Fountain Park Company v. Hensler

• Decision Date: 25 February 1927
• Docket Number: 24,535
• Citation: 155 N.E. 465,199 Ind. 95
• Parties: Fountain Park Company v. Hensler et al. [*]
• Court: Indiana Supreme Court

155 N.E. 465

199 Ind. 95

Fountain Park Company v. Hensler et al. ^[*]

No. 24,535

Supreme Court of Indiana

February 25, 1927

1. CONSTITUTIONAL LAW.---Classification of subjects of legislation is primarily for the legislature and courts will not interfere unless such classification is manifestly unjust or unreasonable.---The question of classification of subjects on which to legislate is primarily for the legislature and does not become a judicial question unless it clearly appears that the legislative classification is not based on substantial distinctions with reference to the subject-matter or is manifestly unjust or unreasonable. p. 101.

2. CONSTITUTIONAL LAW.---Subjects to be considered in determining legality of legislative classification.---In determining the legality of a legislative classification of subjects for legislation, the subject to be regulated, the character, extent and purpose of the regulation, the classes of persons or corporations legally and naturally affected by the regulation should all be considered. p. 101.

3. CONSTITUTIONAL LAW.---Classification of subjects for legislative action must be reasonable and natural and not capricious or arbitrary.---In order to avoid conflict with the constitutional provisions in reference to the equal protection of the laws (U. S. Constitution, 14th Amendment State Constitution, Art. 1, 23), a legislative classification must be reasonable and natural and not capricious or arbitrary. Arbitrary selection or mere identification cannot be justified by calling it classification. p. 101.

4. CONSTITUTIONAL LAW.---Characteristics which may serve as basis of legislative classification.---The characteristics which can serve as a basis of a valid classification of subjects for varying legislation must be such as to show an inherent difference in the situation and subject matter of the subjects placed in different classes which peculiarly requires and necessitates different or exclusive legislation with respect to them. p. 102.

5. CONSTITUTIONAL LAW.---Proper classification defined.---A proper classification of persons as the subject of legislation must embrace all who naturally belong to that class, and there must be some natural and substantial difference germane to the subject and purposes of the legislation between those within the class included and those to whom it is not applied. p. 102.

6. CONSTITUTIONAL LAW.---Statute conferring power of eminent domain on certain Chautauqua associations hold invalid because of arbitrary classification.---Section 4903 Burns 1926 (Acts 1923 p. 172), conferring upon any Chautauqua association which has been in continuous existence for 15 years, has been giving annual programs lasting at least 16 days, and which has held a lease on timber land for fifteen years, the power of eminent domain to acquire the leased land on which it has been holding its assemblies, being intended to apply to one corporation alone, is invalid, as violating the Fourteenth Amendment to the Federal Constitution and Art. 1, 23 of the State Constitution. p 104.

7. CONSTITUTIONAL LAW.---Statute conferring power of eminent domain on certain Chautauqua associations held invalid because special legislation.---Section 4903 Burns 1926 (Acts 1923 p. 172), conferring the power of eminent domain on certain Chautauqua associations, specifically described, is in conflict with 23, Art. 4, of the state Constitution prohibiting local and special legislation and also in conflict with Art. 4, 22 requiring general laws to be of general and uniform operation. p. 106.

8. CONSTITUTIONAL LAW.---The power to construe the Constitution is a judicial power. p. 106.

9. EMINENT DOMAIN.---Source of the power of eminent domain.---The power of eminent domain does not depend for its existence upon any constitutional provision, but is an attribute of sovereignty inherent therein as a necessary and inseparable part thereof. Consequently, the constitutional provisions regarding the power of eminent domain are not grants of power, but limitations upon the use of the power which would otherwise be without limit. p. 107.

10. CONSTITUTIONAL LAW.---Constitution prohibits taking private property for private use.---The section of the Constitution which prohibits the taking of private property for public use without compensation, (Art. 1, 21, Constitution, 73 Burns 1926), by necessary implication, prohibits taking private property for private use. p. 108.

11. EMINENT DOMAIN.---Private property can only be appropriated for public use.---Although the words "public use" do not appear in the section of the Constitution relating to the power of eminent domain (Art. 1, 21 state Constitution 73 Burns 1926), private property can only be appropriated under the right of eminent domain when such appropriation is for a public use. p. 108.

12. CONSTITUTIONAL LAW.---Expediency of taking private property for public use is exclusively for the legislature.---All questions relating to the expediency of taking private property for public use are exclusively for the legislature and not for the courts, but the courts may determine whether a proposed use is public or private. p. 108.

13. EMINENT DOMAIN.---Where statute authorizes exercise of power of eminent domain for private benefit, the courts should intervene.---Whether a statute which authorizes the exercise of the power of eminent domain in a particular instance violates the constitutional provision against the taking of property for a private use is a question for the courts, and if it clearly appears that the use to which the property is to be appropriated is wholly private, the courts should intervene. p. 109.

14. EMINENT DOMAIN.---Term "public use" defined.---The term "public use" may be generally defined as a use of property that affects the public generally, or any number thereof, as distinguished from particular individuals. p 110.

15. EMINENT DOMAIN.---Characteristics of public use.---It is essential to a public use that the general public have the right to a definite and fixed use of the property appropriated, not as a mere matter of favor or by permission of the owner, but as a matter of right; and if the special benefit to be derived from the lands sought to be appropriated is wholly for private persons, the use is a private one, and is not made a public use by the fact that the public will receive an incidental benefit therefrom. p. 110.

16. CONSTITUTIONAL LAW.---Statute giving certain Chautauqua associations power of eminent domain held void because purpose was not public.---Section 4903 Burns 1926 (Acts 1923 p. 172), conferring on Chautauqua associations of a specified class the power of eminent domain to acquire land on which they have been holding their assemblies is void, for the reason that it attempts to confer that power on private corporations for purchases not constituting a "public use," contrary to Art. 1, 21, Constitution (73 Burns 1926), and not withstanding Art. 8, 1, Constitution, which makes it the duty of the legislature to encourage moral, intellectual and scientific improvement. p. 116.

From Jasper Circuit Court; George A. Williams, Judge.

Proceeding by the Fountain Park Company to appropriate certain land of Christian Hensler for a Chautauqua Assembly, to which the latter filed objections. From a judgment sustaining the objections, the plaintiff appeals.

Affirmed.

Hanley & Hanley and Fraser & Isham, for appellant.

Gaylord & Sills, for appellees.

OPINION

Martin, J.

The General Assembly on March 2, 1923, passed the following act:

"That any voluntary association organized and incorporated for the purpose of establishing, conducting and maintaining a religious chautauqua or assembly which has had a continuous legal existence for a period of not less than fifteen years, during all of which period of time such voluntary association has held, operated and conducted a religious chautauqua or assembly, giving an annual program covering a period of not less than sixteen days during each year, and has held a lease on a tract of timber land for a period of not less than fifteen years, is hereby endowed with the right of eminent domain insofar as the same may be necessary for the purpose of acquiring possession in the corporate name of such voluntary association of the tract of land on which such voluntary association holds a lease and on which the religious chautauqua or assembly operated and conducted by such voluntary association is held, not exceeding forty acres in area. Any voluntary association which by the provisions of this act is endowed with and authorized to exercise the right of eminent domain for the purposes hereinbefore prescribed, shall proceed in compliance with the provisions of an act entitled, 'An act concerning proceedings in the exercise of eminent domain,' approved February 27th, 1915." Acts 1923 p. 172, § 4903 Burns 1926.

On August 22, 1923, the appellant, a corporation organized under the general incorporation laws of this state, brought this action to take and hold, by the right of eminent domain, twenty-nine and eighty-seven hundredths (29.87) acres of land in Jasper county. The complaint sets out facts that bring appellant within each of the qualifying provisions of the law, describes the tract of wood or timber land which it holds under a lease and seeks to condemn, alleges that it cannot agree with the owner on a price and asks for the appointment of appraisers, etc., in accordance with the act providing for the procedure in eminent domain cases.

Christian Hensler, the owner, filed objections in writing setting forth grounds or reasons why the prayer of the complaint should be denied. Upon the death of Christian Hensler, appellant filed its supplemental complaint making his heirs at law and...