Mann v. City of Terre Haute, 29864

• Citation: 163 N.E.2d 577,240 Ind. 245
• Decision Date: 12 January 1960
• Docket Number: No. 29864,29864
• Parties: Hansford C. MANN, Appellant, v. CITY OF TERRE HAUTE, Indiana; Raymond F. Thomas, as Controller of the City of Terre Haute, Indiana; Raymond F. Thomas, Albert Ellis and Frank P. Crawford, as the Board of Public Works and Safety of the City of Terre Haute, Indiana, Appellees.
• Court: Supreme Court of Indiana

Page 577

163 N.E.2d 577

240 Ind. 245

Hansford C. MANN, Appellant, v. CITY OF TERRE HAUTE, Indiana; Raymond F. Thomas, as Controller of the City of Terre Haute, Indiana; Raymond F Thomas, Albert Ellis and Frank P. Crawford, as the Board of Public Works and Safety of the City of Terre Haute, Indiana Appellees.

No. 29864.

Supreme Court of Indiana.

Jan. 12, 1960.

Berry, Kincade & Allen, Terre Haute, for appellant.

Frank P. Crawford, Terre Haute, for appellees.

ARTERBURN, Chief Justice.

This appeal was transferred from the Appellate Court to this Court under the provisions of Acts 1901, ch. 247, § 13, p. 565, being § 4-217, Burns' 1946 Replacement.

This is an action brought to enjoin the issuance of revenue bonds by the City of Terre Haute for the purpose of building a sewage treatment and disposal plant. The Stream Pollution Control Board of the State of Indiana, under the Acts of 1943, ch. 214, §§ 1-18 (Burns' Indiana Statutes Annotated 1933, 1951 Replacement, §§ 68-517 et seq.) made a final order on December 14, 1945, finding that the Wabash River was polluted by sewage from the City of Terre Haute and entered a cease and desist order against such pollution of public waters. The City of Terre Haute, pursuant to such orders, proceeded to raise the money for the construction of a sewage disposal plant by the issuance of the revenue bonds in question. It is conceded in oral argument by the appellant that since no appeal was taken from the order of the Stream Pollution Control Board of the State of Indiana within the time provided by the statute upon the question of stream pollution, that order is final and binding upon the parties and the City of Terre Haute on that issue. However, appellant claims the Act in question creating the Stream Pollution Control Board of the State of Indiana is unconstitutional in that its enforcement by the Board deprives the appellant of any opportunity to question or remonstrate against the plan of financing the construction and operation of a sewage disposal plant. We have examined this statute and find no provision therein which gives the taxpayers and property owners interested in such project any statutory proceeding for a review as to the reasonableness or desirability of the proposed public works. State ex rel. City of Marion v. Grant Circuit Court, Ind.1959, 157 N.W.2d 188.

The administrative adjudication and Court Review Act of 1947 (Burns' §§ 63-3001 to 63-3030) is not applicable in this case, since it post dates the order here involved of 1945. City of Plymouth v. Stream Pollution Control Board, 1958, 238 Ind. 439, 151 N.E.2d 626.

We first point out that the financial proposal involved here is not to be accomplished by a general obligation bond issue, which might or might not be in excess of the constitutional limitations, and where the law places upon the State Board of Tax Commissioners the duty to review such matters. Acts 1943, ch. 214, § 12, p. 624, being § 68-528, Burns' 1951 Replacement.

It is well settled that revenue bonds, as proposed in this case, do not constitute a direct obligation of a municipality, and consequently, constitutional or statutory debt limitation features have no application. Foltz v. City of Indianapolis et al., 1955, 234 Ind. 656, 106 N.E.2d 650; Martin v. Ben Davis Conservancy District, 1958, 238 Ind. 502, 153 N.W.2d 125; Edwards v. Housing Authority of City of Muncie, 1939, 215 Ind. 330, 19 N.W.2d 741; Department of Public Sanitation of City of Hammond v. Solan, 1951, 229 Ind. 228, 97 N.E.2d 495; Book v. Board of Flood Control Commissioners, Ind.1959, 156 N.E.2d 87.

We have held that where the legislature has failed to provide for a statutory remedy of appeal sufficiently broad, the courts nevertheless will grant such a judicial review, since each litigant is entitled to an appeal. State ex rel. City of Marion v. Grant Circuit Court, Ind.1959, 157 N.E.2d 188; Warren v. Indiana Telephone Co., 1940, 217 Ind. 93, 26 N.E.2d 399.

This does not mean that the courts will review the administrative action of any board, commission or governmental corporation for the purpose of substituting its opinion or judgment for that of the board in discretionary matters within the jurisdiction of such an administrative body. The courts will, however, review the proceedings to determine whether procedural requirements have been followed and if there is any substantial evidence to support the finding and order of such a board. The courts will also review the proceedings to determine whether or not the order of the board, its judgment or finding, is fraudulent, unreasonable or arbitrary, if requested. City of Plymouth v. Stream Pollution Control Board, 1958, 238 Ind. 439, 151 N.E.2d 626; Public Service Commission et al. v. City of Indianapolis, 1956, 235 Ind. 70, 131 N.E.2d 308; Public Service Commission of Indiana et al. v. Indiana Telephone Corp., 1957, 237 Ind. 352, 146 N.E.2d 248; State ex rel. Public Service Commission v. Boone Circuit Court, etc., 1956, 236 Ind. 202, 138 N.E.2d 4, 139 N.E.2d 552.

This may be done by a proceeding in equity asking for an injunction against the alleged erroneous action of the board, commission or governmental corporation. The appellant has done that in this case in its complaint against the city. In addition to raising the constitutional questions the complaint, by specific allegation, has raised the issue of unreasonableness and arbitrary action of the city by paragraphs 12 to 12h, both inclusive, which stated among other similar specific allegations that the 'improvement is not required by the public needs'...