Sekerez v. Lake Porter County Regional Transp. and Planning Commission, 3--274A21

• Decision Date: 16 February 1976
• Docket Number: No. 3--274A21,3--274A21
• Parties: Zarko SEKEREZ, on behalf of himself and all other Taxpayers of the County of Lake and State of Indiana, Plaintiff-Appellant, v. LAKE PORTER COUNTY REGIONAL TRANSPORTATION AND PLANNING COMMISSION, and Norman E. Tufford, as Executive Director, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 520

341 N.E.2d 520

168 Ind.App. 102

Zarko SEKEREZ, on behalf of himself and all other Taxpayers

of the County of Lake and State of Indiana, Plaintiff-Appellant, v. LAKE PORTER COUNTY REGIONAL TRANSPORTATION AND PLANNING

COMMISSION, and Norman E. Tufford, as Executive

Director, Defendants-Appellees.

No. 3--274A21.

Court of Appeals of Indiana, Third District.

Feb. 16, 1976.

Zarko Sekerez, Merrillville, pro se.

Arch N. Bobbitt, Rex P. Killian, Indianapolis, Joseph L. Skozen, Munster, for defendants-appellees; Ruckelshaus, Bobbitt & O'Connor, Theodore L. Sendak, Atty. Gen., Robert Colker, John H. Meyers, Deputy Attys. Gen., Indianapolis, of counsel.

HOFFMAN, Judge.

Plaintiff-appellant Zarko Sekerez (Sekerez) commenced this action in the trial court, naming appellee Lake Porter County Regional Transportation and Planning Commission (Commission) as the defendant. Sekerez sought a declaratory judgment adjudicating the Indiana regional planning Act ¹ (the Act) to be unconstitutional. The Act is the statutory authority for the creation of the Commission.

The Commission filed a motion to dismiss appellant's complaint, which motion was granted by the trial court. Sekerez then filed a motion to correct errors, which was overruled by the trial court, and he subsequently prosecuted this appeal.

On appeal Sekerez again asserts that the Act does not meet the requirements of the Constitution of the State of Indiana. The specific contentions made by appellant are:

'The act violates Article 4, Section 19, of the Constitution of the State of Indiana in that:

a. It does embrace but does not express in the title the subject of taxes,

b. It embraces more than one subject, and

c. It has provisions that are not within the limitation of the title of the act.'

Any inquiry by this court into the constitutionality of a statute must be guided by the certain fundamental rules of statutory and constitutional construction. Such rules were succinctly summarized by our Supreme Court in Book v. State Office Bldg. Comm. et al. (1958), 238 Ind 120, at 133, 149 N.E.2d 273, at 280, as follows:

'(1) A statute is presumptively valid and will not be overthrown as unconstitutional if it can be sustained on any reasonable basis;

'(2) It is the duty of courts to uphold Acts of the Legislature if it is possible to do so within rules of law, and where there is doubt as to the constitutionality of a statute, it must be upheld; and

'(3) The burden is on the party attacking the constitutionality of the statute to establish the invalidating facts, and its invalidity must be clearly shown.' (Footnotes omitted.)

The effect of the portion of Art. 4, § 19, of the Constitution of the State of Indiana relied upon by appellant in making his first and third contentions was considered by our Supreme Court in Dorth v. Lugar (1971), 255 Ind. 545, 266 N.E.2d 25. ² Therein, the court, at 551 of 255 Ind., at 30--31 of 266 N.E.2d, stated:

'As was recently stated in the case of State ex rel. Indiana Real Estate Comm. v. Meier (1963), 244 Ind. 12, 190 N.E.2d 191, Art. 4, § 19, was primarily designed for those titles which are narrower in scope than the actual enactment. The purpose of the provision has been recognized as two fold: first it is intended to prevent surprise or fraud by inclusion in the body of a bill matter of which the title gives no indication and which would fail to apprise the Legislature and the people as to the subject of legislation enacted or under consideration; and secondly to prevent a combination of nonrelated subjects in the same act. (Citations omitted.) To satisfy the requirements of Art. 4, § 19, it is not necessary that the title of an act amount to an abstract of its contents, but only that it fairly give notice of the legislative matter contained therein. (Citations omitted.) In applying this constitutional provision, we are permitted to indulge in a very liberal interpretation rather than a critical and strict construction calculated to defeat the act.'

The title of the most recent amendment to the regional planning Act is 'An Act to amend IC 1971, 18--7 by adding a new chapter concerning regional plan commissions.' See: Indiana Acts 1973, P.L. 183, at 975. The title of the Act which was amended by this enactment, Indiana Acts 1967, Ch. 281, at 892--3, reads as follows:

'An Act to provide regional comprehensive planning; the creation, organization, powers and duties of regional planning commissions; the provisions of funds for the use of regional planning commissions; and the supervision of the activities of regional planning commissions under the provisions of this act.'

In State ex rel. Pearcy v. Criminal Court (1971), 257 Ind. 178, 274 N.E.2d 519, our Supreme Court considered the titles of both an original and an amendatory Act in determining whether a certain provision enacted by the Legislature was contained in the title of such Act. Similarly, reference must be made in the case at bar to both the titles quoted hereinabove in passing upon appellant's contentions.

Both parties to this appeal recognize that the Act in question in the case at bar contains provisions authorizing a tax levy for entities such as the Commission. Inasmuch as the title of the original Act contains a reference to 'the provisions of funds for the use of regional planning commissions;', it must be concluded that such title adequately gives notice of the taxation power contained in the Act. See: De Haven v. Municipal City of South Bend (1937), 212 Ind. 194, 199--201, 7 N.E.2d 184, 186--7, and cases cited therein. Cf: Orbison v. Welsh, Governor, et al. (1962), 242 Ind. 385, 394, 179 N.E.2d 727, 732.

Appellant's other contention with regard to the title of this Act is that while the Act embraces the subject of the ownership and operation of mass transit equipment, no mention is made of this subject in the title to the Act. The thrust of appellant's argument as to this issue is that the title of the Act describes the Commission's function as 'planning,' and gives no notice that the Act enables entities such...