State ex rel. City of Marion v. Grant Circuit Court, 29662

• Citation: 157 N.E.2d 188,239 Ind. 315
• Decision Date: 26 March 1959
• Docket Number: No. 29662,29662
• Parties: STATE of Indiana, on the Relation of the CITY OF MARION, Indiana; the Board of Public Works and Safety of the City of Marion, Indiana; the Common Council of the City of Marion, Indiana; Willard G. Blackman, Mayor; Gordon L. Watson, Water Works and Sanitation Superintendent; and Stanley Stephenson, Controller; Joseph C. Horner, City Engineer; Arden Zobrosky, City Attorney; Each Being Members of the Board of Public Works and Safety of the City of Marion, Indiana; Robert Hulley, Dale Whitton, Ray Burns, Howard Cline, Francis Vanatter, Clair Stafford, Ross Bartlett, Harold Sharp and Lewis Raven, Each Being a Member of the Common Council of the City of Marion, Indiana, Relators, v. GRANT CIRCUIT COURT, of Grant County, State of Indiana, and Robert T. Caine, as Judge of the Grant Circuit Court, of Grant County, State of Indiana, Respondents.
• Court: Indiana Supreme Court

Page 188

157 N.E.2d 188

239 Ind. 315

STATE of Indiana, on the Relation of the CITY OF MARION Indiana; the Board of Public Works and Safety of the City of Marion, Indiana; the Common Council of the City of Marion Indiana; Willard G. Blackman, Mayor; Gordon L. Watson, Water Works and Sanitation Superintendent; and Stanley Stephenson Controller; Joseph C. Horner, City Engineer; Arden Zobrosky City Attorney; Each Being Members of the Board of Public Works and Safety of the City of Marion, Indiana; Robert Hulley, Dale Whitton, Ray Burns, Howard Cline, Francis Vanatter, Clair Stafford, Ross Bartlett, Harold Sharp and Lewis Raven, Each Being a Member of the Common Council of the City of Marion, Indiana, Relators, v. GRANT CIRCUIT COURT, of Grant County, State of Indiana, and Robert T. Caine, as Judge of the Grant Circuit Court, of Grant County, State of Indiana, Respondents.

No. 29662.

Supreme Court of Indiana.

March 26, 1959.

Arden W. Zobrosky, Marion, for relators.

No attorneys listed for respondents.

LANDIS, Chief Justice.

Relators bring original action in this court for writ of mandate and prohibition asking that respondent court be commanded to dismiss a certain cause brought by James Church and others against relators in respondent court, and further asking that respondent court be prohibited from entering further orders, decrees, and judgments in said cause pending before it.

The action pending in respondent court below was brought by James Church and others against relators, The City of Marion, et al., seeking an injunction against the collection of sewage charges by the city and its officers as outlined in general ordinance 50-1957 of said city, which attempted to amend previous ordinance 17-1954, said suit alleging the rates charged by the amendatory ordinance were discriminatory between classes of users, were unjust and inequitable, and were confiscatory of the property of taxpayers and owners of real estate in the City of Marion.

Relators filed motion to dismiss the action against them which was overruled by the court below, and relators then filed the instant original action in this court for writ of mandate and prohibition.

Relators first contend in support of their application for the writ that respondent court did not have jurisdiction of the subject matter, of the parties, or of the particular case, for the reason that the legislature has delegated the power to establish rates for municipal sewage disposal systems to the common council of cities and has not provided for judicial review of the council's action. ¹ Relators assert that in the absence of fraud courts cannot judicially review the action of a city council in establishing by ordinance rates for a city's sewage disposal system.

Relators' position is not well taken. Since the landmark case of Warren v. Indiana Telephone Co., 1940, 217 Ind. 93, 26 N.E.2d 399, it is well settled that the right of a party to judicial review is not subject to the grace of the legislative branch of the government. Relators make reference to the dissenting opinion of Morris, J. in Ex parte France, 1911, 176 Ind. 72, 95 N.E. 515, discussing many instances where there is allegedly no right of appeal in the absence of statutory provisions therefor. However, the opinions there expressed to that effect as well as those of other similar opinions were specifically disapproved in the Warren case, and cannot now be considered as authoritative pronouncements of this jurisdiction.

Relators concede that we held in Public Service Comm. v. Indiana Bell Tel. Co., 1953, 232 Ind. 332, 108 N.E.2d 889, 112 N.E.2d 751, that the judicial branch of the government may interfere with the rulings of administrative bodies adopted under laws of the legislature whenever a judicial question is involved, as for instance in the case of fraudulent, arbitrary or capricious action by an administrative body, such a question is presented to the court below by the complaint for an injunction alleging the new rates are discriminatory, unjust, inequitable and confiscatory. It matters not that in this case the legislature has delegated the authority to the city council to fix sewage disposal rates instead of delegating such power to a commission or administrative agency. The right of a party to a judicial review in a proper case cannot be denied simply because of the nature of the agency or instrumentality to whom the legislature has delegated the rate making function. Relators concede for purposes of their first contention that no statutory remedy has been provided and we must hold that the right to judicial review is not dependent upon the legislature but is guaranteed by the due process and due course of law clauses of the federal and state constitutions (14th Amendment U. S. Constitution; Art. 1, § 12, Indiana Constitution), and this constitutional authority may not be denied by legislative...