DISSENTING OPINION Our Constitution draws the line to provide a "government of laws and not of men,"1 whether the men be in the executive department, or sit in the legislative department, or even sit upon the court with power to interpret the Constitution and declare laws of the General Assembly invalid. But when this court indulges in the field of constitution making by usurping the functions of the General Assembly which proposes constitutional amendments, and dispensing with the necessity of adoption by the people, under the guise of an interpretation unwarranted by the wording of the Constitution, or the many well decided cases of this court to the contrary, notice of the occurrence should be brought into the record. The power reposed in this court to declare a solemn act of the Assembly in violation of our Constitution is a necessary power under our scheme of government, but at the same time it is a dangerous power, and for that reason should be used with great reluctance. This court at an early date recognized and appreciated such grave responsibility.
"The constitution is paramount to any statute, and whenever the two are in conflict the latter must be held void. But where it is not clear that such conflict exists, the court must not undertake to annul the statute. This rule is well settled, and it is founded in unquestionable wisdom. The apprehension sometimes, though rarely, expressed, that this rule is vicious, and constantly tends toward the destruction of popular liberty, by gradually destroying the constitutional limitations of legislative power, results from a failure to comprehend the character of our forms of government, and the fundamental basis upon which they rest. The legislature is peculiarly under the control of the popular will. It is liable to be changed, at short intervals, by elections. *Page 525 Its errors can, therefore, be quickly cured. The courts are more remote from the reach of the people. If we, by following our doubts, in the absence of clear convictions, shall abridge the just authority of the legislature, there is no remedy for six years. Thus, to whatever extent this court might err, in denying the rightful authority of the law-making department, we would chain that authority, for a long period, at our feet. It is better and safer, therefore, that the judiciary, if err it must, should not err in that direction. If either department of the government may slightly overstep the limits of its constitutional powers, it should be that one whose official life shall soonest end. It has the least motive to usurp power not given, and the people can sooner relieve themselves of its mistake. Herein is a sufficient reason that the courts should never strike down a statute, unless its conflict with the constitution is clear. Then, too, the judiciary ought to accord to the legislature as much purity of purpose as it would claim for itself; as honest a desire to obey the constitution, and also, a high capacity to judge of its meaning. Hence, its action is entitled to a respect which should beget caution in attempting to set it aside. This, with that corresponding caution of the legislature, in the exercise of doubtful powers, which the oath of office naturally excites in conscientious men, would render the judicial sentence of nullity upon legislative action as rare a thing as it ought to be, and secure that harmonious co-operation of the two departments, and that independence of both, which are essential to good government." Brown v. Buzan (1865), 24 Ind. 194, 196, 197.
See also State ex rel. Harrison v. Menaugh (1898),151 Ind. 260, 266, 51 N.E. 117, 357; State v. Gerhardt (1896),145 Ind. 439, 450, 451, 44 N.E. 469; School City of Marion v.Forrest (1906), 168 Ind. 94, 98, 78 N.E. 187.
"The legislature is supreme, except as limited by the Constitution." State ex rel. Workman v. Goldthait (1909),172 Ind. 210, 220, 87 N.E. 133. "There is this *Page 526 difference in the rules of construction of the federal and state constitutions: The congress may do nothing that is not permitted expressly or by clear implication; the legislature may do anything that is not forbidden expressly or by clear implication." In re Application of Bank of Commerce (1899),153 Ind. 460, 462, 463, 53 N.E. 950, 47 L.R.A. 489. "The constitutions of the several states, unlike the federal constitution, are not grants of power. On the contrary, they are limitations on the legislative powers of the states." 12 C.J. § 167, p. 745.
Before this court has the right to declare an act of the General Assembly unconstitutional, it must be clearly shown that the act violates some provision of the Constitution, or "unless some constitutional restriction can be designated, a legislative act must be held authoritative." State v. Patterson (1914),181 Ind. 660, 664, 105 N.E. 228. Article 13 does not prohibit the legislature from creating additional political or municipal corporations or taxing districts. It merely states what will happen when a two per centum debt limitation for any political or municipal corporation is exceeded. "No political or municipal corporation in this State shall ever become indebted in any manner or for any purpose to an amount in the aggregate exceeding two per centum on the value of the taxable property within such corporation, to be ascertained by the last assessment for State and county taxes, previous to the incurring of such indebtedness;and all bonds or obligations, in excess of such amount, given bysuch corporations, shall be void: . . ."2 (Italics supplied.) *Page 527
"In construing constitutional provisions, a rule of general acceptance is `that which is expressed makes that which is silent to cease.' Gougar v. Timberlake (1897), 148 Ind. 38, 48, 46 N.E. 339, 37 L.R.A. 644, 62 Am. St. 487." State v. Patterson (1914), 181 Ind. 660, 664, 665, 105 N.E. 228, supra.
In construing § 12 of Article 9 of the Constitution of Illinois, which contains a five per centum debt limitation on municipal corporations, the Supreme Court of that state said: "The prohibition of a thing, by name, in the constitution, is equivalent to an admission of what is not named. Prettyman v.Supervisors, etc., 19 Ill. 406, 411." Wilson v. Board ofTrustees of the Sanitary District of Chicago (1890), 133 Ill. 443, 478, 27 N.E. 203, 211.3 The only logical interpretation of Article 13 is that bonds or obligations which do not exceed two per centum of the value of taxable property within the corporation are valid and that only bonds or obligations in excess of such amount shall be void. If the debt capacity has not been exhausted, and bonds should be issued up to and beyond the debt limitation, only the bonds in excess of the limitation should be void. If the Constitution intended to void the entire issue, it would have said so. As the amendment stands, the words "and all bonds or obligations in excess of such amount, given by corporations, shall be void" would be surplusage if an entire bond issue was in an amount which used up the *Page 528 remaining two per centum limitation and exceeded the limitation. Why was it necessary to say the excess should be void if the whole issue was to be void? The decisions from other states under statutory or constitutional debt limitation provisions which are not as specific as Article 13, follow the construction that only the excess sum should be treated as a nullity. Turner v.Woodson County (1882), 27 Kan. 314; Kansas City R. Co. v.Hendricks (1922), 150 La. 134, 90 So. 545; Kirby v. Monroe (1921), 214 Mich. 615, 183 N.W. 216; Schmitz v. Zeh (1904),91 Minn. 290, 97 N.W. 1049; Smith v. Rockford (1907), 9 Ohio C.C. (N.S.) 465; Chicago R.R. v. Osage County (1888),38 Kan. 597, 16 P. 828; Aetna Life Ins. v. Burrton (1896), 75 Fed. 962; Columbus v. Woonsocket Sav. Inst. (1902), 114 Fed. 162.
Concerning the Iowa Constitution4 the Supreme Court of that state said:
". . . The question now arises, is the district liable for the amount of indebtedness within the restricted limit. We think it is. As we have seen, the constitutional inhibition operates upon the indebtedness, *Page 529 not upon the form of the debt. The district may become indebted to the amount of $2,057.50 by bond. If the debt exceeds that amount, it is void as to the excess, because of the inhibition upon the power of the district to exceed the limit, and the bonds as to the same excess are void because of the non-existence of a valid debt therefor. But this restriction does not extend to the sum of $2,057.50 for which the district had power to issue its bonds. That sum is a valid debt. The bonds to that extent are valid." McPherson v. Foster Bros. (1876), 43 Iowa 48, 72.
This construction was not presented by the briefs inCerajewski v. McVey, et al. (1947), 225 Ind. 67,72 N.E.2d 650, although by the stipulation of facts the School City of Hammond had a bonding capacity of $1,092,400 before the two per centum limitation was exceeded. The proposed bond issue was in the sum of $1,998,000, thus exceeding the constitutional limit by $905,600. In that case this court erred in holding the entire issue void, even if it be assumed that the Technical-Vocational High School District of the City of Hammond was in fact nothing more than the School City of Hammond.5 The Cerajewski Case relied upon the case of Hively v. School City of Nappanee (1929), 202 Ind. 28, 169 N.E. 51, 171 N.E. 381, 71 A.L.R. 1311, and quoted with approval its language to the effect that that which cannot be done directly may not be done indirectly. This is not an infallible major premise either in construing a constitution or a statute. That an avoidance is not an evasion, *Page 530 was recognized by this court in the later case of JeffersonSchool Township v. Jefferson Township School Building Co. (1937), 212 Ind. 542, 10 N.E.2d 608, wherein the lease of a school building with option to purchase was held constitutional. At page 551, this court, in its opinion by Judge Treanor, said:
"The fact that the building company was willing to give the school building to the Jefferson School Township when the building company had been paid an amount equal to its investment and a reasonable return thereon does not change the lease-contract into a contract to purchase. It is true that the Jefferson School Township, through the device of a long term lease providing for annual rental payments, may become the owner of a school building which, in view of Article 13 of the State Constitution, it could not have acquired in 1928 by issuing bonds. But it does not follow that either the arrangement or the result constitutes an evasion of the limitations of Article 13 of the State Constitution. . . ."6
Nor was the case of Voss v. Waterloo Water Co. (1904),163 Ind. 69, 71 N.E. 208, 66 L.R.A. 95, quoted with approval in the Cerajewski case, followed by this court in Bollenbacher v.Harris, Mayor (1925), 196 Ind. 657, 148 N.E. 417, wherein this court held that the debts of the Bloomington Water Company were not the debts of the City of Bloomington, even though the city had subscribed to all of the common stock of the water works corporation except nine shares.
"It is said in Cooley, Taxation, 113: `Taxing districts may be as numerous as the purposes for which taxes are levied. The district for a single highway may not be the same as that for the schoolhouse located upon it. *Page 531 It is not essential that the political districts of the state shall be the same as the taxing districts, but special districts may be established for special purposes, wholly ignoring the political divisions.'" Brown v. Miller (1904), 162 Ind. 684, 686, 71 N.E. 122. That this is the law is admitted by the majority opinion and the Cerajewski case. But when it is denied that the hospital taxing district is for a local public improvement for which bonds may be issued which are not debts, as held by the numerous decisions construing Article 13, the majority is faced with the dilemma of deciding either that the taxing district is substantially a new municipal corporation, or that it is substantially the civil city of Indianapolis.7 If the hospital district is a new municipal corporation, there is no provision in the constitution which prohibits its creation, and its debts would not be the debts of Indianapolis. The other horn of the dilemma is equally fatal to a reversal, for if the taxing district is substantially the civil city of Indianapolis, as the majority opinion clearly holds, then the bond issue of $2,600,000 is clearly valid, for under the stipulated facts in this appeal, the constitutional bonding limit of the city was over $11,000,000, and at all times mentioned in the stipulation the aggregate bonded indebtedness of the city, including the hospital district and its proposed new issue of bonds, left a surplus bonding capacity. On *Page 532 January 19, 1949, such unused and available bonding capacity, before reaching the two per centum limit, was more than $4,500,000. To hold the proposed issue void because the hospital act, ch. 200 of 1945 Acts, as amended by ch. 323 of 1947 Acts, § 48-8401 et seq., Burns' 1933 (1947 Supp.), permits an evasion of the constitutional debts limitation of the city of Indianapolis, but admit that the bonds when included in the aggregate of the indebtedness of the city would not exceed the two per centum limitation, is judicial constitution making unwarranted by any authority and unparalleled in the books. We are not construing the federal constitution, but a state constitution, under which, in the absence of any federal question, the authority of the legislature is supreme unless clearly restrained by that constitution.
The fact that from an earlier date the cities of this state have been vested by the legislature with authority to care for matters of health is of no controlling significance in determining the issues in this appeal. Matters of health come within the general police powers of the state, which the legislature may delegate to municipal corporations within its discretion. Municipalities are creatures of the legislature, and their powers are subject to its control in the absence of any constitutional restriction. See State ex rel. Board ofCommissioners of County of Hendricks v. Board of Commissionersof County of Marion (1908), 170 Ind. 595, 85 N.E. 513. "A municipal corporation is not clothed with any vested right in a public office; nor, indeed, does it possess a vested right in public property. It has been long and firmly settled that the charters of public corporations may be repealed or altered as the Legislature, in the exercise of its constitutional powers, deems proper. Sloan v. State, 8 Blackf. 361; Meriwether v.Garrett, *Page 533 102 U.S. 472; Coffin v. State, ex rel., 7 Ind. 157; 1 Dillon,Municipal Corporations, §§ 61, 63, 71 (4th ed.). See, also, authorities collected in Elliott, Roads and Streets, p. 320."The State ex rel. City of Terre Haute v. Kolsem et al. (1891), 130 Ind. 434, 437, 29 N.E. 595. The principles involved in legislative exercise of the police power have been well stated by Judge Fansler in Edwards v. Housing Authority of City ofMuncie (1939), 215 Ind. 330, 335, 19 N.E.2d 741, as follows:
"That the legislature has power to protect public health, safety, morals, and welfare, and to exercise and to authorize the exercising of the power of taxation and eminent domain, and the raising and expenditure of public funds for such purposes, cannot be doubted. From time to time boards and commissions have been created and authorized and vested with authority to carry out projects for the protection of the public. The name given to such instrumentality is of no significance, nor do we find any limit upon the character or number of public corporations or bodies politic, which the legislature may authorize or create to accomplish such purposes."
The fact that the act provided a plan whereby certain officials of the City of Indianapolis had duties to perform in the operation of the Department of Public Health and Hospitals should not prevent the existence of this separate taxing district. Since the adoption of the 1881 amendment to the constitution, this court has time after time validated taxing districts which were operated by officials of an existing municipal corporation whether or not the area of the taxing district coincided with the area of the municipal corporation.8 But *Page 534 in this appeal the area of the taxing district is substantially larger than the City of Indianapolis, since Woodruff Place, by operation of the act, is incorporated as a part of the district, and other incorporated cities or towns by petition may become a part of the district, as Ravenswood has already done. The assessed valuation of Woodruff Place and Ravenswood is $1,725,350. To strain the maxim de minimis non curat lex to justify ignoring this stipulated fact distorts the maxim beyond recognition. No doubt it will be most interesting to the taxpayers of these municipalities to learn that their assessed valuations are so small that the law will consider them as trifles, but when they go to the county treasurer's office to pay their taxes they can hardly escape these liabilities on the ground that their property values are so small that the law should ignore them.
Nor is there any reasonable ground for denying that a hospital may be a local public improvement. The guarantee against excessive municipal indebtedness provided by Article 13 does not prohibit the creation of special taxing districts for local improvements, nor does it purport to say that only public improvements existing *Page 535 at the time of its adoption could be considered public improvements for all time, "for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. . . . ." Euclid v. Ambler Realty Co. (1926),272 U.S. 365, 387, 47 S.Ct. 114, 71 L.Ed. 303, 310. There are no cases in the Indiana books showing that sewage disposal plants were in existence in this state in 1881. Are we, therefore, to hold that a sewage disposal plant would not be a local improvement to be paid for under the taxing power exercised in a taxing district?9 Is not the hospital, which cares for the typhoid patient and may cure some typhoid carrier just as much a part of our sanitation system under modern government as the sanitary sewer system with its disposal plant which disposes of and makes harmless the results of such illnesses. Why then should a hospital be incapable of being a local public improvement? The lands and property within such district receive an even greater benefit than from a public park, which this court in Johnson v.Board of Park Commissioners (1930), 202 Ind. 282, 174 N.E. 191, held a local public improvement, or from roads, streets or boulevards which have never been successfully questioned as local public improvements.
The correctness of the law on taxing districts for local public improvements declared in Board of Commissioners of County ofMonroe v. Harrell (1897), *Page 536 147 Ind. 500, 46 N.E. 124, has not been questioned by this court until the decision in this appeal. The arguments against the Harrell case appearing in Board of Commissioners of Switzerland County v.Reeves (1897), 148 Ind. 467, 46 N.E. 995, which are the reasons for holding the present issue of hospital bonds invalid, were not those of the court, and Judge McCabe makes it perfectly clear he was only expressing his own personal opinions and not those of the court.
We are not dealing with the guarantees of due process, or a bill of rights, but with a specific prohibition which does not prohibit the creation of new political subdivisions, or the financing of local public improvements by means of bond issues to be paid by assessments or special taxes. Article 13 draws the line; the line may not be evaded, but it may be lawfully avoided. The Indiana cases on the creation of taxing districts for financing of public improvement have consistently held that the prohibition may be lawfully and constitutionally avoided, just as completely as this court, within this term, lawfully avoided the effect of Chapter 146 of the 1949 Acts, which established United States Central Standard Time as the legal time within the state, by conducting the business of the court on Central Standard time, but also advancing one hour earlier the time schedule for transacting court business.
At common law there was no restriction on the amount of debt which the sovereign or its political subdivisions could incur. As to whether or not any act evades rather than avoids a constitutional prohibition depends upon the constitutional intention, but it must be remembered always that this intention must be an expressed intention as contained in the exact and specific words used. If we establish the rule that each case must stand on its own bottom, and we will look through form to substance *Page 537 by looking to the effect and result to see if any act violates Article 13, we permit an elastic construction raised to the nth degree, depending upon the preconceived ideas of a passing majority of this court as to the desirable manner in which public improvements should be financed. "With the justice, the propriety, the policy, the advisability or desirability or undesirability of a statute, the courts can have nothing whatever to do, so long as the act does not infringe some provision of the constitution, State or Federal, or some valid treaty or law of Congress. Such objections must be made to the Legislature."State ex rel. Smith, Attorney General v. McClelland (1894),138 Ind. 395, 399, 37 N.E. 799. There should be some stability and symmetry to the law, and precedents based on sound existing reasons should be respected.10 The judgment of the trial court should be affirmed.
NOTE. — Dissenting opinion reported in 88 N.E.2d 150.
1 Art. XXX. Part the First-Constitution of Massachusetts.
2 The remainder of said Article is as follows: "Provided, That in time of war, foreign invasion, or other great public calamity, on petition of a majority of the property owners, in number and value, within the limits of such corporation, the public authorities, in their discretion, may incur obligations necessary for the public protection and defense, to such an amount as may be requested in such petition." [Amendment, in lieu of four old sections. Adopted March 14, 1881.]
3 The constitutional provision of the Illinois Constitution of 1870 states: "No county, city, township, school district, or other municipal corporation, shall be allowed to become indebted in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for state and county taxes, previous to the incurring of such indebtedness. . . ." Article IX, § 12.
4 The 1857 Constitution of Iowa, by § 3 of Article XI, provided: "No county, or other political or municipal corporation shall be allowed to become indebted in any manner, or for any purpose, to an amount, in the aggregate, exceeding five per centum on the value of the taxable property within such county or corporation — to be ascertained by the last State and county tax lists, previous to the incurring of such indebtedness."
In the following cases it was assumed that the Indiana constitutional provision was taken from the Iowa Constitution:City of Valparaiso v. Gardner (1884), 97 Ind. 1, 9, 10; Cityof LaPorte v. Gamewell Fire Alarm Telegraph Co. (1896),146 Ind. 466, 469, 45 N.E. 588. This was questioned in Voss v.Waterloo Water Co. (1904), 163 Ind. 69, 83, 71 N.E. 208, which noted that Illinois, Wisconsin, West Virginia and Missouri also had similar constitutional provisions. However, the wording of the Indiana Constitution is more definite and specific as to the effect of the excess debt.
5 Chapter 138 of the 1945 Acts was an attempt to provide a dual common school system not contemplated by § 1 of Article 8 of the constitution, which requires the legislature "to provide, by law, for a general and uniform system of Common Schools. . . ." High schools are a part of the common school system. Greathouse v. Board of School Commissioners of City of Indianapolis (1926), 198 Ind. 95, 151 N.E. 411.
6 A long term lease of a city hall with option to purchase does not violate Article 13. City of South Bend v. Reynolds (1900), 155 Ind. 70, 57 N.E. 706, 49 L.R.A. 396.
7 Section 48-8418, Burns' 1933 (1947 Supp.), (Acts 1945, ch. 200, § 18, p. 639; Acts 1947, ch. 323, § 10, p. 1288) provides: "Said bonds shall not in any respect be a corporate obligation or indebtedness of said city [Indianapolis], but shall be an indebtedness of said health and hospitals district as a special taxing district, and said bonds and interest thereon shall be payable only out of a special tax levied upon all the property of said health and hospitals district as in this act provided, and said bonds shall so recite such terms upon their face, together with the purpose for which they are issued. . . ."
8 "It is not unusual for the Legislatures of the several States in the Union, in the exercise of the general power of taxation, as well as in the power of local assessments, to create a special taxing district, without regard to municipal or political subdivisions of the States, and to levy a tax on all property within such district by a uniform rule, according to its value, for the purpose of aiding in the construction of public local improvements.
"Our laws providing for street improvements, for the construction of free gravel roads, for the construction of ditches and drains, and for aid in the construction of railroads, are examples of this kind of legislation.
"True, in most cases, such improvements are paid for by local assessments against real property, which, in theory, is benefited to an amount equal to the assessment. But it is by no means universally true that such improvements are paid for by assessments against real estate supposed to be benefited; but, on the contrary, they are often paid for by the assessment of a tax on all property found within the taxing district." Gilson v.Board of Commrs. of Rush County (1891), 128 Ind. 65, 70, 27 N.E. 235, 11 L.R.A. 835.
9 The borrowing authority of a Sanitary District, which included provisions for a sewage disposal plant, was held no violation of the debt limitation provisions of the Illinois constitution. People ex rel. Village of South Chicago Heights v. Bergin (1930), 340 Ill. 20, 172 N.E. 60.
10 "We fully endorse the language of the world's greatest commentator, when he says: `It is an established rule to abide by former precedents, where the same points come again in litigation: as well to keep the scales of justice even and steady, and not liable to waver with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments: he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.' 1 Black. Com., p. 69."Haskett et al. v. Maxey et al. (1893), 134 Ind. 182, 188, 33 N.E. 358. *Page 538