Haven v. Mun. City of South Bend , No. 26700.

• Docket Nº: No. 26700.
• Citation: 7 N.E.2d 184, 212 Ind. 194
• Case Date: March 31, 1937
• Court: Supreme Court of Indiana

212 Ind. 194
7 N.E.2d 184

DE HAVEN et al.
v.
MUNICIPAL CITY OF SOUTH BEND.

No. 26700.

Supreme Court of Indiana.

March 31, 1937.

Action by the City of South Bend against John F. DeHaven, etc., and others. From an adverse judgment, defendants appeal.

Judgment reversed, with instructions.

[7 N.E.2d 185]

Appeal from Superior Court, St. Joseph County; J. Elmer Peak, judge.
Philip Lutz, Jr., Atty. Gen., Urban C. Stover, Dep. Atty. Gen., and J. Clifford Potts, of South Bend, for appellants.

Edw. Hunter and Harry Taylor, both of South Bend, for appellee.

ROLL, Judge.

This action was instituted by the city of South Bend against appellants to enjoin the collection of the tax assessed against a portion of the city owned waterworks. The complaint challenged the constitutionality of section 16, c. 190, Acts 1933, as being violative of article 4, § 19, of the Constitution. The complaint further questioned the legality of the tax on the ground that section 16, c. 190, Acts 1933, under which the tax was levied, attempts to amend section 106, c. 76, Acts 1913, and that said section 106, supra, was repealed by implication by chapter 169 of the Acts of 1929 and therefore section 16 of c. 190, Acts 1933, p. 928, was invalid. The complaint further challenged the method adopted in assessing the property by the State Board of Tax Commissioners, and claim is also made that the property attempted to be taxed is exempt from taxation.

Appellants contend that there was no lawful exemption of the property assessed; that it was legally assessed; and that the statute in question is valid.

The legal question above stated arises upon appellants' demurrer to the complaint, which the trial court overruled; on the agreed statement of the facts, and on the overruling of appellants' motion of a new trial.

The first question presented for our determination is whether chapter 169, Acts 1929, repealed by implication section 106, c. 76, Acts 1913, commonly known as the Shively-Spencer Act. The title to said act reads as follows: ‘An Act concerning public utilities, creating a public service commission, abolishing the railroad commission of Indiana, and conferring the powers of the railroad commission on the public service commission.’

Section 78 of said act provides in substance that any public utility and any person or corporation in interest being dissatisfied with any order of the commission fixing any rate or rates, tolls, charges, schedules, joint rate or rates, or any order fixing any regulations, practices, act, or service, may commence an action in the circuit or superior court of any county in which such order of the commission is operative, against the commission as defendant to vacate or set aside any such order or enjoin the enforcement thereof, and then enumerate the ground upon which any such action could be sustained, and also provides the time limit within which the commission shall answer the complaint. Section 79 provides that such suits shall be commenced within sixty days after the entry or rendition of the order complained of, and provides that in case a rehearing has been petitioned for and granted, the right of recourse to the courts shall terminate thirty days after the final determination by the commission. Section 104 provides the method by which a municipality might acquire a utility by condemnation proceedings. Section 105 provides the method of determining the amount of compensation to be paid for the taking of such public utility. This determination is fixed by the commission after a public hearing, and provides notice to bondholders, mortgagees, lienors, and all persons claiming or having any interest in such public utility. Section 106 provides as follows: ‘Any public utility or the municipality or any bondholder, mortgagee, lienor or other creditor of the public utility being dissatisfied with such order, may commence and prosecute an action in the circuit or superior court and thereafter may appeal to the supreme court to vacate or set aside such order or any part thereof, as provided in sections 78 to 86 inclusive, and said sections, so far as applicable shall apply to such action. In all such appeals to the circuit or superior court, the question of compensation shall be tried and fixed by the court without a jury.’

This is the section appellees contend was repealed by chapter 169, Acts 1929, p. 530. The title to said act and section 1 thereof are as follows: ‘An Act concerning review of decisions, rulings, orders, determinations, requirements or directions of the public service commission, repealing

[7 N.E.2d 186]

all laws or parts of laws in conflict therewith, and declaring an emergency.’

Section 1: ‘That any person, firm, association, corporation, city, town or public utility adversely affected by any decision, ruling, order, determination, requirement or direction of the public service commission may commence an action in the circuit or superior court of any county in which that portion of the utility which is the subject matter of the procedure before the public service commission operates or seeks to operate, against the commission to vacate or set aside or enjoin the enforcement of any such decision, ruling, order, determination, requirement or direction, on the ground that the same is insufficient, unreasonable, unlawful, or procured by fraud or other unlawful methods.’

It is clear from a reading of the 1929 act and also section 106 of the 1913 act, that the 1929 act does not repeal the 1913 act by express terms. But appellee contends that it is repealed by implication. The general rules as to repeal by implication are: (1)...