Rosencranz v. City of Evansville

• Decision Date: 24 April 1924
• Docket Number: 24,441
• Citation: 143 N.E. 593,194 Ind. 499
• Parties: Rosencranz v. City of Evansville et al
• Court: Indiana Supreme Court

143 N.E. 593

194 Ind. 499

Rosencranz v. City of Evansville et al

No. 24,441

Supreme Court of Indiana

April 24, 1924

From Vanderburgh Probate Court; Elmer Q. Lockyear, Judge.

Action by Richard Rosencranz against the city of Evansville and others. From a judgment for defendants, the plaintiff appeals.

Reversed.

O. W McGinnis and Richard Waller, for appellant.

John R Brill, James T. Walker, Henry B. Walker and Forrest M Condit, for appellees.

OPINION

Travis, J.

This is an action to test the validity of chapter 26, Acts 1923 p. 82, authorizing the creation of the port city of Evansville. The action was instituted by appellant to enjoin the appellees from borrowing money and issuing bonds therefor, and from levying taxes by virtue of the powers conferred by the act. The questions to be decided are based upon the action of the trial court in sustaining appellees' demurrer to the second amended complaint of appellant. The propositions made by appellant for consideration, and denied by the appellees, are: (a) the act in question is unconstitutional because it is a special act and in violation of §§ 22 and 23, Art. 4, of the Constitution; (b) that the act is unconstitutional being in violation of § 17, Art. 4, Constitution, in that it is a bill for raising revenue and originated in the Senate.

On its face, the act pretends to be general. The court judicially knows that it applies only to the city of Evansville. It may be well to consider whether or not this act can ever apply to any other city, and whether or not it was intended to be limited to the city of Evansville alone. It will be noted by careful reading of section 1 that the matter of establishing a port district under this law is complete within itself. The question of the advisability of establishing a port district under the law was not left to any such districts coterminus with the cities to which they might apply, to pass upon. Section 1 declares, "That port districts * * * are hereby declared to be and are made port districts for port purposes"; from which it is adjudged, as a matter of law, that the act, if constitutional, created the port city of Evansville. Reasoning from former adjudicated cases by this court, much light is thrown upon the question concerning the limitation of population in designating the port cities declared to be port districts under this act, the limitation being more than 85,000 and less than 86,000 inhabitants. The spread in population in this act is much smaller in per cent. than the spread of population covered by the act providing for the extension of the corporation boundaries of cities, Acts 1903 p. 201, which was declared unconstitutional. The limited spread in population in the act before the court is one element, graphically expressed, which tends to and does limit the application of the act solely to the city of Evansville. Town of Longview v. City of Crawfordsville (1905), 164 Ind. 117, 73 N.E. 78, 68 L.R.A. 622, 3 Ann. Cas. 496; 1 Lewis' Sutherland, Statutory Construction, § 201; Commonwealth, ex rel., v. Gumbert (1917), 256 Pa. 531, 100 A. 990; State v. Downs (1899), 60 Kan. 788, 57 P. 962; Campbell v. City of Indianapolis (1900), 155 Ind. 186, 57 N.E. 920.

The limitation of this act to the city of Evansville is further fortified in section 4 by the language which limited the time for the appointment of the commissioners, to wit: "They shall be appointed not later than July 1, 1923, and assume office on the first day of July, 1923, and shall meet at the common council chamber of such city on said day." It is quite manifest from this language, when considered with section 1, that no city within the state which bordered on a navigable stream and which had a population of more than 85,000 and less than 86,000, was by said act declared to be and was made a port district for port purposes, except under the United States census of 1920. It appears from the part of the act quoted that it was the special intent of the legislature to create an act which would apply to but one city within the state at the time of its passage, and which could not, in the future, apply to any other city, although it might reach and come within the population limited thereby. Commonwealth, ex rel., v. Gumbert, supra. Designating a certain city generally by virtue of a narrow limitation of population, without substantial distinction which will account for or justify the restriction, and which makes it absolutely certain but the one city of the state will come under the effect of the law, will be regarded as an arbitrary method to classify, which is not within either the letter or the spirit of the constitution, and a subterfuge to avoid the constitutional prohibition against special legislation. Devine v. Com'rs of Cook County (1877), 84 Ill. 590; Groves v. County Court (1896), 42 W.Va. 587, 26 S.E. 460. The law is general in form, but, whether a law general in form is, in fact, general or special depends on its subject-matter, and not on the form it is made to take; and even though it is general in form, if, upon judicial investigation of its subject-matter, it is found to be local, the courts will not hesitate to so declare it; therefore the question whether a law general in form is general or special is a judicial one. Bullock v. Robison (1911), 176 Ind. 198, 203, 93 N.E. 998. The result of such legislation is identification, not classification. This act being limited in its application to one city, and it being not an act of classification but of identification, the court holds that it is a special act.

Without holding the law to be unconstitutional because it is a special law, does it create a corporation? The act reads (Sec. 1) "That port districts * * * are hereby declared to be and are made port districts, * * * co-extensive with the limits of said city, separate and distinct from the civil corporation of such cities, and shall be known and designated as the port city of ----- (name of city)", which, in this case, is "the port city of Evansville." The act also clothes such entity, if it be an entity, with a perpetual board and form of government, with powers to acquire, by purchase or condemnation, lands, property leases, etc., to exercise the right of eminent domain, which carries with it the right to sue, to levy and to collect assessments upon property for different purposes, to lay out, construct, etc., and operate sea walls, wharves, docks, etc., which carry therewith the right to contract, and,...