Wilkins v. Leeds

• Decision Date: 27 February 1940
• Docket Number: 27298.
• Citation: 25 N.E.2d 442,216 Ind. 508
• Parties: WILKINS et al. v. LEEDS.
• Court: Indiana Supreme Court

25 N.E.2d 442

216 Ind. 508

WILKINS et al. v. LEEDS.

No. 27298.

Supreme Court of Indiana

February 27, 1940

Appeal from Randolph Circuit Court; John W. Macy, Judge.

Henry U. Johnson, II, of Richmond, for appellants.

Denver C. Harlan, of Richmond, for appellee.

FANSLER Judge.

The appellee, an interested taxpayer, and a rate payer to the municipally-owned light and power plant of the City of Richmond, brought this action seeking a declaratory judgment to the effect that the depreciation reserve fund of the municipally-owned plant is a public fund which is required to be deposited under the Public Depository Laws of the state and that there is no power, right, or authority in the public officers to invest such fund in securities, bonds, loans, or other like investments, but that it may be used only as a special utility fund for the purpose of providing funds for the purchase, maintenance, extension, replacement, and repair of the municipal plant. There was an answer in general denial, and judgment at prayed.

By appropriate assignment of error, the appellants question the correctness of the judgment.

The appellants concede that if municipally-owned and operated utilities do not have the right to invest their depreciation reserve fund in securities, bonds, or loans, or otherwise than for maintenance, extensions, and replacements, then, and in that event, such funds are public funds and subject to the provision of the Public Depository Law, Burns' Ann.St.1933, § 61-601 et seq. See Storen Treasurer, v. Sexton, Treasurer, et al., 1936, 209 Ind. 589, 200 N.E. 251, 104 A.L.R. 1359.

Section 1 of chapter 76 of the Public Utilities Law of 1913 (Acts 1913, p. 167) defines the term 'public utility,' as used in the act, as including 'every city or town, that now or hereafter may own, operate, manage or control any street railway or interurban railway or any plant or equipment within the state for the conveyance of telegraph or telephone messages, or for the production, transmission, delivery or furnishing of heat, light, water or power, or for the furnishing of elevator or warehouse service either directly or indirectly to or for the public.' Section 22 of the act of 1913, supra, as amended by section 1 of chapter 64 of the Acts of 1925 (Acts 1925, p. 210), provides that every 'public utility' shall maintain a reserve for depreciation. Section 25 of the act, as amended by section 2 of chapter 64 of the Acts of 1925 (Acts 1925, p. 210), provides that the depreciation reserve shall be carried in a separate fund, and that: 'Any balance in the fund, not applied to depreciation expenses, may be invested by the public utility * * *.' It is upon this last provision that the appellants rely for authority to invest. Chapter 190 of the Acts of 1933 (Acts 1933, p. 928) amends section 1 of the act of 1913 by changing the definition of the term 'public utility' so as to exclude municipally-owned plants. There are other sections in the act of 1933 providing for the regulation and operation of municipally-owned utilities, and, by section 16, it is provided that: 'Such governing body shall set saide sufficient of the remainder of the earnings of such utility into a separate and special fund to be identified as the special utility fund, to be used and applied in the maintenance, extension, replacement, in whole or in part, repair and operation of such utility.' This provision seems to amply cover the purposes of a reserve for depreciation. It cannot be doubted that the Legislature intended by the act of 1933 to take municipally-owned plants out of the general public utilities statute.

The appellants contend that, since, under article 4, section 21 of the Constitution of Indiana, no act or section...