Cummins v. Pence
| Decision Date | 08 April 1910 |
| Docket Number | No. 21,472.,21,472. |
| Citation | 174 Ind. 115,91 N.E. 529 |
| Parties | CUMMINS v. PENCE et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wells County; C. E. Sturgis, Judge.
Petition by George O. Pence and others, for the improvement of a public highway, in which Robert F. Cummins filed an affidavit of interest, and appealed to the circuit court, where he filed an answer of general denial and a special answer. From a judgment ordering the work, Robert F. Cummins appeals. Affirmed.Simmons & Daily, for appellant. Eichhorn & Vaughn, for appellees.
This was a proceeding under the gravel road law of 1905 (Acts 1905, c. 167, § 62 et seq.), as amended in 1907, for the improvement of public highways by taxation. Burns' Ann. St. 1908, § 7711 et seq. A petition was filed by appellees, and notice 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 they did to the point of ordering the work of improvement. Appellant filed an affidavit of interest, under section 6021, Burns' Ann. St. 1908, 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. The cause was tried, special findings of fact made, and conclusions of law 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, first, upon the ground that the highway act of 1905 is unconstitutional as being in violation of article 1, § 23, of the state Constitution, as being a grant of privileges and immunities to one class of citizens which is denied to others similarly situated, and in violation of article 4, § 22, of the Constitution as being a local law.
It is insisted that section 7712, Burns' Ann. St. 1908, is in violation of the Constitution as being class legislation, in that it only applies to townships in which are cities or incorporated towns having 30,000 or less population. These questions have been resolved otherwise in Smith v. Board (1910) 90 N. E. 881;Harmon v. Gephart (1910) 90 N. E. 890; State ex rel. Strange v. Board (1910, No. 21,446 at this term) 91 N. E. 242. It is next urged that amended section 7719, Burns' Ann. St. 1908, is in violation of the Constitution because (a) discrimination is made in favor of roads less than three miles in length; (b) in favor of roads having certain termini; (c) 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 and conditions of their improvement, unlimited except by the Constitution, and that the act applies throughout the state to all roads similarly conditioned. State ex rel. v. Board, supra; Johnson v. Board (1909) 89 N. E. 590;State v. Barrett (1909) 87 N. E. 7;State ex rel. v. Board (1908) 170 Ind. 595, 85 N. E. 513.
Hence the conditions for improvement are purely legislative questions, and 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, supra; Johnson v. Board, supra; State v. Barrett, supra; Lowe v. Board (1901) 156 Ind. 163, 59 N. E. 466;Spencer v. Merchant, 125 U. S. 345, 8 Sup. 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 reasons 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 urged that the improvement of rural routes is not a township matter, and it does not lie within the providence 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 ways it will improve, and the conditions under which it will improve. State v. Board (1908) 170 Ind. 595, 85 N. E. 513;Gilson v. Board (1891) 128 Ind. 65, 27 N. E. 235, 11 L. R. A. 835.
We have lately had occasion, in Harmon v. Gephart, supra, and Strange v. Board, supra, to note the grounds of proper classification as to mail routes, and the inherent reasons supporting such classification. In any of the conditions authorizing such improvements there is as much reason for them 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 this has never been intimated as in violation of the Constitution. So far is this a matter of purely legislative concern that boards of commissioners in one county may construct gravel roads on county lines, and the adjoining township is required to contribute ratably, upon the ground that it is a state matter, which is by statute committed to boards of commissioners as the state's instrumentality. State ex rel. v. Board (1908) 170 Ind. 595, 85 N. E. 513.
It is next urged that the law is discriminative in that it requires cities and towns under 30,000 population 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 (1901) 156 Ind. 163, 59 N. E. 466. Control over streets is not taken from the municipalities; the improvement can only be made with their assent (section 7721, Burns' Ann. St. 1908), which necessarily involves control as to its character, and they are entitled to share of the repair fund (section 7759, Burns' Ann. St. 1908); and, as pointed out in Strange v. Board, supra, the working operation of the statute is probably as equitable as in any plan of taxation. The extent to which the state's authority runs is well disclosed in State v. Board, supra, and in Byram v. Board (1896) 145 Ind. 240, 44 N. E. 357, 33 L. R. A. 476, where it is held in the latter that the property of cities may be taxed to repair rural highways, and for the same reasons it may he taxed to construct them as the legislative determination of the taxing district.
Neither is the act in violation of section 1, art. 10, of the state Constitution (section 193, Burns' Ann. St. 1908), 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, No. 21,442, at this term) 91 N. E. 167; Johnson v. Board, supra; State v. Smith, 158 Ind. 543, 63 N. E. 25, 214, 64 N. E. 18, 63 L. R. A. 116;Cleveland, etc., Co. v. Backus, 133 Ind. 513, 33 N. E. 421, 18 L. R. A. 729; Cooley on Taxation (3d Ed.) 5, 169.
Objection is made to the validity of section 7712, Burns' Ann. St. 1908, 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 at 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; State ex rel. Strange v. Board, 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 there cited; State ex rel. v. Board (1908) 170 Ind. 595, 609, 85 N. E. 513;Travelers' Ins. Co. v. Connecticut (1902) 185 U. S. 364, 22 Sup. Ct. 673, 46 L. Ed. 949;Jennings v. Coal Ridge Co., 147 U. S. 147, 13 Sup. Ct. 282, 37 L. Ed. 116;Bell's Gap Co. v. Penna., 134 U. S. 232, 10 Sup. Ct. 533, 33 L. Ed. 892;Kentucky R. R. Tax Cases, 115 U. S. 321, 6 Sup. 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, and the question of public utility is merged in the existing way, by virtue of its existence, and the question of improving the way involves no question of public utility.
No question of the eminent domain is involved in the case, because no property is sought to be taken, nor any question of appropriating lands.
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, 194 U. S. 497, 24 Sup. Ct. 789, 48 L. Ed. 1092;Reetz v. Michigan, 188 U. S. 505, 23 Sup. Ct. 390, 47 L. Ed. 563;Simon v. Craft, 182 U. S. 427, 21 Sup. Ct. 836, 45 L. Ed. 1165;Cleveland, etc., Co. v. Backus, 133 Ind. 513, 33 N. E. 421, 18 L. R. A. 729; S. C. Pittsburgh, etc., Co. v. Backus, 154 U. S. 421, 14 Sup. 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 utility, which does not...
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