Dissenting Opinion.
Achor, C. J.— In my opinion neither the parties nor this court in its majority opinion considered the really significant grounds upon which the statutes here placed in controversy [ch. 144 of the Acts of 1919, as amended by ch. 279 of the Acts of 1961, and ch. 397 of the Acts of 1963] would necessarily be considered unconstitutional if the issues were presented.
*473This circumstance poses a serious question. Shall this court ignore the fact that appellant has failed to present these constitutional defects and hand down an opinion which presumptively sustains the constitutionality of the acts, or is there an obligation, under all the circumstances of this case, to recognize these constitutional deficiencies and remand the case to the trial court for a determination based upon these further considerations ?
It is my opinion that, for the reasons hereafter stated, when considered together, this latter course of action is appropriate.
I. It seems apparent that this was a “friendly action” in which there was not a complete adversity of interest. The following facts which appear of record lead to this conclusion.
1. The plaintiff-appellant was a non-urban resident of Marion County, and, therefore, although she may have legally represented “all others similarly situated,” as stated in her complaint, she did not in all respects represent the residents of the cities and towns in Marion County outside of the city of Indianapolis, who, in my opinion, have the greater cause to challenge the constitutionality of the act.
2. The appellant gave only partial consideration to the major grounds for challenging the constitutionality of the act in her brief, and gave no consideration to other grounds which might have been asserted.
3. The appellant did not file a reply brief to controvert the contentions asserted by appellees’ brief.
4. Neither has appellant filed a petition for re*474hearing,1 even though the majority opinion expressed the views of only three of the five members of this court.
II. This is not merely a controversy between private. parties. Rather, the action is filed in the name of a single person as a class action. Thus it purports to present a valid and bona fide case on behalf of hundreds of thousands of people who presumably become bound by the judgment entered therein. Thus we here have a case of great public interest.
Admittedly amicable actions are generally to be encouraged, but “An amicable action in the sense in which these words are used . . . presupposes that there is a real dispute between the parties. ...” 1 Anderson, Actions for Declaratory Judgments (2nd ed. 1951) §104, at 169. 1 Freeman on Judgments (5th ed. 1925) §511 at 1101 states:
“ . . . And it has been held that the judgment in a ‘friendly’ mandamus suit by certain taxpayers and officers against town officers to compel the issuance of bonds is not conclusive upon taxpayers not parties thereto. . . .” [Citing People ex rel Childress v. Illinois Cent. R. Co. (1921), 298 Ill. 516, 131 N. E. 624.]
In the case of Illinois Cent. R. Co., supra, the court stated:
“ ‘While it is proper and just that even the rights of the public . . . should be concluded by one fair litigation, in which the matters involved were faithfully presented and considered, it should be *475emphasised that the litigation must be bona fide, fair and honest from the beginning to the end. . . . ’” [298 Ill. 516, 518-19, 131 N. E. at 625 (1921), portions of the court’s quotation from Lindsay v. Allen (1904), 112 Tenn. 637, 82 S. W. 171.]
In what manner are the statutes in controversy violative of the constitutions of the State of Indiana and of the United States? The majority opinion of this court does not consider the fact that, under the statutes in question, the residents of the several municipal corporations within Marion County would be obliged to pay taxes for the operation of the enlarged city of Indianapolis park system; whereas, the residents of Indianapolis were not obligated to pay taxes for the separate park systems of the other several municipal corporations in the county.
Because of this very apparent unequal treatment which the statute would cause to be imposed upon the residents of these other cities and towns, which issue was not considered by the parties or in the majority opinion, I am of the opinion that the statute is violative of Art. 1, §23 of the Indiana Constitution2 and the 14th Amendment to the U. S. Constitution.3
Furthermore, neither the parties nor this court gave consideration to the fact that statutes providing for the city of Indianapolis-Marion County park system purported to establish a taxing and bonding authority *476which overlaps, and is in addition to, the park systems of the other municipal corporations in the county which are also authorized to tax and issue bonds, for the operation of their municipal park systems. This court has on two separate occasions been asked to rule on the validity of such statutes, and in each instance this court has held them to be in violation of the constitutional limitation upon bonded indebtedness as contained in Art. 13, §1 of the Indiana Constitution.4 Cerajewski v. McVey (1947), 225 Ind. 67, 72 N. E. 2d 650; Rappaport v. Dept. of Public Health (1949), 227 Ind. 508, 87 N. E. 2d 77. These are landmark cases which have been cited and relied upon in nearly every case wherein the constitutionality of a newly created taxing and bonding authority has been established.5 The failure of appellant to cite and rely upon these cases, which are directly in point, can be explained only in the light of the amicable character of this action.
The acts of the legislature creating new taxing and bonding authorities as devices to avoid the above constitutional debt limitation, the prior decisions of this court construing such acts, and the decision of this court in the instant case, present an interesting commentary.
*477Device One-. For the purpose of avoiding this constitutional prohibition, the legislature, with the approval of this court, has created many new municipal corporations, which have been authorized to perform a governmental function which had previously been performed by a then existing municipal corporation. Since there was no prohibition in the constitution against the creation of new municipal corporations each with taxing and bonding authority, this device provided a ready vehicle by which to avoid the constitutional limitation upon the bonded indebtedness of a municipal corporation, even though the tax burden and bonding authority upon the people within the municipality was increased with the creation of each such new corporation. Thus, school corporations, hospital corporations, library corporations, public building corporations, and others, were created, each with separate taxing and bonding authority.
However, the characteristic of all such corporations was that, in the geographical area over which they had control, each was exclusive in the performance of the particular function for which it was created. As previously noted, this distinguishing aspect of .such corporations, as compared with the park system with which we are here concerned, was not presented in appellant’s brief, nor was it considered in the majority opinion.
Device Two: The legislature has also authorized the creation of many “boards,” “commissions,” “departments,” and “authorities,” within the corporation structure of a single existing municipal corporation, and invested each such agency with authority to perform one of the governmental functions of a municipal corporation, and authorized each to separately issue bonds and levy taxes.
*478This court, with dubious logic and remarkable legal dexterity, has upheld the validity of such statutes. See: Archer, Jr., etc. et al. v. City of Indpls., etc. et al. (1954), 233 Ind. 640, 122 N. E. 2d 607, and cases cited therein. The evil of this practice has been compounded by the fact that under it the legislature has created a multiplicity of taxing and bonding authorities which perform segments of what was formerly considered a single governmental function. Thus, it follows that within a single city the “street department” could be authorized separately to tax and issue bonds. Furthermore, that department, performing a single function of government within a municipality, could be subdivided into subsidiary “authorities,” with each assigned a segment of the function of providing streets and thoroughfares, and each authorized to tax and issue bonds.
Personally, I find no rationalization in support of these additional taxing and bonding authorities within the structure of a single municipal corporation. To do so is comparable to an attempt to defend a man charged with forgery on the ground that the offense was not really committed by him, but only by thumb and forefinger of his right hand. Even the Bible has something to say about all members of the same body being one (I. Cor. 12:14-20); yet for the purpose of imposing taxes and additional bonded indebtedness within a single municipal corporation we have said they are not one.
I do not recommend that we disturb the existing implementing taxing authorities, the constitutionality of whose existence has been considered and approved by this court, however, I am strongly of the opinion that the legislature should exercise great caution as to any further extension of the practice.
*479Device Three: We are now asked to extend the above practice into new and additional areas of municipal law by authorizing the creation of additional “districts” which perform the same governmental function, with overlapping administrative taxing and bonding authority, within the same geographical area wherein the same function is being performed by other municipal corporations within the ascribed area.
In this case we are asked to approve a law which purports to authorize the park department of the city of Indianapolis, in conjunction with a park district consisting all of Marion County, to operate parks throughout Marion County, and to levy taxes and issue bonds for the operation of such parks. In my opinion, the act which purports to establish this creature is unconstitutional, for two reasons:
First, it is not a municipal corporation in itself, authorized under the constitution to separately levy taxes and issue bonds of indebtedness. Rather, it is merely an implementing authority within the framework of existing governmental authority. Secondly, because as a municipal body, it does not have exclusive authority or responsibility for the operation of parks within the area for which it is established. If put into operation the result will be that city-county park district has authority to operate parks throughout the county, including the several cities and towns within the county, which have the same authority within their several distinct corporate boundaries. Thus, a situation would exist where the several cities and towns in Marion County [other than Indianapolis] would continue to operate their separate parks and to levy taxes and issue bonds for their operation; whereas, the newly created Indianapolis-Marion County park district might exercise the same authority and tax and issue bonds there*480for. The result would be that the taxpayers of the several cities and towns in Marion County [other than Indianapolis] would be burdened with a double taxing and bonding authority, for the performance of a single governmental function — the operation of public parks by municipal government. For this additional reason, I believe the law to be unconstitutional, in that it purports to authorize double taxation and bonding authority where such authority is not authorized. To attempt to do so is to pervert the fundamental law of the state. This court so held in the cases of Cerajewski v. McVey and Rappaport v. Dept. of Public Health, p. 4, supra.
This practice of making end runs around and through the constitution, with special authority from the legislature for such maneuver on the basis of expediency, should be stopped. It is a mockery to the basic concept of constitutional government which assures us government by law and not by men. If municipal corporations require additional bonding authority for the purpose of carrying out the necessary functions of government, as may be true in this case, they can and should acquire this authority by a direct and clearly stated amendment to the constitution.
In the meantime, in my opinion, it is the responsibility, of this court, as the guardian of the constitution, to hold the line by saying, we have permitted you to go this far, but hence forth in all instances where the practice has not been approved it is and will be condemned.
Note. — Reported in 198 N. E. 2d 755. Dissenting Opinion reported 199 N. E. 2d 699.
. Had a petition for rehearing been filed, and the same denied, this opinion would ordinarily have been addressed to the denial of such petition for rehearing. However, under present circumstances, this opinion is written belatedly, in support of my dissent — my intention to do so having been originally indicated.
. “The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.” Art. 1, §23 Indiana Constitution.
. “. . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Sec. 1, 14th Amendment to the U. S. Constitution.
. “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 by such corporations,, shall be void: Provided, That in time of war, ... .” Art. 13, §1, Indiana Constitution.
. Datisman etc. v. Gary Public Library (1960), 241 Ind. 83, 170 N. E. 2d 55; Book v. Board of Flood Control Comm’rs etc. (1959), 239 Ind. 160, 156 N. E. 2d 87; Martin v. Ben Davis Conservancy District (1958), 238 Ind. 502, 153 N. E. 2d 125; Protsman v. Jefferson-Craig Consolidated School Corp. (1953), 231 Ind. 527, 109 N. E. 2d 889; Department of Public Sanitation, City of Hammond v. Solan (1951), 229 Ind. 228, 97 N. E. 2d 495.