 4 of our state Constitution, which prohibits local or special laws concerning the preservation of the school funds; and because (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 which prohibits the drawing from the public treasury of any money for the benefit of any religious institution (section 6, Bill of Rights), and, 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 supporting 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 other propositions involved, except the last one, which assails the validity of the section in controversy, because it is an act relating to provisions for the support of common schools, and is local and special in character, we will consider this contention.

In Campbell v. City of Indianapolis (1900) 155 Ind. 187, 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 above provision of the Constitution, because, while the act did not, when adopted, apply to any other city except Indianapolis,...