McCoy v. City of Evansville

• Decision Date: 29 December 1958
• Docket Number: No. 29705,29705
• Citation: 239 Ind. 98,154 N.E.2d 804
• Parties: H. Basil McCOY, Lucille E. McCoy, Marvin J. Rust and Lois E. Rust, Appellants, v. The CITY OF EVANSVILLE Acting By and on Behalf of the City of Evansville Redevelopment Commission, Kenneth Kent, Clarence Simmons, Albert W. Goelzhauser, Phillip E. Drachman, Denis Stallings, as the Redevelopment Commission of the City of Evansville, Indiana, James R. Harper, as Executive Secretary of the Redevelopment Commission of the City of Evansville, Indiana, Appellees.
• Court: Indiana Supreme Court

Page 804

154 N.E.2d 804

239 Ind. 98

H. Basil McCOY, Lucille E. McCoy, Marvin J. Rust and Lois E Rust, Appellants, v. The CITY OF EVANSVILLE Acting By and on Behalf of the City of Evansville Redevelopment Commission, Kenneth Kent Clarence Simmons, Albert W. Goelzhauser, Phillip E Drachman, Denis Stallings, as the Redevelopment Commission of the City of Evansville, Indiana, James R. Harper, as Executive Secretary of the Redevelopment Commission of the City of Evansville, Indiana, Appellees.

No. 29705.

Supreme Court of Indiana.

Dec. 29, 1958.

William H. Miller, Evansville, for appellants.

John G. Bunner, Evansville,Harry T. Ice, Robert D. Risch, Ross, McCord, Ice & Miller, Indianapolis, of counsel, for appellees.

BOBBITT, Judge

Appellants brought this action seeking to enjoin appellees from proceeding under Acts 1953, ch. 176, as amended by the Acts of 1955, ch. 187, by Acts of 1957, ch. 173, being § 48-8541 et seq., Burns' 1957 Supp., to condemn appellants' property consisting of two residences and a commercial building used as a restaurant, and to issue bonds to provide funds for the operation of the Evansville Redevelopment Commission.

The complaint alleges that these Acts are unconstitutional under certain sections of the Constitution of Indiana and the Fourteenth Amendment of the Constitution of the United States.

Appellees' demurrer to the complaint was sustained and the appellants refusing to plead further, judgment was rendered against them and they appealed.

The provisions of the Acts here in question are identical to those in ch. 276 of the Acts of 1945, and ch. 170 of the Acts of 1957, being § 48-8501 et seq., Burns' 1950 Replacement.

Appellants here assert that the 1953 Act, as amended, violates Art. 1, § 21 of the Constitution of Indiana because it authorizes the property of one individual to be taken for the benefit of another; that it violates Art. 13, § 1 of the State Constitution because it is an attempt to evade the constitutional debt limitation; that it violates Art. 3, § 1, Art. 4, § 1, Art. 1, § 12, Art. 1, § 23 of the State Constitution and § 1 of the Fourteenth Amendment of the Constitution of the United States because it does not set up sufficient standards to guide the Redevelopment Commission in its action and is, therefore, an unlawful delegation of the legislative power.

All of the above questions were decided adversely to appellants herein in Alanel Corporation v. Indianapolis Redevelopment Commission, Ind.Sup., 1958, 154 N.E.2d 515, and for the reasons there stated the Acts here in question do not violate any of the constitutional provisions as asserted hereinabove.

Appellants herein further assert that the Act here in question violates the provisions of Art. 1, § 12 of the Constitution of Indiana and the Due Process Clause, of the Fourteenth Amendment because the right of appeal granted by § 15 of the Acts of 1953, as amended, which provides, 'The only ground of remonstrance which said court shall have the power or jurisdiction to hear shall be the question whether the proposed project will be of public utility and benefit, * * *.', (Acts 1957, ch. 173, § 7, p. 358, being § 48-8555, Burns' 1957 Cum.Supp.) is a constitutional limitation on the jurisdiction of the courts, relying upon Prunk v. Indpls. Redevelopment Comm., 1950, 228 Ind. 579, 93 N.E.2d 171, 174.

While that case purported to hold such provision in the Redevelopment Act of 1945 unconstitutional, the opinion closes with the following: 'We must hold, under this state of the record, that there is no constitutional issue on the merits presented here.', and the judgment of the trial court overruling the remonstrance of appeal was affirmed.

Unlike the situation in the Prunk case, the question here presented was raised by paragraph 9(c) of the complaint, and we must, therefore, assume that it was considered by the trial court.

Appellees, however, contend that the constitutionality of § 15, supra, is not presented on the record here before us because appellants elected to file this separate action in equity instead of proceeding under the provisions of the statute which they here seek to attack. This may be true, but since the trial court...