Strange v. Board of Commissioners of County of Grant
| Decision Date | 16 March 1910 |
| Docket Number | 21,446 |
| Citation | 91 N.E. 242,173 Ind. 640 |
| Parties | Strange v. Board of Commissioners of the County of Grant |
| Court | Indiana Supreme Court |
From Grant Superior Court; Samuel E. Cook, Special Judge.
Suit by Joshua Strange against the Board of Commissioners of the County of Grant. From a judgment for defendant, plaintiff appeals.
Affirmed.
G. A Henry, for appellant.
O. L Cline and Condo & Browne, for appellee.
OPINION
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 section one of the highway act of 1907 (Acts 1907, p. 68, § 7719 Burns 1908). 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 sub-grade 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 sub-grade 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 that section sixty-three of the act of 1905 (Acts 1905, p. 521) as amended by the act of 1907 (Acts 1907, p. 137, § 7712 Burns 1908) is unconstitutional (1) as authorizing the taking of the property of the individual without an opportunity to be heard and without due process of law; (2) on the ground that it discriminates between townships; (3) because the statute grants privileges and immunities to one class of persons to the exclusion of others; (4) because the statute is local.
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 with brick. A demurrer was successfully interposed to the complaint, and that ruling is relied upon for a reversal of the judgment.
To the first point, 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, etc. (1908), 170 Ind. 595, 85 N.E. 513, where the authorities are collected to the point that this method of taxation is not obnoxious to the 14th 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, are sufficient as furnishing the notice required. Harmon v. Gephart (1910), ante, 391.
By the statutes (§§ 7712, 7718 Burns 1908, Acts 1907, p. 137, Acts 1905, p. 521, § 69), provisions are made for notice of the highway proceeding and for the assessment of damages and an opportunity is given for hearing within the rule required to constitute due process of law. See Bowlin v. Cochran (1903), 161 Ind. 486, 69 N.E. 153; Deane v. Indiana Macadam, etc., Co. (1903), 161 Ind. 371, 68 N.E. 686; Kuntz v. Sumption (1889), 117 Ind. 1, 2 L.R.A. 655, 19 N.E. 474; Garvin v. Daussman (1888), 114 Ind. 429, 5 Am. St. 637, 16 N.E. 826; Campbell v. Dwiggins (1882), 83 Ind. 473.
To the point that it is discriminative against townships having a population of more than 30,000, the question has been lately decided adversely to the claim of appellant in Smith v. Board, etc. (1910), ante, 364, but in view of the public importance of the question we here elaborate that proposition. Does the denial of the right to townships including cities or incorporated towns of 30,000 or more inhabitants to improve streets violate article 4, § 22, of the Constitution, as to the enactment of local or special laws as to laying out highways, or levying taxes for their construction? Highways are arteries of the State, and are subject to its direct control, or to its control through designated agents. State, ex rel., v. Board, etc., supra; Cones v. Board, etc. (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, etc. (1901), 156 Ind. 163, 59 N.E. 466; Gascho v. Sohl (1900), 155 Ind. 417, 58 N.E. 547; Sauntman v. Maxwell (1900), 154 Ind. 114, 54 N.E. 397. Whether in city, town or rural districts, such roads and streets 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 (1) that there is no good reason inherent in the subject-matter, or naturally growing out of it for such classification, and (2) that there can especially be no good ground for classifying townships including a city or incorporated town having a population of less than 30,000 differently from one having a population of 30,000. 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 a definite population. Bumb v. City of Evansville (1907), 168 Ind. 272, 80 N.E. 625; School City of Rushville v. Hayes (1904), 162 Ind. 193, 200, 70 N.E. 134; Evansville, etc., R. Co. v. City of Terre Haute (1903), 161 Ind. 26, 67 N.E. 686; Campbell v. City of Indianapolis (1900), 155 Ind. 186, 57 N.E. 920; City of Indianapolis v. Navin (1898), 151 Ind. 139, 41 L.R.A. 337, 47 N.E. 525. As to working in mines, we have recognized it as properly based upon the number employed. Chandler Coal Co. v. Sams (1908), 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--real distinctions. "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. 58, 67, 76 N.E. 620.
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. In either case it is a state function, as to a matter over which the State has supreme control, except as limited by the Constitution. State, ex rel., v. Board, etc., supra.
A law which applies generally to a particular class of cases is not a local or special law. Consumers' Gas Trust Co. v. Harless (1892), 131 Ind. 446 at 446-452, 15 L.R.A. 505, 29 N.E. 1062. Whether the statute is applicable to a large or a small class, is a purely legislative question. Board, etc. v. Johnson (1909), 173 Ind. 76, 89 N.E. 590.
It is urged that to hold the act valid is to make such classification that townships including within them incorporated towns or cities of less than 30,000 population may build highways within such cities or towns, and that 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, that a particular district in a city should be assessed for the construction of a street, by local assessment, rather than 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 conducive 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 a town or city and of the rural community mutually have a greater dependence upon good highways than the larger city, 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 travel, than the smaller community; but it would be inequitable to assess the property of the larger city for the construction of country ...
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