Kersey v. City of Terre Haute
| Decision Date | 24 November 1903 |
| Docket Number | 20,097 |
| Parties | Kersey et al. v. City of Terre Haute |
| Court | Indiana Supreme Court |
From Superior Court of Vigo County; O. B. Harris, Special Judge.
Suit by William P. Kersey and others against the city of Terre Haute. From a judgment for defendant, plaintiffs appeal.
Affirmed.
J. S Jordon, B. K. Elliott, W. F. Elliott and F. L. Littleton, for appellants.
P. M Foley and S.D. Royse, for appellee.
--Appellants, seven in number, commenced this action to enjoin the enforcement of a vehicle tax ordinance. In their several paragraphs of complaint they claim to sue not only for themselves but for all others similarly situated. A demurrer was sustained to each paragraph of said complaint, and appellants prosecute their appeal from the final judgment which followed.
The facts averred are so far similar to the facts alleged in City of Terre Haute v. Kersey, 159 Ind. 300, 64 N.E. 469, as to suggest the query whether this is not in effect an attempt to obtain a rehearing of that case. However, as the questions here involved have at their root the consideration as to whether the ordinance invidiously discriminates against the property of appellants and those on whose behalf they claim to sue, and as the complaint in its several paragraphs appears to have been drafted with a purpose of manifesting the inequalities in the operation of the ordinance, we shall pass on the questions presented for our consideration.
The opinion in the case of City of Terre Haute v. Kersey, supra, contains a very full statement of the averments of fact found in the complaint therein involved, and as all of the averments are, in substance, found in the complaint we are about to consider, we refer to such opinion as containing a statement of the averments of fact which are common to the two cases. Building upon said common facts, the complaint herein is constructed with a view to manifest particular local conditions which it is claimed make the ordinance invidious in its operation. Disregarding the particular forms of the averments, it may be said that the complaint assails the ordinance because it is so framed that the following vehicles are not taxed: street cars; vehicles, similar to those of appellants, belonging to many nonresidents who habitually use the streets of the city; and automobiles. It is further objected that bicycles, which, it is alleged, are noninjurious to the streets, are taxed at the same rate as certain vehicles having steel tires.
It is claimed by counsel for appellants that the ordinance violates § 23 of article 1, and § 22 of article 4 of the state Constitution, and that it amounts to a denial of the equal protection of the laws within the prohibition of the fourteenth amendment to the federal Constitution.
We think that we may consider the first and third objections as involving what are, to a large extent, kindred questions. No doubt exists as to the power of cities to pass proper ordinances for the taxation of vehicles using the streets. The ordinance may therefore be said to represent the judgment of the municipal legislature that such ordinance contains a proper classification of the subjects of taxation, and while such ordinance may be void on constitutional grounds, or as a palpably improper exercise of a granted power, yet due consideration must be given to the fact that we have before us a scheme of municipal taxation, and that in the exercise of the authority granted there must be classification, in order that the burden of raising a special fund for the repair of the streets may rest in due proportion upon those who ought to bear such burden. It is to be recollected that we do not have before us a question as to the proper construction of § 1 of article 10 of the state Constitution, for that section relates to the assessment of taxes on property according to its value. City of Terre Haute v. Kersey, supra. See, also, Bank of the State v. City of New Albany, 11 Ind. 139; Hamilton v. City of Ft. Wayne, 40 Ind. 491. For this reason the power to tax, so far as constitutional objections are concerned, would seem to be in this instance untrammeled, except that invidious discrimination will not be countenanced. As applied to a case arising as does the one before us, it may be said: Cooley, Taxation (3d ed.), 254. "A just and perfect system of taxation," as was said by Chancellor Kent, "is yet a desideratum in civil government." It was stated by Sharswood, J., in Grim v. Weissenberg School Dist., 57 Pa. 433, 98 Am. Dec. 237, that "perfectly equal taxation will remain an unattainable good as long as laws and government and men are imperfect." The power to tax is essentially legislative in its character, and it is not required, under the constitutional provisions we are now considering, that there should be such an exact exclusion and inclusion of the subjects of taxation as to meet fully the approval of the judicial mind as to what is reasonable. DePauw v. City of New Albany, 22 Ind. 204; State Board, etc., v. Holliday, 150 Ind. 216, 42 L. R. A. 826, 49 N.E. 14; McCulloch v. State of Maryland, 4 Wheat. 316, 4 L.Ed. 579; Providence Bank v. Billings, 4 Pet. 514, 7 L.Ed. 939; Delaware Railroad, 18 Wall. 206, 21 L.Ed. 888; Rees v. City of Watertown, 19 Wall. 107, 22 L.Ed. 72; Heine v. Levee Commissioners, 19 Wall. 655, 22 L.Ed. 223; State Railroad Tax Cases, 92 U.S. 575, 23 L.Ed. 663; Thomas v. Gay, 169 U.S. 264, 18 S.Ct. 340, 42 L.Ed. 740; People, ex rel., v. Mayor, etc., 4 N.Y. 419, 55 Am. Dec. 266; Maltby v. Reading, etc., R. Co., 52 Pa. 140; In the Matter of Dorrance Street, 4 R.I. 230; Plumer v. Board, etc., 46 Wis. 163, 50 N.W. 416; McHenry v. Downer, 116 Cal. 20, 47 P. 779, 45 L. R. A. 737. It is only palpable abuses of the power that the courts assume to overthrow. Magoun v. Illinois Trust & Sav. Bank, 170 U.S. 283, 18 S.Ct. 594, 42 L.Ed. 1037; Veazie Bank v. Fenno, 8 Wall. 533, 19 L.Ed. 482; Meriwether v. Garrett, 102 U.S. 472, 26 L.Ed. 197; Bridge Proprietors v. State, 21 N.J.L. 384; Crafts v. Ray, 22 R.I. 179, 46 A. 1043, 49 L. R. A. 604; Sears v. Cottrell, 5 Mich. 251; Robertson v. Commissioner, etc., 44 Mich. 274, 6 N.W. 659; Pence v. City of Frankfort, 101 Ky. 534, 41 S.W. 1011; Cooley, Taxation (3d ed.), 47, 77.
It has been declared by the Supreme Court of the United States that the fourteenth amendment was not intended to compel the state to adopt an iron rule of equal taxation (Giozza v. Tiernan, 148 U.S. 657, 13 S.Ct. 721, 37 L.Ed. 599, 37 L.Ed. 599, 13 S.Ct. 721), and also that that amendment was not intended "to subvert the systems of the states pertaining to general and special taxation." Cass Farm Co. v. Detroit, 181 U.S. 396, 21 S.Ct. 644, 45 L.Ed. 914.
We do not mean to assert that cases might not arise of such palpable abuse in the exercise of the power of taxation as to call on the court to apply either or both of the constitutional provisions now under consideration. We are not concerned, however, with the ascertainment of the last outpost in which the discretion of the municipal council can intrench itself. The question is whether the particular...
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