Strange v. Bd. of Com'rs of Grant Cnty.

• Decision Date: 16 March 1910
• Docket Number: No. 21,446.,21,446.
• Citation: 91 N.E. 242,173 Ind. 640
• Parties: STRANGE v. BOARD OF COM'RS OF GRANT COUNTY.
• Court: Indiana Supreme Court

173 Ind. 640

91 N.E. 242

STRANGE

v.BOARD OF COM'RS OF GRANT COUNTY.

No. 21,446.

Supreme Court of Indiana.

March 16, 1910.

Appeal from Superior Court, Grant County; Samuel E. Cook, Special Judge.

Suit by Joshua Strange to enjoin the Board of Commissioners of Grant County from letting a contract to pave a highway with brick. From a judgment sustaining a demurrer to the complaint, complainant appeals. Affirmed.G. A. Henry, for appellant. O. L. Cline and Condo & Browne, for appellee.

MAYERS, J.

Complaint in the Grant superior court by appellant, a taxpayer and freeholder of the township, to enjoin the board of commissioners of that county from letting a contract to pave with brick a highway less than three miles in length, outside a city or town, under an election under the general highway act of 1905 (Acts 1905, c. 167; Burns' Ann. St. 1908, §§ 7711 to 7737, inclusive). The complaint alleges the regularity of all the proceedings up to the time of the proposed letting of a contract, for paving the highway throughout its entire length “with vitrified paving brick, with stone curbing the whole, resting upon a subgrade of gravel or crushed stone ten inches in thickness, and thoroughly rolled, and the surface when thus prepared to be finished with a top surface of two inches of sand, and said vitrified paving brick when laid upon the subgrade to be filled with English Portland cement grouting between all the bricks and joints of said pavement,” at an estimated cost of $38,292.65, the distance being 5,870 feet and the width of the roadway 30 feet.

The basis of the complaint is (a) that the act is unconstitutional as a taking of the property of the individual without an opportunity to be heard, and without due process of law; and (b) on the ground that it discriminates between townships; and (c) that it is a law granting privileges and immunities to one class of persons; and (d) that it is local law. It is also grounded upon the claim that the law, if constitutional, does not authorize the improvement of a highway by paving with artificial material, or paving it with brick. A demurrer was unsuccessfully interposed to the complaint, and that ruling is relied upon for a reversal of the judgment.

To the first point, that the act provides for the taking of property of the individual without just compensation, without an opportunity to be heard, and without due process of law, it is sufficient to say that the proceeding is not under the power of eminent domain, but under the taxing power, and the point is fully covered in the case of State ex rel. v. Board (1908) 170 Ind. 595, 609, 85 N. E. 513, where the authorities are collected, to the point that this method of taxation is not obnoxious to the fourteenth amendment to the federal Constitution; that, in such cases, the notice which is given, and the opportunity of the taxpayer to be heard at the time the assessment of the property is made for taxation in the given taxing district, is sufficient, as furnishing the notice required. Harmon v. Gephart (No. 21,439, at this term) 90 N. E. 890.

By the statute (Rev. St. 1908, §§ 10,265, 10,279) as it existed when this proceeding was begun provision is made for notice of the assessment of real and personal property, and an opportunity given for hearing within the rule required to constitute due process of law by the cases of Bowlin v. Cochran, 161 Ind. 486, 69 N. E. 153;Deane v. Indiana Co., 161 Ind. 371, 68 N. E. 686;Kuntz v. Sumption, 117 Ind. 1, 19 N. E. 474, 2 L. R. A. 655;Garvin v. Daussman, 114 Ind. 429, 16 N. E. 826, 5 Am. St. Rep. 637;Campbell v. Dwiggins, 83 Ind. 473.

To the point that it is discriminative against townships having a population of 30,000 or over, the question has been lately decided adversely to the claim of appellant in Smith v. Board (No. 21,304, at this term) 90 N. E. 84, but, in view of the public importance of the question, we here elaborate that proposition. Does the fact that the right and power to improve streets under the act is denied to cities or incorporated towns of 30,000 inhabitants or over violate Const. art. 4, § 22, as to the enactment of local or special laws as to laying out highways, or levying taxes for their construction. They are arteries of the state, and the subject of its direct control, or control through designated agents. State v. Board, supra; Cones v. Board (1894) 137 Ind. 404, 37 N. E. 272, and cases cited. That the Legislature may control the construction and repair of streets in cities is well established. Lowe v. Board (1900) 156 Ind. 163, 59 N. E. 466;Gascho v. Sohl (1900) 155 Ind. 417, 58 N. E. 547;Sauntman v. Maxwell (1899) 154 Ind. 114, 54 N. E. 397. Whether in city, town, or rural districts, they are state highways, and it was evidently this fact which induced the enactment of the constitutional inhibition against special laws, as to their laying out and construction, and requiring uniformity throughout the state, not as to the amounts to be levied in the several political subdivisions, but as to the procedure, and the manner of determining and fixing the character and extent of the improvement, and the taxing district. It is purely a question of the taxing power.

It is urged, first, that there is no good reason inherent in the subject-matter, or naturally growing out of it for such classification; and, second, that there can especially be no good ground for classifying townships having a population of 30,000 differently from one having a population of 30,001. If there is reason for the classification, then, in the very nature of the case, the existence of the power implies the right to fix it at some place, or at some number, or at some population, and as applied to cities for certain purposes, the right is admittedly given to fix it at definite population. Bumb v. Evansville, 168 Ind. 272, 80 N. E. 625;School City v. Hayes, 162 Ind. 193, 200, 70 N. E. 134;Evansville, etc., Co. v. Terre Haute, 161 Ind. 26, 67 N. E. 686;Campbell v. City, 155 Ind. 186, 57 N. E. 920;City v. Navin, 151 Ind. 139, 47 N. E. 525, 51 N. E. 80, 41 L. R. A. 337, 344. As to working in mines, we have recognized it as properly based upon the number employed. Chandler Co. v. Sames, 170 Ind. 623, 85 N. E. 341. The classification must not be arbitrary or whimsical; it must be based upon reasons which naturally inhere in the subject-matter, or real distinction. “It is settled however as a general rule that it is within the discretion of the Legislature to determine what property, as regards its location with respect to the local improvement, shall be assessed.” Spaulding v. Mott (1906) 167 Ind. 67, 76 N. E. 622. Whether it is by local assessment, or by taxation of all the property in a given district, it is done under the taxing power, and the tax may be laid on all the property in the district, or by local assessment against the real estate benefited, and in either case is a state function, as to a matter over which the state has supreme control, except as limited by the Constitution. State v. Board, supra. A law which applies generally to a particular class of cases is not a local or special law. Consumers' Co. v. Harless (1891) 131 Ind. 446-452, 29 N. E. 1062, 15 L. R. A. 505. Whether the statute is applicable to a large, or a small class, is a purely legislative question. Board v. Johnson (1909) 89 N. E. 590.

It is urged that to hold the act valid is to make such classification; that, while townships including within them incorporated towns or cities of less than 30,000 population may build highways within such cities or towns, townships in which are cities or incorporated towns exceeding 30,000 population may not build highways in such cities or incorporated towns. That is true, but we see no difficulty from that fact. All coming within the class are treated alike. There is no more reason inherent in the subject-matter, or naturally pertaining to the subject, why a particular district in a city should be assessed for the construction of a street, by local assessment, rather than by the entire property within the municipality, than there is that the citizens of a township, outside a city of a given population, should construct highways outside the city, or that the citizens within the municipality should construct the streets therein by local assessments or general taxation, and the rural citizens construct highways outside the cities by like methods; or that citizens of one township, or of a city or incorporated town, should be taxed generally to maintain free gravel roads outside the limits of either; or that a district of a certain population, partly rural and partly city, should not equally contribute to an improvement strongly related to the common interest. In its last analysis, it demonstrates the proposition that it is a purely legislative question in fixing the taxing district in either case. Some additional reasons which justify such classification as the act under consideration establishes are the following: As between the smaller town or city and the rural community it is a relative question; the inhabitants of town or city, and of the rural community mutually, have a greater dependence upon good highways than the larger city, ordinarily, owing to better communication, or facilities by other public conveniences of travel, in or to the latter and the larger city ordinarily requires a better, or more expensive and more permanent, street, owing to the character and increased travels, than the smaller community. But it would be inequitable to assess the property of the larger city for the construction of country highways for which its citizens have comparatively little use, and, conversely, to assess the rural citizens for the construction of streets much more costly than any use which they could put them to would require. The larger city might not receive an adequate return for the drafts made upon it by the exactions which would be required in taxes for...