Mitsch v. City of Hammond, 29173

• Decision Date: 27 April 1955
• Docket Number: No. 29173,29173
• Citation: 234 Ind. 285,125 N.E.2d 21
• Parties: Frank MITSCH and Arnold Gilbertson, Appellants, v. CITY OF HAMMOND, Lake County, Indiana; Vernon C. Anderson, as Mayor of the City of Hammond, Lake County, indiana; John F. Beckman, Corporation and/or City Attorney of the City of Hammond, Lake County, Indiana; and Edward B. Bellamy, City Clerk of the City of Hammond, Lake County, Indiana, and as ex officio Clerk of the City court of the City of Hammond, Lake County, Indiana, Appellees. . March ,8, 1955. Rehearing Denied
• Court: Indiana Supreme Court

Page 21

125 N.E.2d 21

234 Ind. 285

Frank MITSCH and Arnold Gilbertson, Appellants, v. CITY OF HAMMOND, Lake County, Indiana; Vernon C. Anderson as Mayor of the City of Hammond, Lake County, indiana; John F. Beckman, Corporation and/or City Attorney of the City of Hammond, Lake County, Indiana; and Edward B. Bellamy, City Clerk of the City of Hammond, Lake County, Indiana, and as ex officio Clerk of the City court of the City of Hammond Lake County, Indiana, Appellees.

No. 29173.

Supreme Court of Indiana.

March ,8, 1955.

Rehearing Denied April 27, 1955.

Straley Thorpe, Hammond, Cope Hanley, Rensselaer, for appellants.

Palmer C. Singleton, Jr., Hammond, City Atty. and Atty. for appellees (Mayor Vernon C. Anderson and John F. Beckman, Jr., Hammond, of counsel).

Thomas Dumas, Rensselaer, James J. Richards, Hammond, for Edward B. Bellamy, City Clerk of City of Hammond.

PER CURIAM.

Appellants filed their complaint against appellees in two paragraphs. By change of venue the cause was sent to the Jasper Circuit Court. Appellees' (except Edward B. Bellamy, Clerk of Hammond) demurrer to the second paragraph of the complaint, which was treated as a demurrer to each paragraph, was sustained. Appellants declined to plead further, and a judgment was rendered against them from which this appeal is taken.

The demurrer admits the truth of all matters well pleaded in the complaint.

This makes it necessary that we state the substance of the well-pleaded material averments of the complaint. Since the complaint is long we shall abridge this statement.

Appellants, plaintiffs, aver that they are resident taxpayers of Lake County, Indiana, and as such they support the public schools of the county, one residing in Hanover Township and the other in the City of Hammond.

That the defendant Vernon Anderson is Mayor, the defendant John F. Beckman is city attorney, and the defendant, Edward B. Bellamy is city clerk of the city of Hammond. That the action is brought against each in his representative capacity.

That on April 25, 1949, the City of Hammond by its common council and Mayor promulgated its purported ordinance No. 2820, a copy of which is attached to the complaint, and made a part thereof as Exhibit A. That since said date the Mayor and city attorney have directed the enforcement of the purported ordinance through the city police department and city court, against great numbers of persons by way of complaints, who were alleged to have violated such purported ordiance, resulting in judgments, and by this device they have collected vast sums of money which they have caused to be appropriated to the use of the City of Hammond.

It is then averred that the purported ordinance is composed of many articles, sections and subsections, which are copies of or cover and describe the same subject matter now and at all times set out, covered and described by the criminal and penal statutes of the State of Indiana. The complaint then enumerates 129 of such articles, sections and subsections.

It is averred that all the articles, sections and subsections of the purported ordinance as described and enumerated are void, and that all judgments procured by the city based upon the void ordinance, are likewise void as to the city: That under the constitution and laws of Indiana all fines and penalties assessed for breach of the penal laws of the State belong to and are a part of the 'Common School Fund' of the State. That by the procedure mentioned, the city authorities have usurped the authority of the State and its officials and thereby have diverted from the common school fund large sums of money and wrongfully appropriated the same to the use of the city, the exact amount being unknown to plaintiffs.

That before bringing the action, demand was made upon all proper authorities, including the prosecuting attorney, the attorney general, the auditor of State and treasurer of State to take action against the defendants to enjoin them from enforcing the alleged void ordinance and to procure an accounting for the monies diverted from the common school fund, but all such officers failed to comply with such demand.

Prayer for an accounting for all monies diverted from the common school funds of the State; and an injunction prohibiting defendants and each of them from further enforcement of the alleged void ordinance and all other proper relief.

The demurrer raised two questions. 1st. The complaint does not allege facts showing an injury to plaintiffs or their property. 2nd. (a) Each of the several articles, sections and subsections of the involved ordinance is valid and agreeable with the laws of the State and not in conflict therewith. (b) The diminution of the common school fund, occasioned by the reduction of the amount of fines and forfeitures accruing to the common school fund does not injure plaintiffs, because the distribution would be made to Lake County and is only of the interest earned by the principal of the fund. We shall discuss these two propositions in the order stated.

1. We have heretofore held that: Where no property rights are involved a court of equity lacks jurisdiction to enjoin enforcement of a penal licensing ordinance. City of Gary v. Gary Warehouse Co., 1944, 223 Ind. 82, 57 N.E.2d 767, 156 A.L.R. 315; Lickey v. City of South Bend, 1934, 206 Ind. 636, 190 N.E. 858.

However, the cases supporting this proposition indicate that there may be rights, other than property rights, that may be protected by injunction, and suggest that an ordinance that constitutes a threat to business or civil rights might take the case out of the general rule stated. See Annotation, #9, 175 A.L.R. p. 455. In this annotation, grave doubt is expressed that there was ever any substantial basis in the common law or elsewhere for the general rule noted. ¹

We know of no law prohibiting a taxpayer from bringing an action in equity to prevent the waste or misappropriation public funds. On the contrary it has been the rule in Indiana for many years that a taxpayer has such an interest in the public funds as will enable him to maintain a suit in equity to prevent unlawful waste or appropriations thereof. Harney v. Indianapolis, etc., R. Co., 1869, 32 Ind. 244, 247; Zuelly v. Casper, 1903, 160 Ind. 455, 458, 67 N.E. 103, 63 L.R.A. 133; State ex rel. Stuart v. Holt, 1904, 163 Ind. 198, 71 N.E. 653, and authorities there cited Miller v. Jackson Tp., 178 Ind. 503, 99 N.E. 102; Davis Construction Co. v. Board of Com'rs of Boone County, 1921, 192 Ind. 144, 147, 132 N.E. 629, 21 A.L.R. 557; Englehart's Estate v. Larimer, 1936, 211 Ind. 218, 223, 5 N.E.2d 304; Eder v. Kreiter, 1907, 40 Ind.App. 542, 545, 82 N.E. 552; City of Michigan City v. Marwick, 1917, 67 Ind.App. 294, 300, 116 N.E. 434, 119 N.E. 154.

Agreeable with the many authorities cited we think the plaintiffs as resident taxpayers of the county and state, were proper parties plaintiff to test the validity of the involved ordinance.

Sec. 2, Art. 8 of the constitution of Indiana provides the source from which the common school fund is derived. The fifth source is:

'From the fines assessed from breaches of the penal laws of the State; and from all forfeitures which may accrue; * * *.'

The common school fund is a public fund of the state in which every taxpayer of the state has a supreme interest as is indicated by the following constitutional provisions.

Sec. 3, Art. 8 of the Indiana Constitution provides:

'The principal of the Common School fund shall remain a perpetual fund, which may be increased, but shall never be diminished; and the income thereof shall be inviolably appropriated to the support of the Common Schools, and to no other purpose whatever.'

Secs. 4 and 5, Art. 8 of the State Constitution, provide for the distribution of the common school fund among the counties of the state and for its safe investment; and Sec. 6 provides:

'The several counties shall be held liable for the preservation of so much of the said fund...