Cummins v. Pence

Decision Date08 April 1910
Docket Number21,472
Citation91 N.E. 529,174 Ind. 115
PartiesCummins v. Pence et al
CourtIndiana Supreme Court

From Wells Circuit Court; Charles E. Sturgis, Judge.

Highway proceeding by George O. Pence and others, against which Robert F. Cummins remonstrates. From a judgment for petitioners, remonstrant appeals.


Simmons & Dailey, for appellant.

Eichhorn & Vaughn, for appellees.


Myers, J.

This was a proceeding under the gravel road law of 1905 (Acts 1905 p. 521) as amended in 1907, for the improvement of public highways by taxation.

A petition was filed by appellees, and notice thereof given of the time and place set for hearing. The board of commissioners dismissed the proceeding, and appellees appealed to the circuit court, where the matter was heard and remanded to the board of commissioners to proceed under the petition, which it did, to the point of ordering the improvement.

Appellant filed an affidavit of interest under § 6021 Burns 1908 § 5772 R. S. 1881, and appealed to the Wells Circuit Court. There he filed an answer of general denial, and a special answer setting up numerous grounds of alleged unconstitutionality of the highway act of 1905 supra. The cause was tried, special findings of fact made, and conclusions of law were stated, upon which judgment was rendered, ordering the construction of the road, and taxing the costs to appellant, from which judgment he appeals, assigning error upon the conclusions of law.

He seeks a reversal of the judgment on the ground that the highway act of 1905, supra, is unconstitutional, as being in violation of article 1, § 23, of the state Constitution, forbidding a grant of privileges and immunities to one class of citizens which is denied to others similarly situated, and as in violation of article 4, § 22, of the Constitution, forbidding the enactment of a local law in certain cases. It is insisted that § 7712 Burns 1908, Acts 1907 p. 137, is in violation of the Constitution, as being class legislation, in that it applies to townships only in which are cities or incorporated towns having a population of 30,000 or less. These questions have been resolved otherwise in the cases of Smith v. Board, etc. (1910), 173 Ind. 364, 90 N.E. 881, Harmon v. Gephart (1910), 173 Ind. 391, 90 N.E. 890, and Strange v. Board, etc. (1910), 173 Ind. 640, 91 N.E. 242.

It is next urged that § 7719 Burns 1908, Acts 1907 p. 68, § 1, is in violation of the Constitution, because discrimination is made (1) in favor of roads less than three miles in length, (2) in favor of roads having certain termini, and (3) between those touched and those untouched by a rural mail-route. As to all these propositions, it is to be said that all public highways being state highways, the State is the sole arbiter of the manner of their improvement, unlimited except by the Constitution, and that the act applies throughout the State to all roads similarly conditioned. Strange v. Board, etc., supra; Board, etc., v. Johnson (1909), 173 Ind. 76, 89 N.E. 590; State v. Barrett (1909), 172 Ind. 169, 87 N.E. 7; State, ex rel., v. Board, etc. (1908), 170 Ind. 595, 85 N.E. 513.

The conditions for improvement present purely legislative questions. Since it is determined that the classification is not inimical to the Constitution, it follows that the conditions which are imposed are not the concern of the courts. State, ex rel., v. Board, etc., supra; Board etc., v. Johnson, supra; State v. Barrett, supra; Lowe v. Board, etc. (1901), 156 Ind. 163, 59 N.E. 466; Spencer v. Merchant (1888), 125 U.S. 345, 8 S.Ct. 921, 31 L.Ed. 763.

No presentation of the question of classification is here made which was not made and considered in the late cases decided by this court, and we see no reason to depart from the conclusions there reached. In this case, it is shown by the petition and findings that the entire length of the way is covered by a post-route, and it is urged that the improvement of rural routes is not a township matter, and it does not lie within the province of the legislature to place a tax upon townships to construct or repair post-roads. We concede that the improvement of post-roads is not a township matter, but it is a state matter, and the State is the exclusive judge, within constitutional lines, of the highways it will improve, and the conditions under which they will be improved. State, ex rel., v. Board, etc., supra; Gilson v. Board, etc. (1891), 128 Ind. 65, 11 L.R.A. 835, 27 N.E. 235.

We have lately had occasion, in the cases of Harmon v. Gephart, supra, and Strange v. Board, etc., supra, to note the grounds of proper classification as to mail routes, and the inherent reasons supporting such classification. There is as much reason in the conditions authorizing such improvements as there is in requiring a definite number of freeholders to sign a petition for opening or vacating an ordinary highway, and another definite number in opening a highway on a county line; and yet these requirements have never been intimated to be in violation of the Constitution. So far is this a matter of purely legislative concern, that a board of commissioners in one county may construct gravel roads on county lines, and the adjoining township may be required to contribute ratably, on the ground that it is a state matter, which is by statute committed to boards of commissioners, an instrumentality of the State. State, ex rel., v. Board, etc., supra.

It is next urged that the law is discriminative, in that it requires cities and towns having a population of less than 30,000 to be assessed for country highways, and does not provide for the building or improvement of streets. It was held under a similar statute, before the present statute was adopted, that the act did authorize the improvement of streets. Lowe v. Board, etc., supra.

Control over streets is not taken from the municipalities. The improvement can be made only with their assent (§ 7721 Burns 1908, Acts 1905 p. 521, § 72), which necessarily involves control as to the character of the improvement, and they are entitled to a share of the repair fund. § 7759 Burns 1908, Acts 1907 p. 613, § 2. As was pointed out in the case of Strange v. Board, etc., supra, the working operation of the statute is probably as equitable as in any plan of taxation.

The extent to which the authority of the State runs is well disclosed in the cases of State, ex rel., v. Board, etc., supra, and Byram v. Board, etc. (1896), 145 Ind. 240, 33 L.R.A. 476, 44 N.E. 357. It is held in the case last cited that the property of cities may be taxed to repair rural highways, and for the same reasons it may be taxed to construct them.

The act is not in violation of article 10, § 1, of the state Constitution, in providing that the rate of assessment and taxation shall be uniform. That clause is held to apply to uniformity and equality in the taxing district, or as to those of the same class. Smith v. Stephens (1910), 173 Ind. 564, 91 N.E. 167; Board, etc., v. Johnson, supra; State, ex rel., v. Smith (1902), 158 Ind. 543, 63 L.R.A. 116, 63 N.E. 25; Cleveland, etc., R. Co. v. Backus (1893), 133 Ind. 513, 18 L.R.A. 729, 33 N.E. 421; 1 Cooley, Taxation (3d ed.) 5, 169.

Objection is made that § 7712, supra, is invalid on the ground that it discriminates between freeholders and the owners of personal property. The basis for this distinction is pointed out in Harmon v. Gephart, supra.

There is no invasion of the right of due process of law, or to the right of hearing. The property owner is given a right to a hearing when his property is assessed for taxation. Harmon v. Gephart, supra; Strange v. Board, etc., supra.

The due process of law clause of the federal Constitution has no reference to the taxing process of the states, to which this class of proceedings belongs, so long as there is an opportunity to be heard at some stage of the proceeding, and so long as discriminations are not made against particular persons or classes. Smith v. Stephens, supra, and cases cited; State, ex rel., v. Board, etc., supra; Travellers' Ins. Co. v. Connecticut (1902), 185 U.S. 364, 22 S.Ct. 673, 46 L.Ed. 949; Jennings v. Coal Ridge, etc., Co. (1893), 147 U.S. 147, 13 S.Ct. 282, 37 L.Ed. 116; Bell's Gap R. Co. v. Pennsylvania (1890), 134 U.S. 232, 10 S.Ct. 533, 33 L.Ed. 892; Kentucky Railroad Tax Cases (1885), 115 U.S. 321, 6 S.Ct. 57, 29 L.Ed. 414.

It is contended that due process of law is denied for lack of provision for hearing upon the question of public utility. The question is not involved in this appeal, for the reason that the improvement contemplated is wholly over an existing highway, the question of the public utility thereof having been determined when such highway was established. The question of improving the way involves no question of public utility.

No question of the law of eminent domain is involved in the case, because no property is sought to be taken; nor is any question of appropriating lands involved.

Provision is made for a hearing, upon the question of damages, by the viewers, and for exception to the award, and a review, and that is sufficient. It is not essential that the right to a hearing by an organized court be given. Public Clearing House v. Coyne (1904), 194 U.S. 497, 24 S.Ct. 789, 48 L.Ed. 1092; Reetz v. Michigan (1903), 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563; Simon v. Craft (1901), 182 U.S. 427, 21 S.Ct. 836, 45 L.Ed. 1165; Cleveland, etc., R. Co. v. Backus (1893), 133 Ind. 513, 18 L.R.A. 729, 33 N.E. 421; Pittsburgh, etc., R. Co. v. Backus (1894), 154 U.S. 421, 14 S.Ct. 1114, 38 L.Ed. 1031.

Appellant however, only interposes as a taxpayer, and has no standing here to raise the question of the constitutionality of a statute upon the question of public...

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