Lurie v. City of Indianapolis

• Decision Date: 26 May 1964
• Docket Number: No. 30488,30488
• Citation: 198 N.E.2d 755,245 Ind. 457
• Parties: Betti K. LURIE, for herself and on behalf of all others similarly situated, Appellant, v. CITY OF INDIANAPOLIS, Board of Park Commissioners of the City of Indianapolis, Auditor of Marion County, Appellees.
• Court: Indiana Supreme Court

Page 755

198 N.E.2d 755

245 Ind. 457

Betti K. LURIE, for herself and on behalf of all others similarly situated, Appellant, v. CITY OF INDIANAPOLIS, Board of Park Commissioners of the City of Indianapolis, Auditor of Marion County, Appellees.

No. 30488.

Supreme Court of Indiana.

May 26, 1964.

Clyde L. Peterson, Douglas J. Hill, Cadick, Burns, Duck & Neighbours, Indianapolis, of counsel, for appellant.

Michael B. Reddington, Corp. Counsel, John J. Dillon, City Atty., John P. Korbly, Atty. for Bd. of Park Commissioners, Indianapolis, for appellees.

Harry T. Ice, David N. Brewer, Robert D. Risch, Robert D. McCord, Ice, Miller, Donadio & Ryan, Indianapolis, of counsel, for amicus curiae.

LANDIS, Justice.

Appellant brought this action to enjoin appellees from levying any tax on appellant's property or issuing bonds of the Indianapolis Park District as extended or taking any other action which would facilitate the levy of such a tax or the issuance of such bonds, purportedly authorized by certain sections of ch. 144 of the Acts of 1919, as amended by ch. 279 of the Acts of 1961, ¹ and ch. 396 and ch. 397 of the Acts of 1963. ²

The issues were formed by appellant's complaint contending the above statutes were unconstitutional and appellees' answers contending to the contrary. The lower court found for appellees and entered judgment in their favor from which determination appellant appeals to this Court.

Appellant's first contention on this appeal is that she is denied equal privileges guaranteed to her by Art. 1, § 23 of the Indiana Constitution ³ and the fourteenth (14th) amendment of the U. S. Constitution ⁴ by ch. 279 of the Acts of 1961, which purports to authorize the common council of the city of Indianapolis to levy taxes on appellant's property located outside the city of Indianapolis.

The above statutes purport to expand the area of operations of the park districts in cities of the first class from the territory within the city of Indianapolis to all the territory within Marion County. The purpose is conceded to be to provide for a county-wide park system, in light of the obvious expansion of metropolitan Indianapolis beyond the boundaries of the city.

Appellant contends, however, those portions of the Act are unconstitutional which purport to authorize the common council of the city of Indianapolis to levy texas on appellant's property located outside the city.

Burns' § 48-5504, 1963 Repl., (Acts 1919, ch. 144, § 4, p. 639; 1933, ch. 110, § 1, p. 698; 1961, ch. 279, § 3, p. 641, supra), in this respect provides as follows:

'All the territory included within the corporate limits of any such city of the first class and on and after January 1, 1963, all area in the county in which such city is located to the extent provided by section 1A [§ 48-5501a] of this act shall constitute a taxing district for the purpose of levying special benefit taxes for park purposes as provided in this act [§ 48-5501--48--5531]. The term 'park purposes' as used in this act shall be considered and held to cover and include parks, boulevards, pleasure drives, parkways, wheelways, park boulevards, bridlepaths, playgrounds, playfields, bathhouses, comfort stations, swimming pools, community centers, recreation centers and the establishment, the equipment and operation thereof. Except for park districts in cities of the second class that have adopted this act but have not elected to extend its boundaries pursuant to section 1A [§ 48-5501a], references in this act to park district or to or concerning territory within a city of the first class shall be construed on and after January 1, 1963, to refer to all area within the park district as its boundaries are extended beyond the corporate limits of the city by section 1A [§ 48-5501a] of this act unless the context otherwise requires, * * *.' (Emphasis added.)

The foregoing statute thus merely extended the boundaries of the Indianapolis Park District. The power to levy taxes was continued in the common council, acting as an administrative agency.

Appellant has also attacked the constitutionality of Burns' § 48-5528a, 1963 Repl., (Acts 1919, ch. 144, § 25A as added by Acts 1961, ch. 279, § 7, p. 641, Acts 1963, ch. 397, § 3, p. 1101, supra), authorizing the city council upon request of the board of park commissioners, to adopt an ordinance establishing tablishing a cumulative building and sinking fund and to levy annual taxes for such purposes, viz.:

'The board of park commissioners of any such city, in order to raise money for any of the purposes for which bonds may be issued pursuant to section 25 [§ 48-5525] of this act, is authorized to request the common council of such city to adopt an ordinance establishing a cumulative building and sinking fund in the manner hereinafter provided. * * * After approval by the state board of tax commissioners, the common council of the city shall levy annually thereafter, for a period of twelve years, the amount of tax set forth in the ordinance and approved by the state board of tax commissioners, but in no event exceeding ten cents [10cents] on each one hundred dollars [$100] of taxable personal and real property within the park district: Provided, That if the common council deems it advisable to do so, it may cause such annual levy at any time thereafter to be reduced by adoption of an ordinance; or ten or moer taxpayers in any such park district who will be affected by such tax, may file with the county auditor of the county in which such park district is located, not later than August 1 of any year, a petition for reduction of said levy setting forth their objections thereto. * * *' (Emphasis added.)

Appellant also refers to Burns' § 48-5508, 1963 Repl., (Acts 1919, ch. 144, § 8, p. 639; 1920 (Spec.Sess.), ch. 32, § 1, p. 105), giving the city council authority to pass an ordinance authorizing the sale of park lands, the proceeds of which may be used by the board of park commissioners as it may deem for the best interests of the city of Indianapolis, viz.:

'If such a board of park commissioners in any city of the first class should wish to sell any part of the park lands now owned by such city or that may hereafter be acquired, it is hereby authorized to prepare an ordinance authorizing such sale and submit the same to the city council. If the council shall pass such ordiance, such lands shall be sold as other lands of the city are sold, and the proceeds of such sale shall be credited to the department of public parks and expended in the improvement of the remaining park lands or in the purchase of other lands for park purposes, as such board may deem for the best interests of the city. * * *'

It is appellant's argument that extending the taxing power of the Indianapolis city council to include property such as that of appellant beyond the corporate limits of such city in Marion County, is taxation without representation; that appellant has no voice, direct or indirect, in choosing the members of such council who are elected solely by the voters of said city, and that appellant would not receive equal protection of the laws with the residents of the city of Indianapolis.

Appellant relies to a considerable extent upon the out of state decisions in: Town of Oneida v. Hardwood Flooring Co. (1935), 169 Tenn. 449, 88 S.W.2d 998; State ex rel. Hinson v. Nickerson (1916), 99 Neb. 517, 156 N.W. 1039; and Klich, Jux. v. Miami Land & Development Co. (1939), 139 Fla. 794, 191 So. 41, and statements appearing in 64 C.J.S. Municipal Corporations § 2003, p. 695; 38 Am.Jur., Municipal Corporations, § 392, p. 81. However, these authorities do not appear applicable to the case at bar as they relate to situations where the attempt to levy on property outside the taxing unit was caused by a change in boundaries, disannexation, or a void annexation.

On the other hand, in support of appellees' position, it is pointed out that a statute similar to that involved in this case was passed by the legislature in 1917 which provided for the creation of sanitary districts and authorized the levy of taxes by a city council or board where the land outside the city was benefitted by the taxes levied. This Court in State Board, etc. v. State, ex rel. (1926), 198 Ind. 343, 153 N.E. 404, 153 N.E. 576, in considering such statute, recognized the duty of the state board of tax commissioners to perform its duties with reference to the taxes levied by the Indianapolis city council on property located (outside the city) in the town of Woodruff Place, for the operation of the Indianapolis sanitary district. Such taxes under the present law upheld in Archer, Jr., etc., et al. v. City of Indpls., etc., et al. (1954), 233 Ind. 640, 122 N.E.2d 607, are now levied on property outside the city in areas annexed to the district by the board of sanitary commissioners, the board being appointed by the mayor of the city of Indianapolis. In City of Indianapolis v. Bryan (1919), 188 Ind. 586, 125 N.E. 38, we also upheld the constitutionality of an act providing for levying by the board of park commissioners of the city of Indianapolis of assessments outside the city for benefits to such property, such board having been then appointed by the mayor of the city of Indianapolis.

We believe it should be further pointed out that this Court in the early case of Conwell v. The President and Trustees of Connersville (1856), 8 Ind. 358, held an act not to be unconstitutional which provided that all persons residing within two hundred (200) yards of the corporation line should be taken as residents within the limits of the corporation for purposes of taxation. See also: Visalia Savings Bank v. Visalia (1908), 153 Cal. 206, 94 P. 888; Wible v. City of Bakersfield (1919), 42 Cal.App. 77, 183 P. 291; Ratigan v. Davis (1963), 175 Neb. 416, 122 N.E.2d 12.

In regard to appellant's argument of taxation without representation, we have heretofore held that the levying of local taxes...