City of Fort Wayne v. Maplewood Park Utilities, Inc.

• Decision Date: 13 November 1968
• Docket Number: No. 20324,20324
• Citation: 241 N.E.2d 805,143 Ind.App. 507
• Parties: CITY OF FORT WAYNE, Indiana, and Board of Works of City of Fort Wayne, Indiana, Appellants, Elmer H. Albersmeyer, and Spears-Dehner, Inc., Intervening Appellants, v. MAPLEWOOD PARK UTILITIES, INC., Appellee, Indiana Municipal League, Amicus Curiae.
• Court: Indiana Appellate Court

Page 805

241 N.E.2d 805

143 Ind.App. 507

CITY OF FORT WAYNE, Indiana, and Board of Works of City of Fort Wayne, Indiana, Appellants Elmer H. Albersmeyer, and Spears-Dehner, Inc., Intervening Appellants, v. MAPLEWOOD PARK UTILITIES, INC., Appellee Indiana Municipal League, Amicus Curiae.

No. 20324.

Appellate Court of Indiana, en Banc.

Nov. 13, 1968.

Rehearing Denied Dec. 20, 1968.

James Robert Arnold, Robert E. Meyers, Fort Wayne, Arthur H. Gemmer, Indianapolis, for appellants.

Baker & Daniels, Indianapolis, for intervening appellants and amicus curiae.

Robert L. Miller, South Bend, for appellee.

PER CURIAM.

This is a proceeding seeking judicial review of a final order of the Public Service Commission of Indiana, challenging, as unconstitutional, the Combined Sewage Disposal and Water Act of 1963, Acts 1963, Chapter 190 (Burns' Ind.Stat.Anno. §§ 55--4601--55--4615), under which the order was issued.

In the administrative proceedings below, appellee, Maplewood Park Utilities, Inc., applied to the Public Service Commission for a Certificate of Territorial Authority to render combined sewer and water service in an area outside the city limits of Fort Wayne. The City of Fort Wayne and its Board of Public Works, which operates the municipal sewer and water utilities, intervened below and opposed the application.

The Public Service Commission, in its order, found for appellee, Maplewood, and awarded it a certificate to render combined sewer and water service to the subject territory exclusively.

Appellants Elmer H. Albersmeyer and Spears-Dehner, Inc. were allowed to intervene as appellants because of their interest as land owners in the subject territory. The Indiana Municipal League has been permitted to file a brief as amicus curiae, also challenging the constitutionality of the Combined Act.

This appeal is brought to this court under the provisions of Burns' Ind.Stat. § 54--443, which provides for a direct appeal by way of 'judicial review' from the Public Service Commission, notwithstanding the fact that a constitutional question has been raised. By the provisions of this Act this court has exclusive jurisdiction. Indianapolis Transit System, Inc. v. Public Service Comm. (1964), 245 Ind. 314, 198 N.E.2d 380. American Vitrified Products Co. v. Public Service Comm. (1961), 241 Ind. 307, 172 N.E.2d 60.

Appellant submits numerous specifications of error for our consideration. However, as we find that the Combined Act is violative of Article 1, § 23 of the Indiana Constitution, we need not consider any other specifications.

Article 1, § 23, provides that:

'The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.'

The rules regarding legislative classification have been stated by the Indiana Supreme Court numerous times. Our task is to apply these established rules to the provisions of the callenged Act.

The controlling considerations were well stated in Heckler v. Conter (1933), 206 Ind. 376, 381, 187 N.E. 878, 879, when the court said,

'* * * the classification must not be capricious or arbitrary, but must be just and reasonable, and based upon substantial distinctions germanent to the subjectmatter and the object o be obtained. The distinctions must involve something more than mere characteristics which will serve to divide or identify the class. There must be inherent differences in situation related to the subject-matter of the legislation which require, necessitate, or make expedient different or exclusive legislation with respect to the members of the class. The classification must embrace all who possess the attributes or characteristics which are the basis of the classification, and their difference from those excluded must be substantial and related to the purpose of the legislation.'

The Combined Sewage Disposal and Water Act of 1963 does not meet the standards set forth above. The Act grants privileges and immunities to private utilities rendering combined sewage disposal and water services, which it does not grant to municipal utilities or public water companies or public sewage disposal companies:

1) Section 1 of the Act defines the word 'person' as follows:

'(e) 'Person' means any natural person, firm, association, corporation or partnership, but does not include a municipality or any other governmental body, agency or subdivision.' (Emphasis supplied) Ch. 190, Sec. 1, Acts 1963; Sec. 55--4601 Burns' Ind.Stat. (1968 Pocket Supp.)

2) Section 3 of said Act only allows a 'person (proposing) to commence the rendering of (such) combined sewage disposal and water service in any rural area' to file an application...