Perry Tp., Marion County v. Indianapolis Power & Light Co.

• Decision Date: 10 January 1946
• Docket Number: 28124.
• Citation: 64 N.E.2d 296,224 Ind. 59
• Court: Indiana Supreme Court
• Parties: PERRY TP., MARION COUNTY et al. v. INDIANAPOLIS POWER & LIGHT CO. et al.

64 N.E.2d 296

224 Ind. 59

PERRY TP., MARION COUNTY et al. v. INDIANAPOLIS POWER & LIGHT CO. et al.

No. 28124.

Supreme Court of Indiana

January 10, 1946

Appeal from Superior Court, Marion County; George W. Long, Sp judge.

Kivett Chambers, Vernon & Kivett, of Indianapolis, for appellants.

Joe Rand Beckett and Harvey J. Elam, both of Indianapolis, and George W. Henley, of Bloomington, for appellees.

STARR Judge.

On February 27, 1945, there was approved by the Governor an emergency bill which was adopted by the 84th General Assembly.This bill and the title thereto are in words and figures as follows:

'An Act to amend section 1 and to create and add a new section to be 2a of an act entitled 'An Act regulating the abolishment of townships, re-establishing and changing their boundary lines and repealing all laws in conflict herewith, and declaring an emergency,' approved February 13, 1943, and declaring an emergency.

(S. 64.Approved February 27, 1945.)

'Section 1.Be it enacted by the General Assembly of the State of Indiana, That section 1 of the above entitled act be amended to read as follows: Section 1.That no township or townships in any county in this state shall be abolished, or its present boundary lines in any way changed or altered unless a majority of the freeholders of the township or townships affected thereby shall sign a petition requesting the board of county commissioners to order such change or abolishment: Provided, however, That in all townships where the boundary lines of a township or townships have been changed by the board of county commissioners, subsequent to the effective date of Chapter 79 of the Acts of the 1919 General Assembly, without a petition such as described above such boundary lines are hereby restored and fixed as they existed at the time they were so changed: Provided, however, that any such township boundary lines which heretofore may have been changed by any board of county commissioners for the purpose of enabling any city or town to extend its corporate boundaries, shall not be restored under the provisions of this act: Provided, further, That no boundaries of an existing township shall be changed, and the area of no such township shall be changed in such manner as to reduce its size, if the existing township or a new township created to contain a part of the area taken from it, will have a surface area of less than twenty-four square miles, except only as authorized by section 2 of this act: Provided further, That an appeal shall lie from the action of the board of commissioners in all such cases to the circuit court and the appeal shall be heard de novo in that court upon all questions presented, as to whether a sufficient petition has been filed, whether the new boundaries conform to the boundaries of congressional townships so far as it is practicable to do so, and whether the proposed subdivision or change of boundaries of an existing township or townships will result in reducing the size of any such township or the creation of a new township from part thereof that will contain a less area than is authorized by law, in violation of this act.

'Sec. 2.That the above entitled act also be amended by adding thereto a new section to be numbered 2a to read as follows: Sec. 2a.If any section, or part thereof, or any clause, sentence, paragraph or part of this act shall for any reason be adjudged by any court of competent jurisdiction to be unconstitutional or invalid for any other reason, such judgment shall not affect, impair or invalidate the remainder of this act, or sections thereof, but shall be confined in its operation to the section, or part thereof, clause, sentence, paragraph or part thereof so adjudged to be unconstitutional or invalid for any reason.

'Sec. 3.Whereas an emergency exists for the immediate taking effect of this act, the same shall be in full force and effect from and after its passage.'Acts 1945, ch. 55, p. 123.

Thereupon, the appellants brought this action seeking a declaratory judgment against the Indianapolis Power & Light Company and the other appellees including Decatur Township of Marion County.

The complaint alleges and the stipulation filed in the case admits that prior to November 3, 1933, the property of the said Indianapolis Power & Light Company described in appellants' complaint was located in said Decatur Township; but on said date the Board of Commissioners of Marion County, without a petition signed by a majority of the freeholders of said townships requesting said Board of Commissioners of Marion County to order such change, entered an order making the boundary line between said Perry and Decatur Townships the channel of White River, which change resulted in said property of said company being placed in Perry Township, where the same has remained at all times up to the adoption of said Acts of 1945 above set out.

The complaint asks the court to specifically declare that the first proviso of section 1 of said Acts of 1945 is void; that the said second proviso of said section 1 is void; that all of said act is void; that the present channel of White River is the boundary line between appellantPerry Township and the appellee Decatur Township in Marion County; and, that the property of the appelleeIndianapolis Power & Light Company described in said complaint is located in said Perry Township and should be assessed and taxed as property in said township.All the evidence upon which the cause was submitted was stipulated.At the close of the trial the court found and adjudged that the act above set out, except said second proviso to said section 1, was in all things valid; and, that the first proviso of said section 1 of said section is applicable to the disputed boundary line between said Decatur and Perry Townships; and, they by said proviso the boundary line is fixed as it existed immediately prior to May 15, 1919, the same being the effective date of Chapter 79 of the Acts of 1919 of the General Assembly; and, that the property of the appelleeIndianapolis Power & Light Company as described in the complaint is now, and has been since the approval of said Chapter 55, Acts of 1945, in said Decatur Township, and should be assessed and taxed in said township.The court further adjudged and decreed, that it was not required to and did not pass upon the constitutionality of the second proviso of said section 1 of said act.

We will consider the questions involved in the order presented by appellants in their brief.

Their first proposition is that the first and second provisos in said section 1 relate to changing township boundaries, and is each a special law, and violates sections 22and23 of Article 4 of the Constitution of the State of Indiana.The pertinent portion of said section 22 of Article 4 is as follows:

'Local or special laws forbidden.--The General Assembly shall not pass local or special laws, in any of the following enumerated cases, that is to say: * * *

'(10)Regulating county and township business.'

Said section 23 of said Article 4 is as follows: 'Laws must be general.--In all the cases enumerated in the preceding Section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State.'

We regard the second proviso of said section 1 which reads as follows: 'Provided, however, that any such township boundary lines which heretofore may have been changed by any board of county commissioners for the purpose of enabling any city or town to extend its corporate boundaries, shall not be restored under the provisions of this act'; as meaningless and void.There can be no situation where it is necessary for the board of county commissioners of a county to change a township boundary to enable a city or town to extend its corporate boundaries.It is our opinion that this void provision is surplusage and can be disregarded without changing the intent of the Legislature or affecting the remainder of the statute, and no more will be said about the same.Ettinger v. Studevent,1942, 219 Ind. 406, 38 N.E.2d 1000.

The first proviso of said section 1 reads as follows: 'Provided, however, That in all townships where the boundary lines of a township or townships have been changed by the board of county commissioners, subsequent to the effective date of Chapter 79 of the Acts of the 1919 General Assembly, without a petition such as described above, such boundary lines are hereby restored and fixed as they existed at the time they were so changed.'

This proviso cannot be a special law and be valid, as 'the matter of changing township boundaries may properly be the subject of general laws.'Perry Civil Tp. v. Indianapolis Power & Light Co., 1943, 222 Ind. 84, 51 N.E.2d 371, 374.Is the setting apart by this proviso of all townships whose boundaries have been changed, subsequent to the effective date of Chapter 79 of the Acts of 1919 of the General Assembly, without a petition, a capricious or arbitrary classification making the law special, or is such classification 'just and reasonable and based upon substantial distinctions germane to the subject matter and to the object to be obtained'?In discussing the rules to be considered in determining whether or not the classification is proper in any particular law, we quote from Horack's Sutherland Statutory Construction, 2d Ed., § 2106:

'At best the rules of classification are only useful guides for reaching a justifiable result with the least amount of effort.The courts have insisted on classifications that are 'natural' and not artificial.But, in a sense, to say that a class is 'natural' is of itself a non sequitur.Every classification is artificial.There are degrees of...