Wright v. House

• Citation: 121 N.E. 433,188 Ind. 247
• Decision Date: 10 January 1919
• Docket Number: No. 23476.,23476.
• Parties: WRIGHT et al. v. HOUSE.
• Court: Indiana Supreme Court

188 Ind. 247

121 N.E. 433

WRIGHT et al.

v.HOUSE.

No. 23476.

Supreme Court of Indiana.

Jan. 10, 1919.

Appeal from Circuit Court, Hamilton County; Ernest E. Cloe, Judge.

Action by Robert M. House against Lorenzo H. Wright and others, to enjoin the improvement of a highway. Judgment for plaintiff, and defendants appeal. Reversed, with instructions.Ele Stansbury, of Indianapolis, and John H. Edwards, of Mitchell, for appellants.

Christian, Christian & Waltz, of Noblesville, and Wm. V. Rooker, of Indianapolis, for appellee.

LAIRY, J.

At the 1917 session of the Legislature of the state of Indiana a law was passed entitled “An act creating a highway commission, providing for the construction, reconstruction, maintenance, repair and control of public highways, and providing for cooperation with the federal government in the construction of rural post roads,” approved March 8, 1917. Acts 1917, p. 253. In accordance with the provisions of this act the Governor of the state appointed Lorenzo H. Wright, David C. Jenkines, Haines Egbert, and Lewis Taylor as members of the state highway commission. This commission, in accordance with the provisions of section 9 of the act, designated certain roads of the state as main market highways, which designation was approved by the Governor. One of the highways so designated extends through the county of Hamilton, in said state, 20 miles of which road is within the limits of said county. On the 4th day of December, 1917, the board of commissioners of Hamilton county made an order, directing that a portion of main market highway No. 1, as designated by the state highway commission, beginning at the south boundary line of Hamilton county and extending north a distance of approximately 5 miles to the town of Carmel, be improved as a main market highway according to plans, specifications, and estimates to be furnished by the state highway engineer and in accordance with the provision of the act heretofore cited. After entering the order the board of commissioners made a written application to the state highwaycommission for state aid in the construction of said work, agreeing therein that the county of Hamilton would pay 50 per cent. of the total cost of said improvement, and reciting therein that the money to meet the county's part of the expense would be available upon the completion and acceptance of the work, as provided by section 18 of the act, and that the money would be raised by the issue of the bonds of Hamilton county, as provided by section 28 of the act under consideration.

This action was brought by appellee as a property owner and taxpayer of Hamilton county against the members of the state highway commission and the members of the board of commissioners of Hamilton county and the other state and county officials who are charged with duties in carrying out the provisions of the act, the purpose of the action being to enjoin the defendants and each of them from taking further action under said statute, on the ground that it was void because in conflict with certain provisions of the federal Constitution and also certain provisions of the Constitution of this state. Appellee prevailed in the trial court, and appellants seek by this appeal to reverse the decision of that court.

Appellee asserts that the act in question violates the federal Constitution in two particulars: First, that in its operation it would have the effect of depriving him and others in like situation of property without due process of law, in violation of the Fourteenth Amendment; and, second, that its operation would result in the taking of his property, and the property of others in like situation, for a public use without just compensation, in violation of the Fifth Amendment.

[1] The Supreme Court of the United States has decided that the Fifth Amendment to the federal Constitution applies only to the federal government. It follows that it does not apply to the government of the several states, and that a state statute cannot therefore be held invalid because it may conflict with the provisions of this amendment. Fallbrook v. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369. Our state Constitution contains a similar provision, which will be considered later in this opinion.

[2][3][4] On the other hand, the Fourteenth Amendment is prohibitive on the several states in respect to the rights of citizens thereby guaranteed. A state law, therefore, which would have the effect, by its enforcement, of depriving a citizen of his property without due process of law would be void as violative of this amendment. In opposition to the validity of the act under consideration, it is asserted that the provisions made therein for raising the money with which to pay for the improvement, if enforced, will result in depriving appellee, and others in like situation, of property without affording them due process of law. This assertion is based on the assumption that, by due process of law, appellee is entitled to have the amount, which he shall be required to pay for the proposed improvement, determined and fixed by a court or some other regularly constituted tribunal after a notice and an opportunity to be heard. This court has recently held that where a local improvement of a public nature is constructed under a law providing that the costs shall be paid in whole or in part from the proceeds of special assessments to be levied on the property beneficially affected thereby, the property owners have a right to notice and an opportunity to be heard before a special assessment of this kind can be legally imposed. Harmon v. Bolley (1918) 120 N. E. 33. The reason for the rule there announced is that such assessments are made on the theory that each particular piece of property assessed is especially affected and benefited to an extent at least equal to the amount of the assessment imposed. Such assessments are imposed on the theory that the property affected is enhanced in value or otherwise specially benefited to the full amount of the assessments imposed, and that nothing is exacted by the assessment which is not fully compensated by benefits actually accruing to the land affected. Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443. The rule thus announced applies only to special assessments made against specific property based on actual benefits resulting thereto on account of a local improvement. The rule has no application to the exercise of the general taxing power of a state or any of its municipal subdivisions. Taxes levied for governmental purposes are not imposed on the basis of a special and particular benefit accruing to each citizen in proportion to the taxes paid. The protection of life, liberty, and property, and the other rights, privileges, immunities, and benefits which a citizen enjoys as a result of living under the protection of an organized government are of such a nature that their value cannot be measured by dollars and cents. The power to tax for such purpose is not limited to actual benefits resulting to the citizen by reason of the maintenance of government, but such power is limited only by governmental needs. Harmon v. Bolley, supra; Kelly v. Pittsburgh, 104 U. S. 78, 26 L. Ed. 658.

[5][6][7][8][9] There can be no doubt that improvements of a public nature, such as the construction and improvement of highways, waterways, bridges, and other works of a like nature, may be of such general benefit as to warrant their construction at government expense in the exercise of governmental power. Where the Legislature authorizes an improvement of the character mentioned to be made by the state or by any of its governmental subdivisions, it has power to determine the manner in which the fund shall be raised for the payment of the costs and expenses. If it decides that the improvement is of such general benefit and public importance as to justify such a course, it may provide that the entire fund shall be raised by a general tax. In case the work contemplated is not regarded by the lawmaking power as of sufficient public importance to justify the payment of the entire cost by general taxation, it may provide that property beneficially affected by the improvement shall bear a portion of the cost to be specially assessed against it in proportion to the accruing benefits, and that the remainder of the cost shall be paid by the municipality within which the improvement is located from funds raised by general taxation, or the Legislature may provide that the entire cost and expense of the improvement shall be specially assessed against the property beneficially affected in case the total costs and expenses do not exceed the aggregate special benefits accruing to the property so affected. Page & Jones, Taxation by Assessment, § 239; Lowe v. Board (1901), 156 Ind. 163, 59 N. E. 466;State ex rel. v. Board (1908) 170 Ind. 595, 85 N. E. 513;City of Indianapolis v. American, etc., Co. (1911) 176 Ind. 510, 96 N. E. 608. The power to determine in which of these ways such a fund shall be raised is legislative in character, and the action of the Legislature in that regard is binding on the other departments of government.

In framing the statute under consideration the Legislature provided that the entire cost of the contemplated construction and improvement of highways should be paid from funds raised by the exercise of the general taxing power, and no provision is made for the payment of any part of such cost by special assessments against property on the theory that it will receive benefits to the extent of the assessment imposed. The act provides that where a part of a main market highway lying within the limits of a county is improved under the provisions of the act, the costs of such improvement shall be paid, one-half by the state and one-half by the county within which the improvement is located, except as to portions of such improvement located within the limits of a city or...