Heckler v. Conter, 26383.

• Citation: 206 Ind. 376,187 N.E. 878
• Decision Date: 15 December 1933
• Docket Number: No. 26383.,26383.
• Parties: HECKLER v. CONTER, Treasurer, et al.
• Court: Supreme Court of Indiana

206 Ind. 376

187 N.E. 878

HECKLER

v.CONTER, Treasurer, et al.

No. 26383.

Supreme Court of Indiana.

Dec. 15, 1933.

Appeal from Jasper Circuit Court; Moses Leopold, Judge.

Action by Henry Heckler against Herman L. Conter as treasurer, and others. From an adverse judgment, plaintiff appeals.

Reversed, with instructions.

Bomberger, Peters & Morthland, of Hammond, for appellant.

Philip Lutz, Jr., of Indianapolis, Edward Barce, of Fowler, Joseph W. Hutchinson, of Indianapolis, and George E. Hershman, of Crown Point, for appellees.

FANSLER, Judge.

Appellant brought this action seeking a judgment declaring chapter 31, p. 153, of the Acts of 1933, unconstitutional. A demurrer to the complaint was sustained, and, upon refusal to plead further, there was a judgment against appellant, from which this appeal is prosecuted.

The only error assigned is upon the ruling on the demurrer, and the only questions presented involve the constitutionality of the act.

The statute provides that in all second and fourth class cities (Hammond, Gary, Whiting, and East Chicago) located in a county having a population of not less than 250,000 nor more than 400,000 (Lake), the office of city treasurer is abolished, and all of “the right, powers and duties of such city treasurer” are conferred upon and shall be performed by the county treasurer; and that an office for the collection and disbursement of taxes and assessments in each city shall be furnished by the city, and the county treasurer shall assume and perform all of “the rights, powers and duties of the city treasurer”; that the county treasurer shall appoint a deputy “to collect, disburse and distribute the taxes and assessments in each such city and such assistants as shall be necessary”; that one of the deputies shall receive a salary not exceeding $2,400, and three a salary not exceeding $4,200, per annum.

Appellant challenges the law as being local and special, and that it therefore offends section 23 of article 4 of the Constitution, and that it affects county business, and offends against section 22 of article 4, that it deprives the people of the four affected cities of the right of local self-government, and that it violates section 6 of article 6 of the Constitution, which requires all town (and city) officers to reside within their respective municipalities, and that obviously the county treasurer cannot reside within all four of the cities.

Section 22 of article 4 of the Constitution of Indiana provides that the General Assembly shall not pass local or special laws upon any of the seventeen subjects enumerated therein.

Section 23 provides that: “In all cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the state.”

The statute in question does not regulate county business, and is not within the subjects covered by section 22.

It is contended by appellees that the question as to whether a general law can be made applicable in a given case is for the Legislature, and that the legislative determination of that question is not subject to review by this court. They rely upon the case of Gentile v. State, 29 Ind. 409, and authorities which follow that opinion. But we cannot approve of the reasoning in those cases. In the Gentile Case it is conceded that the object of section 23 was “not to confer any power on the legislature, but to restrain that body in the exercise of an inherent power of sovereignty, which, in the absence of such a restriction, it would possess.” But, if the Legislature may arbitrarily decide that a general law cannot be made applicable, and its decision is final and cannot be questioned, it is not restrained or restricted in any sense, and the constitutional provision is, if not a nullity, at least a mere admonition. Following the language above quoted, the opinion continues:

“But the restriction is not specific as to the particular cases to which it applies, and hence it requires the exercise of legislative judgment in determining the question of its application in each case as it may arise. It is nevertheless a restriction, binding upon the conscience of every member of the body, the application of which must be judged of and determined as cases are presented, under the oath (which all the members are required to take before entering upon their duties) to support the constitution of the state, and it cannot be presumed that the members of that body would willfully disregard either the restriction or their obligations to support it, in the enactment of laws.”

The same reasoning would apply to all provisions of the Constitution, limiting the power of the Legislature, and could be as readily invoked when the subject of the legislation comes within one of the seventeen enumerated cases under section 22. To illustrate: One of the cases concerning which the Legislature may not pass local or special laws under section 22 is “regulating county and township business.” The members of the General Assembly are bound by oath and conscience not to disregard this restriction, and yet this court has always said, and it is said in the Gentile Case, that, if the legislation is local or special and affects county business, as this court interprets that term, it will be held unconstitutional, notwithstanding the Legislature, bound by conscience and under oath, passed the measure and may have believed that it did not concern county business in the sense in which that term was used in section 22.

In construing such legislation, the rule that every reasonable presumption must be indulged in favor of its constitutionality will...