Concurring in Part and Dissenting in Part
Bobbitt, C. J.I concur in the result reached by the majority opinion, but dissent from that part of the opinion relating to the judgment of the Marion Circuit Court, entered on March 10, 1950, for the following reasons:
(1) In my opinion the proceeding in which the Conservancy District herein was created does not acquire its validity from the judgment of the Marion Circuit Court entered on March 10, 1950, pursuant to the provisions of the 1947 Conservancy Act, but such proceeding is validated by the Acts of 1957, ch. 308, §100.
The legislature had the power to create Conservancy Districts consisting of areas which were the subject of proceedings had under ch. 239 of the Acts of 1947, *529within its constitutional limitations, as provided by §100 of ch. 308, supra.
(2) It is not necessary to a decision of the case at bar to determine the validity and effect of the judgment of the Marion Circuit Court entered on March 10, 1950, establishing the “Ben Davis Conservancy District” pursuant to the provisions of the 1947 Conservancy Act.
(3) If it were necessary to pass upon the validity of such judgment, the case of Oviatt v. Behme (1958), 238 Ind. 69, 147 N. E. 2d 897, and other authorities relied upon by the majority, lend no support to dicta in the majority opinion which would legalize the establishment of the Conservancy District herein upon the ground that no appeal was taken from the order of the Marion Circuit Court establishing such District under the 1947 Act.
In footnote 10 in State, P. R. R. Co. et al. v. Iroq. Cons. Dist. Ct. et al. (1956), 235 Ind. 353, 367, 133 N. E. 2d 848, we mentioned that two issues of bonds had already been sold to the public by the directors of the Conservancy Districts created and established under the 1947 law. However, we there said, “The question of the validity of these bonds is not an issue in this case, nor do we attempt to incorporate it into those here presented.”
The bonds in those two proceedings, if valid, acquired their legality not because no appeal was taken from the judgments establishing the Conservancy District which had sold the bonds, but from the fact that the directors in each of such Districts were de facto officers whose acts were valid in respect to the public whom they represented and to third persons — the purchasers of the bonds — with whom they dealt officially. Parker et al. v. The State ex rel. Powell (1892), 133 Ind. 178, 200, 32 N. E. 836, 18 L. R. A. 567; Felker v. *530Caldwell (1919), 188 Ind. 364, 371, 123 N. E. 794; City of Michigan City v. Brossman (1938), 105 Ind. App. 259, 11 N. E. 2d. 538. The above cases do hot attempt to validate an unconstitutional Act because no appeal was taken from the judgments-in the trial courts. Nor do they do-violence to the general rule, that-.ah unconstitutional Act is -void ab initio. See: State ex rel. Beaman v. C. Ct. Pike Co.; Gibson Co. (1951), 229 Ind. 190, 96 N. E. 2d and cases there cited.
The directors-appointed - under the March . 10-, 1950, order of the Marion Circuit Court sold no bonds -before the 1947 Act-was declared unconstitutional.- If-the 1957 Act had not- been passed, could these directors have proceeded-to-sell-bonds after, the Act under .which they were appointed was declared unconstitutional,..simply because no appeal was taken from the order appointing them? The question.furnishes its own answer.,,.
It seems crystal clear to me that the only .source of the legal existence of- the Conservancy District, herein is §§3 and-100 of ch. 308 of the Acts of 1957.
(4) .What- the petitioners are seeking is the validation- of the proceedings which they instituted under the provisions of the 1957 Act. The judgment of the-Marion Circuit Court entered on March 10, 1950,could not under any theory of law accomplish this purpose. ••
Not only was no question raised pertaining to the 1950 judgment of the Marion Circuit Court,- but both parties specifically recognized that the sole question here presented is the validity of the proceedings, in the Marion Circuit Court under the provisions of: the 1957 Act. ■
Appellant recognizes this fact at pages '.'36 and 37 of his brief, and I quote:
“The Appellee takes the position that the Marion Circuit Court in finding that the Ben Davis' Con*531servancy .District was created in accordance ■ with Chapter 308 of the Acts of the Indiana General Assembly of 1957. (Tr. p. 30) and in approving the final:-plan (Tr. p. 56) and in approving the . appraisers’ report (Tr. p. 53) by implication • found the.T957 Conservancy Act constitutional; that the' time.'for appeal from these actions having passed, the .issue of constitutionality could not be raised in-=.this .action: The Appellee, cited as authority State ex rel. Piel v. Arkansas Construction Co. (1929), 201 Ind. 259, 167 N. E. 526. The position of Appellee was based upon the principle of.law. fqund -in that case, and stated on page 263 thereof, as'follows:.
.“.‘It is true that where a statute is unconstitutional if is as though the statute never existed, but where a court of competent jurisdiction before the statute has been effectively declared' unconstitutional, has rendered a judgment w-hich'ds- not -ap-’ pealed from, that judgment is binding, upon the principle which fixes the eonclusiveness of a judgment. “Where a statute conferring jurisdiction is held unconstitutional, such decision will have no retroactive effect . . . and where proceedings have been regularly had under the law as it existed before such decision they will not be disturbed.” ’
“Ah examination of the above quotation will indicate four (4) reasons for the fáilure of the quoted principle of law to .apply to the present case: ■
-■■“l. - The Appellant has not requested in his Petition that the order of the Court have a retro- ■ active effect.
“2;' The issue of unconstitutionally of the 1957 Act has never been raised and decided by the lower court. " •
“3. The attack upon the constitutionality of the 1957 Act is a direct attack and not a collateral attack--upon any previous decision of -the lower Court.”
That the constitutionality of the 1957 Act is -the sole and only question here presented is recognized by ap-pellee at page 31 of its brief, and I quote:.
*532“The Marion Circuit Court by an order of the 28th day of May, 1957, found the Ben Davis Conservancy District to be an area established in accordance with Chapter 308 of the Acts of the Indiana General Assembly of 1957. The Court in the same entry found the appointment of the Directors of the District, the designation of the principal place of business, the appointment of appraisers and the filing of the appraiser’s reports to be valid acts.
“The validity of these acts rests upon the following :
“1. The Constitutionality of Chapter 308 of Acts of the Indiana General Assembly of 1957.
“2. The conformance of the Acts and the recognition of the Ben Davis Conservancy District with Chapter 808 of the 1957 Acts.”
Note.—Reported in 153 N. E. 2d 125.