Municipal City of South Bend v. Kimsey

ATTORNEY FOR APPELLANT

Aladean M. DeRose
South Bend, Indiana


ATTORNEYS FOR APPELLEES

Don G. Blackmond
Lynn M. Butcher
South Bend, Indiana
__________________________________________________________________


                                   IN THE



                          SUPREME COURT OF INDIANA

__________________________________________________________________

THE MUNICIPAL CITY OF        )
SOUTH BEND, INDIANA,         )
                                  )
      Appellant (Defendant Below), )
                                  )
            v.                    )
                                  )     Indiana Supreme Court
JOHN KIMSEY and DENISE KIMSEY;    )     Cause No. 71S03-0203-CV-183
BRADLEY HALL and CAROLE HALL;)
TERRY TRETHEWEY and CHERYL   )    Indiana Court of Appeals
TRETHEWEY; together with the      )     Cause No. 71A03-0101-CV-13
remaining property owners who are )
signatories hereto and who are too           )
numerous to be included in the caption  )
of this remonstrance complaint,         )
                                  )
      Appellees (Plaintiffs Below).     )
__________________________________________________________________

                  APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                   The Honorable William C. Whitman, Judge
                         Cause No. 71D03-9609-CP-909
__________________________________________________________________


                           ON PETITION TO TRANSFER

__________________________________________________________________

                              January 15, 2003
BOEHM, Justice.
      Article IV, Section 23 of the Indiana Constitution  prohibits  special
legislation where a general law can be made applicable.  We hold  that  this
provision is violated by a 1993 law applicable only  to  St.  Joseph  County
and permitting a majority of landowners in an affected area of  that  county
to block annexation by a municipality.

                      Factual and Procedural Background


      Until 1993, if a municipality sought to annex adjacent  territory,  it
needed to satisfy only the requirements of Indiana Code  section  36-4-3-13.
That section, which remains the law today, set forth a  list  of  conditions
ranging from the population and geographic makeup of the area to be  annexed
to the details that must be included  in  a  fiscal  plan  prepared  by  the
annexing municipality.  If these requirements  were  met,  opposition  by  a
given percentage of landowners was not enough to block annexation.
      In 1993, the Indiana General Assembly added a new subsection (g)[1] to
section 13.  That subsection applied only  to  counties  with  a  population
between 200,000 and 300,000, and granted the right to challenge  and  defeat
annexation if, inter alia, a majority of  the  landowners  in  the  affected
area opposed it.[2]  Ind. Code § 36-4-3-13(g)  (2002).   At  the  time  this
provision was enacted, and ever since then,  only  St.  Joseph  County  fell
within these population parameters.  As a result, at the  time  relevant  to
this lawsuit, only in St. Joseph County could a  given  number  of  affected
landowners block an annexation simply  by  opposing  it.   In  1999,  a  new
subsection was added affecting every county except St. Joseph and  requiring
opposition of sixty-five percent, not just  a  simple  majority,  to  defeat
annexation.  The net result is that today the  statute  requires  opposition
of sixty-five percent of the  affected  landowners  to  defeat  a  municipal
annexation in ninety-one of our  ninety-two  counties,  but  in  St.  Joseph
County a simple majority is sufficient.[3]
      On July 22, 1996, the City of South Bend, acting  through  its  Common
Council,  adopted  an  ordinance  providing  for  the  annexation   of   the
“Copperfield Annexation  Area”  in  St.  Joseph  County.   Copperfield  area
residents filed a remonstrance and presented a  petition  in  opposition  to
annexation  purporting  to  contain  the  signatures  of   a   majority   of
Copperfield landowners.  After the trial court denied the City’s  motion  to
dismiss  the  remonstrance,  the  City  filed  a  counterclaim   seeking   a
declaratory  judgment  that  subsection  (g)  was  unconstitutional  special
legislation  in  violation  of  Article  IV,  Section  23  of  the   Indiana
Constitution.  That section provides, in relevant part:  “[I]n  all  .  .  .
cases where a general law can be made applicable, all laws shall be  general
. . . .”
      The trial court denied the City’s motion, holding that subsection  (g)
was constitutional “general” legislation concerning  “[t]he  loss  of  rural
land” and “[a]rguably . . . reflects a political  decision  by  the  General
Assembly that urbanization in this state should be restricted and that:  (a)
counties  of  more  than  300,000  people  have  already  lost  their  rural
character and (b) that counties of less  than  200,000  people  are  not  at
risk.”   Because  the  trial  court  viewed  subsection  (g)  as   “general”
legislation as that term appears in Article  IV,  it  did  not  address  the
question whether, if this were a “special” law, a general law “can  be  made
applicable.”
      The City subsequently filed a unilateral “stipulation  of  facts,”  to
which the remonstrators did not object, and the  trial  court  proceeded  to
address the merits of the case without trial.  Having  determined  that  the
remonstrators’  petition  was  sufficient,  the  trial  court  blocked   the
annexation.  The Court of Appeals affirmed the trial court.  City  of  South
Bend v. Kimsey, 751 N.E.2d 805,  812  (Ind.  Ct.  App.  2001).   This  Court
granted transfer.

               I.  Origins of the Ban on “Special Legislation”


      Limits on “special legislation” are found, “in some form or other,  in
most state constitutions.”  Osborne M. Reynolds, Local Government Law  85-86
(1982).  Their purpose is  “to  prevent  state  legislatures  from  granting
preferences to some  local  units  or  areas  within  the  state,  and  thus
creating an irregular system of laws, lacking state-wide  uniformity.”   Id.
at 86.  This “irregularity” is not in itself the only  perceived  evil.   In
the view of  the  proponents  of  these  provisions,  if  special  laws  are
permitted, the result is perceived to be “a situation in which it  [becomes]
customary for members of the legislature to vote  for  the  local  bills  of
others in return for comparable cooperation  from  them  (a  practice  often
termed  ‘logrolling’).”   Id.   In  simple  terms,   these   anti-logrolling
provisions are grounded in the view that as long as a law affects  only  one
small area of the state, voters in  most  areas  will  be  ignorant  of  and
indifferent to it.  As a result, many  legislators  will  be  tempted,  some
would say expected, to support the proposals of  the  legislators  from  the
affected area, even if they deem the proposal to be  bad  policy  that  they
could not support if it affected their own constituents.[4]
      In fact, the drafters of the 1851  Indiana  Constitution  saw  one  of
their principal  challenges  to  be  reining  in  a  “large  and  constantly
increasing number” of special laws.  At  the  Constitutional  Debates,  John
Pettit, of Tippecanoe County, described special legislation  as  “the  whole
error—the whole incongruity—the whole oppression of our law, and almost  the
whole necessity of calling this Convention.”  2 Reports of the  Debates  and
Proceedings of the Convention for the Revision of the  Constitution  of  the
State of Indiana 1771 (1850).   Others  complained  of  the  diversion  from
matters of statewide concern generated  by  an  excessive  volume  of  local
legislation.  Governor Paris Dunning addressed the General Assembly on  this
note:
           Special legislation is a growing evil which has  attracted  much
      attention amongst the masses of the people, and  to  which  much  well
      founded opposition exists in the public  mind.   Indeed,  it  has  for
      years past engaged full three-fourths  of  the  time  of  the  General
      Assembly, to the exclusion (from  their  due  consideration)  of  many
      other questions of great importance to the people of the State.

1  Charles  Kettleborough,  Constitution  Making  in   Indiana   195   (Ind.
Historical Bureau  ed.  1971)  (1916).   The  drafters  responded  to  these
concerns by adopting Sections 22 and 23 of Article IV.  Article IV,  Section
22 prohibits the General Assembly from passing  local  or  special  laws  to
accomplish certain enumerated results, none of which  is  relevant  here.[5]
In  addition  to  Section  22’s  prohibition  of  “special”  legislation  on
specified topics, Article  IV,  Section  23  added  a  residual  demand  for
“general” legislation:  “In  all  the  cases  enumerated  in  the  preceding
section, and in all other cases where a general law can be made  applicable,
all laws shall be general, and of uniform operation throughout the State.”
            II.  Earlier Judicial Review of “Special” Legislation

      Although the text of Section 23 has remained unaltered  since  it  was
placed in the Constitution in 1851, it has been  subject  to  a  variety  of
interpretations over the intervening 151 years.  It  was  initially  thought
that Article IV  presented  no  justiciable  issue.   This  view  was  first
articulated in Gentile v. State, 29 Ind. 409 (1868), and  continued  through
the nineteenth century and into the early part of the  twentieth.   As  this
Court put it in Bd. of Comm’rs v. Fetter, 193 Ind. 288, 296, 139  N.E.  451,
454 (1923):
           Upon the authority of numerous decided cases  from  this  court,
      and  from  the  courts  of  other  states  which  have  constitutional
      limitations akin to the one here in question, the rule is firmly fixed
      that the question whether or not a general law can be made applicable,
      or that a  special  law  is  in  violation  of  said  section  of  the
      constitution  because  a  general  law  can  be  made  applicable,  is
      necessarily one of legislative discretion, and  not  one  of  judicial
      determination.

      In Groves v. Bd. of Comm’rs, 209 Ind. 371, 199 N.E. 137  (1936),  this
Court moved  from  the  view  that  Article  IV,  Section  23  presented  no
justiciable issue to  the  doctrine  that  statutes  general  in  form  were
“general” for purposes of Article IV  even  if  they  applied  in  practical
terms to only one  or  a  few  counties.   The  Court  addressed  a  statute
applying only to counties “having a population of not less than 250,000  nor
more than 400,000, and having three or more cities, each with  a  population
of 50,000 or more.” Id. at 375, 199 N.E. at  139.   Lake  County  alone  met
those criteria.  The Court held: “If the act is broad  enough  to  apply  to
all counties of the  state  under  the  same  circumstances,  it  cannot  be
condemned.”  Id. at 376, 199 N.E. at 140.  Whatever the  realistic  prospect
that another county might ever meet these parameters and also contain  three
cities, each of 50,000 population, there remains at  least  the  theoretical
prospect that smaller counties could over time grow to meet these  criteria.
 Similarly, Lake County might lose one of its three  cities  of  50,000,  or
fall outside the 250,000-to-400,000 bracket.   Based  on  these  logical  if
practically  remote  possibilities,  this  Court  held  that  “[u]nder  such
circumstances, the law is general  in  its  application  and  not  local  or
special,” id., and inquired no further.
      A variation of complete  deference  to  classification  by  population
upheld several  statutes  against  Article  IV  attack  on  the  basis  that
singling out the affected areas was “reasonable.”  In  Long  v.  State,  175
Ind. 17, 20, 92 N.E. 653, 654 (1910), this Court stated, “Many of our  penal
statutes have exclusive application to special localities  or  objects,  and
are nevertheless general and unquestionably valid, because  they  rest  upon
an inherent and substantial basis of classification.”  Similarly,  in  Kelly
v. Finney, 207 Ind. 557, 579, 194 N.E. 157, 166  (1935),  this  Court  cited
Long for the proposition that “[t]he fact that a statute  exempts  from  its
operation certain classes does not render the act local or special  as  long
as the classification is not unreasonable  or  arbitrary.”   Reflecting  the
similarity of equal protection doctrine to  this  line  of  reasoning  under
Article IV, Section 23, the Kelly Court also cited  Continental  Baking  Co.
v. Woodring, 286 U.S. 352 (1932), and Schwartzman Serv., Inc. v.  Stahl,  60
F.2d 1034 (W.D. Mo. 1932), for that proposition.  Neither of  these  federal
court decisions addressed Article IV, or  indeed  any  state  constitutional
provision.  Continental Baking dealt with state  regulations  on  commercial
highway hauling, and  involved  only  constitutional  challenges  under  the
federal Due  Process,  Equal  Protection,  Privileges  and  Immunities,  and
Commerce  Clauses.   286   U.S.   at   357.    Schwartzman   addressed   the
constitutionality of similar regulations, and although it  did  not  specify
the constitutional provisions on which it based its decision, it  presumably
was also decided under federal constitutional law.[6]
      The approach of Long and Kelly also appeared in Evansville-Vanderburgh
Levee Auth. Dist. v. Kamp, 240 Ind. 659, 168  N.E.2d  208  (1960),  where  a
statute  allowed  the  creation  of  a  joint  city-county  levee  authority
district in any city within a county having  a  population  between  160,000
and 180,000.  At the time the statute was enacted, only  Vanderburgh  County
fell within this population bracket.  A Vanderburgh  County  taxpayer  filed
suit contending, inter alia, that the statute was  unconstitutional  special
legislation.  This Court upheld the statute,  stating,  “[T]he  presence  of
[some arbitrariness due to the use of population classifications]  does  not
make the legislation  special  if  there  still  remains  some  relationship
between  such  classification  and  the  objective  of  the  law  which  the
legislature could have considered to exist.”  Id.  at  663,  168  N.E.2d  at
210.
      Finally, adopting the same view, Dortch v. Lugar, 255  Ind.  545,  266
N.E.2d 25 (1971), relied on Kamp and Kelly in upholding the  Unigov  statute
for Marion County.  That statute  reorganized  local  municipal  and  county
government in all counties containing  “a  city  of  the  first  class”  and
included a stated purpose  “to  enable  the  consolidation  of  governmental
functions in densely populated metropolitan communities.”  Id. at  550,  266
N.E.2d at 30.  Unigov, then and now, applied only to  Marion  County,  which
contains Indianapolis, the  only  Indiana  city  of  the  first  class.   In
upholding the statute, this Court stated, “As a general proposition  .  .  .
it is sufficient for purposes of §§ 22 and 23 of Art.  4  [i]f  .  .  .  the
classification is reasonable and naturally inherent in the subject  matter.”
 Id. at 552-53, 266 N.E.2d at 31.  Although these cases were  consistent  in
their view that reasonableness of the classification validated a  law  under
Article IV, none of these holdings addressed the history behind Article  IV,
Section 23.  More importantly, none explained  at  any  length  whether  the
reasonableness of the classification is a touchstone in determining  whether
a law is general or special, or whether it  otherwise  preserved  a  statute
attacked under Article IV.
      The  “reasonableness”  approach  to  Article  IV  issues  is  strongly
reminiscent of concepts derived from the “equal privileges  and  immunities”
clause  of  Article  I,  unfortunately  also  numbered  Section  23.    That
provision of Article I states, “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.”  To comply with  that
section, legislation that singles out one person  or  class  of  persons  to
receive a privilege or immunity not equally provided  to  others  must  meet
two requirements.  First, it  “must  be  based  upon  distinctive,  inherent
characteristics which rationally distinguish the  unequally  treated  class,
and the disparate treatment accorded by the legislation must  be  reasonably
related to  such  distinguishing  characteristics.”   Collins  v.  Day,  644
N.E.2d 72, 79 (Ind. 1994).  Second, “any privileged classification  must  be
open to any and all persons who share  the  inherent  characteristics  which
distinguish and justify  the  classification,  with  the  special  treatment
accorded to any particular classification extended equally to all  persons.”
 Id.  Although Collins v. Day reformulated the Equal  Privileges  Clause  in
1994, the Collins test is reminiscent of many earlier  decisions  under  the
Special Legislation Clause, including Long, Kelly, and Dortch.
      Under this line of cases, and in light of Collins’ restatement of  the
Equal Privileges Clause test, there seemed to be little  difference  between
Article IV  special  legislation  and  Article  I  unequal  privileges.   So
viewed, the Article IV restraint on “special laws”  becomes  the  reasonable
classification focus imposed by Article I.  In other words,  for  a  special
law  to  be  imposed,  it   must   be   reasonably   related   to   inherent
characteristics of the territory in which it is applied, and  apply  equally
to those who share those characteristics.  Thus,  legislation  that  applies
in less than the entire state would pass  both  Article  I  and  Article  IV
muster by the same standard.
      In the meantime, however, in 1986  this  Court  returned  to  complete
deference to population ranges as ipso  facto  “general”  statutes.   In  N.
Twp. Advisory Bd. v. Mamala, 490 N.E.2d 725,  726  (Ind.  1986),  the  Court
upheld a statute affecting the operation of parks located “in each  township
having a population of not less than one hundred eighty  thousand  (180,000)
nor more than two hundred four thousand  (204,000)  that  is  located  in  a
county having more than two second class cities.”  Only one township in  the
state fell within that classification.  This Court held the law was  general
because the statute did  not  “contain  any  provision  which  would  either
preclude other townships from eventually qualifying  under  the  statute  or
would prevent North Township from falling  outside  the  parameters  of  the
statute.”  Id.  Only the most generous  deference  to  legislative  judgment
could uphold  this  quite  particularized  legislation,  which  presented  a
classic example of  the  perceived  local  legislation  that  gave  rise  to
Article IV.  Indeed, virtually any geographic area can be  uniquely  defined
with  such  very  specific  population  parameters  in  concert  with  other
characteristics.  Mamala thus represented in practical  terms  a  return  to
the view that Article IV presents no justiciable issue at all.

            III.  Judicial Review of “Special” Legislation Today


      A.  Identifying General or Special Legislation
      It is now clear that  although  the  reasonableness  of  a  population
classification remains relevant under Article I, neither the  “per  se”  nor
“reasonableness”  view  of  population  categories   is   determinative   of
constitutionality under  Article  IV.   Rather,  the  text  of  Article  IV,
Section 23 is controlling here.  The terms “general law” and  “special  law”
have widely understood meanings.  A statute is “general” if it  applies  “to
all persons or places of a specified class throughout the  state.”   Black’s
Law Dictionary 890 (7th ed. 1999).  A statute is “special” if  it  “pertains
to and affects a particular case, person, place, or  thing,  as  opposed  to
the general public.”  Id.  Most recently, in Williams v. State,  724  N.E.2d
1070, 1085 (Ind. 2000), this Court reiterated the  view  that  the  text  of
Article IV, Section 23 requires a  two-step  test  that  addresses  concerns
unique to that section: “In analyzing a law under [Article IV,] Section  23,
we must first determine whether the law is general or special.  If  the  law
is  general,  we  must  then  determine  whether  it  is  applied  generally
throughout the State.  If it is  special,  we  must  decide  whether  it  is
constitutionally permissible.”
      Williams followed Ind. Gaming Comm’n v. Moseley, 643 N.E.2d 296,  299-
301 (Ind. 1994), and State v. Hoovler, 668 N.E.2d 1229 (Ind. 1996), on  this
point.[7]  Williams found that the specific needs  of  Lake  County—a  large
county with a larger case  docket—supported  special  legislation  providing
for the appointment of magistrates only  in  Lake  County  courts.   Moseley
upheld a statute that applied only to counties eligible  to  vote  to  adopt
riverboat  gambling,  and  provided  for  city-by-city  voting  in  counties
bordering Lake Michigan  with  more  than  400,000  people,  i.e.,  in  Lake
County, while other counties eligible to adopt dockside gambling did  so  on
a countywide basis.  643 N.E.2d at 301.  This  Court  found  this  different
treatment for Lake County to be justified:
      In Lake County, the whole of the waterfront is covered by  substantial
      cities, whose residents have the greatest interest in how the shore is
      used.  In  all  other  counties,  however,  the  shore  contains  both
      incorporated and unincorporated territory.  It thus seems sensible  to
      stage a vote of all persons in the county.

Id.
      In Hoovler, this Court followed Moseley and pierced the claim  that  a
population criteria based  statute  was  “general”  legislation,  but  again
nevertheless found the statute valid.  Hoovler dealt with the  legislature’s
attempt to help Tippecanoe County handle the  financial  burden  of  cleanup
costs at a “Superfund” landfill site.  668  N.E.2d  at  1234.   The  statute
permitted the county council of a  qualifying  county  to  impose  a  higher
county income tax rate than was permitted in other counties  in  the  state.
Only Tippecanoe County qualified under the legislation, but the statute  did
not identify  Tippecanoe  County  by  name.   Rather,  it  applied  only  to
counties “having a population of more than one hundred twenty-nine  thousand
(129,000) but less than one hundred thirty-thousand six hundred  (130,600).”
 Id. at 1231.
      Rather than validating this legislation on the ground that  population
categories  per  se  create  general  statutes,  this  Court  examined   the
“circumstances  surrounding  [the  Act],  including  language  in  the   Act
itself.”  Id.  at  1234.   The  Court  held  that  because  the  legislature
intended the statute  in  that  case  to  apply  exclusively  to  Tippecanoe
County, the statute was indeed “special”  legislation  governed  by  Article
IV.  Id. at 1235.  In reaching this conclusion, the  Court  pointed  to  the
narrow population range in the statute, the fact that Tippecanoe County  was
the only Indiana county with a Superfund site  for  which  local  government
entities were designated Potentially Responsible Parties  by  the  EPA,  and
the statute’s intent  to  provide  relief  to  Tippecanoe  County  from  its
potential Superfund liability, reflected in its requirement that the  county
council find that money is needed to “fund substance  removal  and  remedial
action.”  Id. at  1234-35.   All  of  these  factors  were  signs  that  the
legislature had indeed “enacted a special law authorizing Tippecanoe  County
to enact and administer a special tax rate increase  not  available  to  any
other county.”  Id. at 1235.
      B.  “Defining Characteristics” and “Justifying Characteristics”
      We agree with the view that a statute with a population category is  a
special law if it “is designed to operate upon or  benefit  only  particular
municipalities and thus is essentially no different than if the statute  had
identified the  particular  municipalities  by  name.”   City  of  Miami  v.
McGrath, 824 So.2d 143, 148 (Fla. 2002).   Moseley,  Hoovler,  and  Williams
clearly  implied  that  those  pieces  of  legislation   would   have   been
permissible under Article IV if they had identified  the  affected  counties
by name.  Indeed, Article IV issues will be  simplified  if  that  is  done,
accompanied  by  legislative  findings  as  to  the  facts  justifying   the
legislation’s limited territorial application.  Legislation applying by  its
terms to areas with identified characteristics would be equally  permissible
under Article IV.
      The statute in Hoovler defined the  class  of  counties  to  which  it
applied in terms of population.  The opinion  justified  the  classification
in terms of the presence  vel  non  of  a  county’s  exposure  to  Superfund
liability.  Moseley, on the other hand, addressed a statute  whose  defining
characteristics were in part those justifying the classification (bodies  of
water) and in part population parameters that only Lake  County  met.   Thus
its defining characteristics were only partially those  that  justified  the
classification, and, like Hoovler, judicial  notice  of  the  geography  and
municipalities in Lake County was necessary to justify  the  classification.
Finally,  in  Williams,  Lake  County  was  identified  by  name,  and   its
characteristics justifying the legislation were judicially noticed.
      In some other legislation that has been challenged under  Article  IV,
the characteristics defining the applicable counties  are  also  those  that
justify the legislation.  Thus, in Dortch, a city of the first  class  in  a
county was properly thought to justify countywide government.  This form  of
classification is more elegant because it avoids the  messiness  created  by
potential entrants  (new  Superfund  sites)  or  exits  (park  districts  in
counties growing out of population parameters)  over  time.   Despite  these
potential issues, Hoovler made  clear  that  a  defining  characteristic  (a
population category) that  is  theoretically  unrelated  to  the  justifying
characteristic (Superfund liability) is nevertheless permissible  if,  under
the facts as they are at the time  of  passage,  only  justified  areas  are
defined into the class.  This is defensible because the perceived  evils  of
special legislation in the absence  of  special  circumstances  are  largely
avoided if the affected area is indeed the only part of the state where  the
statute has practical effect.
      In sum, if there are characteristics of the locality that  distinguish
it for purposes of the  legislation,  and  the  legislation  identifies  the
locality, it is special legislation.  The  identification  of  the  locality
may be by name (“Tippecanoe County”), by the characteristic  that  justifies
special  legislation  (a   unique   Superfund   liability),   or   otherwise
(population parameters that include only the locality).
      C.  Determining Whether a General Law “Can Be Made Applicable”
      Moseley, Williams, and Hoovler, were not revolutionary in viewing  the
threshold issue as identifying a law as  special  or  general.   Gentile  v.
State, 29 Ind. 409 (1868), which was decided seventeen years  after  Article
IV was adopted, included some useful insight on that point:
      [Article IV, Section 23] was intended to prohibit the passage  of  any
      law applicable only to one or  more  counties,  or  other  territorial
      subdivisions of the State, where a general law  on  the  same  subject
      could be made which would properly apply to the entire state. . . . It
      is clearly implied by that section, and we know it to be true in fact,
      that in many cases local laws  are  necessary,  because  general  ones
      cannot, properly and justly, be  made  applicable.   There  are  cases
      where a law would be both proper and necessary in a given locality  or
      part of the state, where its subject is local, or  where,  from  local
      facts, it is rendered necessary; but which,  if  made  general,  would
      either  be  inoperative  in  portions  of  the  state,  or  from   its
      inapplicability to such portions, would be injurious and unjust.


Id. at 411-12.  As  Gentile  reveals,  legislation  must  be  classified  as
general or special before the focus turns to  whether  a  general  law  “can
apply,” i.e., whether there are inherent  characteristics  of  the  affected
locale that justify local legislation.
      Thus, the reasonableness of a classification does not  answer  whether
the law is general or special in the first place.  Nor  does  it  provide  a
complete answer  to  the  question  whether  a  general  law  “can  be  made
applicable,” although one branch of that inquiry may resemble an  Article  I
analysis.  A statute general in form “can be made  applicable”  only  if  it
does  not  violate   Article   I,   Section   23.    Thus,   if   population
classifications are arbitrary  or  unrelated  to  the  characteristics  that
define  the   class,   a   statute   general   in   form   is   nevertheless
unconstitutional as a violation of  Article  I.   This  can  be  true  under
Collins  either  because  there  is  no  defining  characteristic   of   the
classified area, or there is such a characteristic but  it  is  shared  with
areas not in the class.
      A  second  consideration  in  whether  a  general  law  “can  be  made
applicable” is whether in fact it is meaningful in a variety  of  places  or
whether relevant traits of the affected area are distinctive such  that  the
law’s application elsewhere has no effect.  This second consideration  turns
on whether “local facts” exist, not on whether those  facts  are  reasonably
related to the particular legislation that is actually imposed,  a  question
that is left to Article I.
      Article IV issues, though  distinct  from  Article  I  considerations,
remain closely related to them.  If special  legislation  passes  the  first
test of Collins, i.e., the legislation is reasonably  related  to  “inherent
characteristics” of the affected locale, and it also passes  the  second  by
applying  wherever  the  justifying  characteristics  are  found,  then  the
statute necessarily passes Article IV muster because the presence  of  those
“inherent characteristics” means a general law cannot “be made  applicable.”
 Otherwise stated, if the conditions the  law  addresses  are  found  in  at
least a variety of places throughout the state, a general law  can  be  made
applicable and is required by Article IV, and  special  legislation  is  not
permitted.  Applying these principles, assuming the facts  of  the  affected
area are distinct, Long, Dortch, and other cases relying on the  proposition
that Article IV, Section  23  challenges  are  resolved  by  addressing  the
reasonableness  of  the  classification  embodied   in   the   statute   are
nevertheless correct in their ultimate result.

           IV.  Applying Article IV, Section 23 to Subsection (g)


      A.  Subsection (g) is Special Legislation
      The decisions of the trial court and Court of  Appeals  in  this  case
reflected both the “reasonable classification” approach and  the  view  that
population classifications are  per  se  permissible  under  Article  IV  as
general  legislation.   As  both  courts  pointed  out,  any  county   could
theoretically move into the 200,000-to-300,000  person  population  category
defined by subsection (g), from above or below those points,  and  thus  the
statute, being “susceptible of uniform application  to  any  county  in  the
State  meeting  the  population  criteria,”  was   general,   not   special,
legislation.  Kimsey, 751 N.E.2d at  811-12.   The  Court  of  Appeals  also
stated:   “Notwithstanding   Section   23,   the   legislature   may    make
classifications of subjects of legislation, provided the  classification  is
reasonable and the statute operates equally on all within  the  class.   The
statute is then considered to be general.”  Id. at 810 (citations  omitted).
 As explained  in  Part  III,  these  considerations  are  relevant  if  not
controlling on the issue of whether “a general law can be made  applicable.”
  But  neither  of  these  points  addresses  the  threshold  issue  whether
subsection (g) is general or special under Moseley, Hoovler, and Williams.
      As  in  Hoovler,  the  circumstances  surrounding  the  enactment   of
subsection (g) leads to  the  conclusion  that  this  statute  is  “special”
legislation.  State v.  Hoovler,  668  N.E.2d  1229,  1234-35  (Ind.  1996).
Public Law No. 257 was introduced as amendatory legislation  in  1993  by  a
Representative from St. Joseph County, and sponsored  in  the  Senate  by  a
Senator whose district included both St. Joseph and Elkhart  Counties.   The
bill declared an emergency requiring immediate effect.  1993 Ind.  Acts  257
§ 4.  Because Section 3 of the bill applied only to  St.  Joseph  County  at
the time of its enactment and for  the  foreseeable  future,  and  immediate
effect was required, the legislature  necessarily  intended  it  to  address
some issue peculiar to St. Joseph County.  Thus the evidence is clear  that,
at the time it  was  enacted,  subsection  (g)’s  population  classification
served no purpose other than to identify St.  Joseph  County.   This  is  no
different than had the legislature simply named St.  Joseph  County  in  the
statute, as was the case in Williams, where the statute specifically  stated
that it governed the courts of Lake County.  Moreover, later amendments  did
not change the special status of St. Joseph  County.   In  Moseley,  it  was
apparent that the statute  at  issue  was  special  legislation  because  it
affected Lake County differently  from  other  counties  allowed  to  permit
dockside gambling,  and  also  rendered  most  Indiana  counties  unable  to
participate in dockside  gambling.   Ind.  Gaming  Comm’n  v.  Moseley,  643
N.E.2d 296, 301 (Ind. 1994).  Here, the singling out of  St.  Joseph  County
is just as severe.  Section 36-4-3-13 now requires the opposition of  sixty-
five percent of landowners to defeat annexation in  every  other  county  in
the State, but retains the  majority  requirement  for  St.  Joseph  County.
Ind. Code § 36-4-3-13(e) (2002).
      B.  Subsection (g) Addresses Conditions Where a  General  Law  Can  be
Made Applicable
      We agree with the Court  of  Appeals  that  the  statute  is  presumed
constitutional.  The Court of  Appeals  noted  the  general  principle  that
“[a]ny reasonable interpretation of a statute is sufficient if it  evokes  a
finding of constitutionality.”  751 N.E.2d at 812.  This doctrine calls  for
adopting one among multiple meanings of the statute if  that  interpretation
renders the legislation valid.  Here there  is  no  issue  as  to  what  the
subsection means.  More relevant is the point  that  the  challenging  party
must  negate  “every  conceivable  basis  which  might  have  supported  the
classification.”  Id. (quoting Am. Legion Post #113  v.  State,  656  N.E.2d
1190, 1192 (1995)).  This may be done by  presenting  evidence  establishing
the lack of distinct characteristics,  or,  as  in  Williams,  the  relevant
facts may be subject to judicial notice.
      In this case, several different explanations were offered  to  justify
the  subsection’s  application  only  in  counties  of  200,000  to  300,000
population.  But these reasons were all couched in terms of  characteristics
of St. Joseph County, not necessarily those possessed by a  county  of  this
population size.  They ranged from the need to preserve  rural  land  around
urban areas (South Bend), which the trial  court  “judicially  noticed,”  to
preventing competing cities (South Bend  and  Mishakwaka)  within  the  same
county from annexing each other’s land, which the Attorney General  advanced
in the trial court.  But none of these justifications are  inherent  in  the
population range and none  turn  on  facts  unique  to  St.  Joseph  County.
Preserving rural land near urban areas or  preventing  competing  annexation
by different municipalities may indeed be legitimate concerns, but there  is
no basis to conclude they are unique to St.  Joseph  County.   Although  the
trial court took judicial notice of the  fact  that  St.  Joseph  County  is
largely urban but contains significant rural areas,  the  same  is  true  of
Lake and Allen Counties.   Several  counties  have  multiple  municipalities
capable of exercising annexation powers.   In  short,  we  are  directed  to
nothing in the record and no relevant facts susceptible of  judicial  notice
that are unique to St. Joseph  County.   Accordingly,  this  legislation  is
unconstitutional special legislation.
      In contrast to this record, in  Hoovler,  Tippecanoe  County’s  unique
Superfund site needs were well-documented.  Thus,  the  proponents  of  that
special legislation had a factual basis upon which to rest  their  assertion
that a general statute could not apply.[8]  In Moseley, the makeup  of  Lake
County, where most of the land contiguous to Lake Michigan  is  occupied  by
cities of significant size, justified  a  voting  procedure  different  from
that employed in other counties  eligible  to  adopt  dockside  gambling.[9]
Similarly,  in  Williams,  the  specific  judicial  needs  of  Lake   County
supported specific legislation providing for the appointment of  magistrates
in that county alone.  Thus, the statute in  each  case  was  constitutional
special legislation by reason of facts of record or judicially noticeable.
      Justice Sullivan is mistaken in claiming that we apply an  Article  I,
Section  23  equal  privileges  test  to  this  case.   We  have  noted  the
historical similarity of some but not all aspects of Article  IV  issues  to
Article I analysis, but our decision is based on Article IV  alone.[10]   We
also disagree with Justice Sullivan’s description of  this  Court’s  Article
IV, Section  23  precedent  as  uniformly  deferring  to  the  legislature’s
judgment.  Although the cases described by Justice Sullivan all  upheld  the
legislative action, they did so on the  merits.   They  also  plainly  found
that the issues presented by  an  Article  IV,  Section  23  challenge  were
within the province of  the  judiciary  to  decide.   Indeed  that  is  what
judicial review means.
      Justice   Sullivan   in   substance   argues   for   a   doctrine   of
nonjusticiability  of  Article  IV  issues.   But  for  over  seventy  years
precedent has uniformly rejected that view.  We think Article IV presents  a
powerful case  for  judicial  enforcement  of  a  constitutional  provision.
Forty years  ago,  judicial  intervention  was  necessary  in  the  area  of
legislative reapportionment to correct massive imbalances in  representation
occasioned by the legislature’s inability or unwillingness to recognize  the
need  to  redistrict.[11]   In  simple  terms,  the  legislators  and  their
constituents who were overrepresented  had  no  interest  in  remedying  the
situation.   Special  legislation  presents  a  similar  issue  because   it
eliminates the normal pressures of constituent objection to  unwise  policy.
This  is  less  debilitating  than  the  paralyzing  effect  of   unremedied
malapportionment.   But  the  appropriateness  of  entertaining  claims   of
unconstitutional  special  legislation   is   fortified   by   the   express
constitutional provision found in Article IV, Section  23.   Moreover,  both
the 1816 and 1851 constitutions were adopted at a time when judicial  review
of legislation for conformity to constitutional text was  well  established.
As we held in Dawson  v.  Shaver,  1  Blackf.  204,  206-07  (1822),  citing
Marbury  v.  Madison,  5  U.S.  137  (1803):  “The  task  is  delicate   and
unpleasant, but the duty of the Court is imperative, and  its  authority  is
unquestionable, to declare  any  part  of  a  statute  null  and  void  that
expressly contravenes the provisions  of  the  constitution,  to  which  the
legislature itself owes its existence.”  This case adds no new  doctrine  to
the analysis of Moseley, Hoovler, and  Williams,  and  the  legislature  has
taken no steps to eliminate Article IV, Section 23 in the years since  those
cases were decided.  Because “special legislation” doctrine  derives  solely
from Article IV, Section 23, it can readily be repealed if two  sessions  of
the General Assembly approve that decision and the  voters  ratify  it.   We
neither  advocate  nor  oppose  the  wisdom  of  Section  23.   Rather,  the
Constitution makes that decision for us.

                              V.  Severability


      Public Law No.  257,  which  contained  subsection  (g)—at  the  time,
subsection (e)—did not include a “severability clause,”  i.e.,  a  provision
that “keeps the remaining provisions of a . . .  statute  in  force  if  any
portion  of  that  .  .  .  statute   is   judicially   declared   .   .   .
unconstitutional.”  Black’s Law Dictionary 1378 (7th  ed.  1999).   Thus  we
are given no guidance from the legislature as to  what  portions  of  Public
Law No. 257, if any, survive  subsection  (g)’s  violation  of  Article  IV.
This Court applies the test for severability stated  by  the  United  States
Supreme Court in Dorchy v. Kansas:
           A statute bad in part is not necessarily void in  its  entirety.
      Provisions within the legislative power may stand  if  separable  from
      the bad.  But  a  provision,  inherently  unobjectionable,  cannot  be
      deemed separable unless it appears both that,  standing  alone,  legal
      effect can be given to  it  and  that  the  legislature  intended  the
      provision to stand, in case others included in the act  and  held  bad
      should fall.


State v. Monfort, 723 N.E.2d 407, 415 (Ind. 2000) (quoting Dorchy, 264  U.S.
286, 289-90 (1924)).  The  issue  is  whether  the  legislature  would  have
passed the remaining parts of Public Law  No.  257  had  it  been  presented
without the invalid features.  Id.
      A.  Subsection 36-4-3-13(g)
      The offending portion of Ind. Code § 36-4-3-13(g) is  the  200,000  to
300,000 population  category.   In  order  to  save  the  remainder  of  the
subsection, its provisions would have  to  apply  statewide  such  that  any
annexation by an Indiana municipality could be defeated by a  majority  vote
of landowners in the affected area.   We  reject  that  conclusion  for  two
reasons.  First, applying  subsection  (g)  statewide  would  conflict  with
subsection (e), which provides for the defeat of annexation by a  sixty-five
percent vote in every other county in the state.  Second, it seems clear  to
us that the legislature would not have passed subsection (g) as  appropriate
for the entire state.
      B.  Other Amendments Provided by Public Law No. 257
      Public Law No.  257  included  two  other  sections,  in  addition  to
Section 3 that enacted subsection (g) and Section 4 declaring an  emergency.
 Section 1 included a minor revision to Indiana Code section  36-4-3-4,  and
Section 2 amended section 36-4-3-9.  This  case  presents  no  challenge  to
either provision and we do not address the validity of either today.

                                 Conclusion


      Despite its facial generality, this Court finds  that  subsection  (g)
does, and was intended to, specifically target  St.  Joseph  County.   Thus,
subsection (g) is special legislation.  Although reasons have been  advanced
to explain why annexation in St. Joseph County must be  handled  differently
than it is in every other county in the state,  no  facts  supporting  those
reasons have been set forth in the record by the proponents of  the  special
legislation, and we are directed to judicial  notice  of  none.   Therefore,
under Article IV, Section 23, the application of subsection (g)  to  prevent
the  City  of  South  Bend   from   annexing   the   Copperfield   area   is
unconstitutional.
      The judgment of the trial court is reversed.
      SHEPARD, C.J., and DICKSON and RUCKER, JJ., concur.
      SULLIVAN, J., dissents with separate opinion.
SULLIVAN, Justice, dissenting.

      I dissent.  I believe the Court’s decision is wrong for the  following
reasons.

       1.   Both  precedent  and  established  constitutional  jurisprudence
counsel upholding the challenged statute.

        As   the   Court   observes,   we   rejected   challenges   to   the
constitutionality  of  statutes  under  art.  IV,  §  23,  of  the   Indiana
Constitution as non-justiciable prior to 1936.  While it is  certainly  true
that since that time, this  Court  has  adopted  different  formulations  or
tests for analyzing such challenges, each result has  been  the  same:   the
Court has deferred to the Legislature’s judgment.   In  recent  years,  this
has been especially apparent:

            In Evansville-Vanderburgh Levee Authority District v. Kamp,  240
      Ind. 659, 168 N.E.2d 208 (1960), we affirmed the constitutionality  of
      the Legislature’s decision to  allow  Vanderburgh  County  to  have  a
      unique city-county levee authority.


            In Dortch v. Lugar, 255 Ind.  545,  266  N.E.2d  25  (1971),  we
      affirmed the constitutionality of the Legislature’s decision to  allow
      Marion County to have the unique Unigov system of government.


            In Indiana Gaming Commission v. Moseley, 643  N.E.2d  296  (Ind.
      1994), we affirmed the constitutionality of the Legislature’s decision
      to allow Lake County to have a unique system for gambling referendums.


            In State v. Hoovler, 668 N.E.2d 1229 (Ind.  1996),  we  affirmed
      the  constitutionality  of  the  Legislature’s   decision   to   allow
      Tippecanoe County to have a unique environmental cleanup tax.


            In Williams v. State, 724 N.E.2d 1070 (Ind. 2000),  we  affirmed
      the constitutionality of the  Legislature’s  decision  to  allow  Lake
      County to have a unique system for the appointment of  Superior  Court
      magistrates.

      Each of these cases used a somewhat different formulation or test  for
analyzing the claim but reached a uniform result:  that the Legislature  was
acting within the bounds of its constitutional authority.  In my  view,  the
precedent here has not been established so  much  by  the  particular  words
different judges have used in their  opinions  as  by  the  uniform  results
those opinions have reached.

      These results have been correct and  highly  appropriate  for,  as  we
frequently observe, “Presuming [a]  statute  to  be  constitutional,  courts
place the burden upon the challenger ‘to negative  every  conceivable  basis
which might have supported’” constitutionality.  Collins v. Day, 644  N.E.2d
72, 80 (Ind. 1994)  (upholding  the  constitutionality  of  a  statute  that
denied worker's compensation benefits to farm workers) (quoting  Johnson  v.
St. Vincent Hosp., Inc., 273 Ind. 374,  392,  404  N.E.2d  585,  597  (1980)
(upholding the constitutionality of the Indiana medical  malpractice  act)).
Such reasoning is deeply grounded in the jurisprudence  of  judicial  review
that  recognizes  people’s  elected  representatives  in  a  democracy,  not
unelected judges, are entrusted with the lawmaking power.   Judicial  review
of the legality of such laws poses a  “countermajoritarian  difficulty.”[12]
Unless a challenged statute is within the scope of the Bill  of  Rights,  is
directed  against  discrete  and  insular  minorities,  or  restricts  those
political processes that can ordinarily be expected to  bring  about  repeal
of  undesirable  legislation,  American  courts  presume  constitutionality.
United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 & n.4 (1938).

      The legislation at issue here represents a political struggle  between
suburban  and  urban  interests.   While  the  geographic  focus   of   this
particular law was St. Joseph County, the legislative history shows a  hard-
fought battle in which the suburban interests narrowly prevailed.  The  vote
in the House of Representatives on the bill was 51-49 – the  minimum  number
necessary to pass.[13]  The vote in the Senate on the bill was 27-19  –  one
more than the minimum.[14]  Such close votes indicate that this was  a  bill
with significance well beyond St. Joseph County.  It is a  classic  case  of
the countermajoritarian difficulty when a court  intervenes  to  turn  those
who lost a close fight in the Legislature into winners.

      2.  The Court gives little guidance to the General  Assembly  for  the
future.

      In the future, the Legislature  will  need  to  contend  with  today’s
decision when it attempts to address such  questions  as  flood  control  in
Vanderburgh,  Unigov  in  Marion,  riverboat  gambling   or   selection   of
magistrates in Lake, environmental taxes in  Tippecanoe,  or  annexation  in
St. Joseph Counties.  The Court gives little guidance to the Legislature  in
how it will answer that question.

      The test announced by the Court  today  is  that  special  legislation
will pass constitutional muster only if “the conditions the  law  addresses”
are unique to  the  county  to  which  the  legislation  applies:   “if  the
conditions the law addresses are found in  at  least  a  variety  of  places
throughout the state, a general law can be made applicable and  is  required
by Article IV, and special legislation is not permitted.”

      But how will this work?  Let us take what appears to the Court  to  be
the easiest case, the  Tippecanoe  County  environmental  tax  at  issue  in
Hoovler.  The Court tells us that the unique condition the law addresses  is
that  Tippecanoe  County  has  “unique  Superfund  site  needs.”  But   this
condition is found in a variety of other counties throughout the state:   at
least fifteen other Indiana  counties  have  Superfund  sites  on  the  U.S.
Environmental Protection Agency’s Superfund  National  Priorities  List.[15]
That is, the law in Hoovler clearly addresses conditions “found in at  least
a variety of places throughout the state.”  The Court’s opinion  today  says
the Hoovler statute is permissible but the Court’s test  indicates  that  it
is not.

      Perhaps the greatest difficulty the Legislature will  face  is  trying
to figure out what  a  court  will  hold  to  be  “the  conditions  the  law
addresses.”  Consider the riverboat gambling statute at  issue  in  Moseley.
It permits such gambling in certain areas contiguous to Lake  Michigan,  the
Ohio River, and Patoka Lake.  If “the  conditions  the  law  addresses”  are
adjacency to large bodies of water, the statute does not  meet  the  Court’s
test because these conditions are  found  in  a  variety  of  other  places:
areas adjacent to the Maumee and Wabash Rivers, Lakes  Maxinkukee,  Wawasee,
and Monroe, etc.  But perhaps a court will hold the law addresses  different
conditions.  How is the Legislature to know?

      3.  The Court renders an enormous body  of  Indiana  law  suspect  and
takes on an enormous burden for the judicial system.

      In the Moseley case, one amicus, in an effort to demonstrate how  many
statutes would be constitutionally questionable  if  we  were  to  find  the
riverboat gambling statute violated art. I, § 23, filed an appendix with  us
with a copy of all such laws.  It ran over 500 pages.

      With  today’s  decision,  the  Court  renders  at  least  suspect  the
validity of those 500 pages of the Indiana Code.  The only  way  to  resolve
the uncertainty will be through litigation, one statute at a time.

      4.  The Court improperly subjects the City’s claim to art.  I,  §  23,
scrutiny.

      The Court subjects the  City’s  claim  to  scrutiny  under  the  Equal
Privileges and Immunities Clause of art.  I,  §  23.   But  art.  I,  §  23,
applies only to “citizens,” which a political subdivision is not.   (I  note
the City makes no argument that  the  statute  violates  its  privileges  or
immunities.)  It is wrong as a textual matter to say that  legislation  that
applies to some geographic areas of the state and not others  could  violate
the Equal Privileges and Immunities Clause; our  Bill  of  Rights  does  not
confer citizenship on  political  subdivisions.   It  is  also  wrong  as  a
jurisprudential matter not to afford more deference  to  enactments  adopted
by the legislative branch in the exercise of its powers under art.  IV  than
to legislation within a specific prohibition of the  Bill  of  Rights.   See
Carolene Prods., 304 U.S. at 152-53 n.4.

      This Court was correct when it held that claims under art. IV,  §  23,
presented no justiciable issue.  Board of  Comm’rs  of  Jennings  County  v.
Fetter, 193 Ind. 288, 296, 139 N.E. 451, 454 (1923); Gentile  v.  State,  29
Ind. 409 (1868).[16]

-----------------------
[1] At the time this action was initiated, the new subsection  was  codified
at § 36-4-3-13(e).  It was moved to subsection (g) in  the  1999  amendments
to the statute.
[2] The remonstrators are  also  required  to  show:  (1)  police  and  fire
protection, and street and road maintenance services are already  adequately
provided by a source other than the municipality;  and  (2)  the  annexation
would have a significant financial impact on  the  residents  or  owners  of
land.  Ind. Code § 36-4-3-13(g) (2002).
[3] As an alternative  to  opposition  by  a  majority  of  landowners,  the
remonstrators may show opposition by the owners of  more  than  seventy-five
percent of the assessed valuation of the land.  I.C. §  36-4-3-13(g).   That
alternative is also available for all other counties  under  subsection  (e)
as it stands today.  Id. § 36-4-3-13(e).
[4] Justice Sullivan sees significance in  the  narrow  vote  approving  the
statute in this case.   We  do  not.   The  “logrolling”  issue  Article  IV
addresses  is  not  that  the  legislators  have  no  interest  in   special
legislation.  They may indeed be very interested in using their  vote  as  a
trading  chip  for  special  legislation  of  their   own   or   for   other
considerations.  But their constituents do not share that interest,  leaving
legislators from unaffected areas  free  from  accountability  to  concerned
voters.  Whether Article IV, Section 23’s  effort  to  limit  logrolling  is
wise is not the issue.  The Constitution makes that call for us.
[5] Article IV, Section 22 states:
      The General Assembly shall not pass local or special  laws:  Providing
      for the punishment of crimes and misdemeanors; Regulating the practice
      in courts of justice; Providing for changing the venue  in  civil  and
      criminal cases; Granting divorces;  Changing  the  names  of  persons;
      Providing for laying out, opening, and working on, highways,  and  for
      the election or  appointment  of  supervisors;  Vacating  roads,  town
      plats, streets, alleys, and public squares; Summoning  and  empaneling
      grand  and  petit  juries,  and  providing  for  their   compensation;
      Providing for the  assessment  and  collection  of  taxes  for  State,
      county, township, or road  purposes;  Providing  for  the  support  of
      common schools, or the preservation of school funds; Relating to  fees
      or salaries, except that the laws may be  so  made  as  to  grade  the
      compensation of officers in  proportion  to  the  population  and  the
      necessary services required; Relating to interest on money;  Providing
      for opening and conducting elections of  State,  county,  or  township
      officers, and designating the places of voting; Providing for the sale
      of real estate belonging to minors or  other  persons  laboring  under
      legal  disabilities,  by  executors,  administrators,  guardians,   or
      trustees.
[6]  The  court  in  Schwartzman  stated  that  the   case   involved   “the
constitutional validity” of certain statutes, 60 F.2d at 1035, but cited  no
specific state  or  federal  constitutional  provision.   The  opinion  did,
however, cite to the United States Supreme  Court’s  ruling  in  Continental
Baking, id. at 1037, which is clearly a federal constitution case.
[7] In viewing the first issue as identification of a law  as  “special”  or
“general,” we  agree  with  some  states  and  disagree  with  others.   The
Louisiana Supreme Court put it precisely as we do: “An analysis  of  whether
a statute constitutes an unconstitutional local or special law  begins  with
a determination of whether the law is, in fact, local or  special.”   Morial
v. Smith & Wesson Corp., 785 So.2d 1, 17 (La.  2001).   Other  states,  like
some  earlier  Indiana  cases,   rely   on   the   reasonableness   of   the
classification  to  determine  whether  a  particular  statute  is   special
legislation.  See, e.g., Concerned Taxpayers of Kootenai County v.  Kootenai
County, 50 P.3d 991, 994 (Idaho 2002) (“The test for determining  whether  a
law  is  local  or  special  is  whether  the  classification  is  .   .   .
unreasonable.”).  Arizona’s constitution considers a  “special  law”  to  be
the equivalent of the legislation  the  Indiana  Constitution  prohibits  in
Article  I,  Section  23,  with  that  state’s  courts  also   employing   a
reasonableness test.  See Sherman v. City of Tempe, 45 P.3d 336, 341  (Ariz.
2002)  (“An  unconstitutional  special  law  grants  ‘to  any   corporation,
association,  or  individual,  any  special  or  exclusive  privileges.’  To
determine whether a law is a special  law  we  first  consider  whether  the
classification created by  the  law  has  a  reasonable  basis.”)  (citation
omitted).  Illinois also says  it  generally  judges  equal  protection  and
special legislation  challenges  “under  the  same  standards.”   Miller  v.
Rosenberg, 749 N.E.2d 946, 952 (Ill. 2001).
[8] Justice Sullivan points out  that  there  are  at  least  fifteen  other
Indiana counties with Superfund sites.  This wholly misses the  point.   The
Superfund liability described  in  Hoovler  was  unique  because  Tippecanoe
County had the only site in the state for which local governmental  entities
had been designated Potentially Responsible Parties by  the  EPA.   Hoovler,
668 N.E.2d at 1234.  The issue is whether the county  government  had  major
Superfund exposure, not whether a Superfund site was located in  the  county
but funded by private “Potentially Responsible Parties.”
[9] Justice Sullivan describes the issue in  Moseley  as  whether  riverboat
gambling was appropriately permitted in areas contiguous to  Lake  Michigan,
the Ohio River, and Patoka Lake and not in other Indiana  locales  bordering
other large bodies of water.  As this Court explained,  the  issue  was  not
that, but rather whether the different voting  procedures  in  the  counties
permitted to have riverboat gambling satisfied Article IV, Section 23:

      To their credit, counsel for appellees recognize  [that  limiting  the
      locations of riverboats to the specified counties naturally flows from
      the fact that not every county is home to a suitable body  of  water],
      and argue beyond it that all counties selected must still  be  treated
      alike. We conclude that the distinctions drawn between Lake County and
      the others fit this purpose of this local law.  In  Lake  County,  the
      whole of the  waterfront  is  covered  by  substantial  cities,  whose
      residents have the greatest interest in how the shore is used. In  all
      the other counties, however, the shore contains both incorporated  and
      unincorporated territory. It thus seems sensible to stage  a  vote  of
      all persons in the county.

Moseley, 643 N.E.2d at 301.  Moseley thus turned on facts specific  to  Lake
County  as  distinguished  from  the  other  counties  authorized  to  adopt
riverboat gambling.
[10] To be sure, Article I confers rights on  “citizens.”   But  we  do  not
mean to imply acceptance of Justice Sullivan’s suggestion that citizens  who
are classified by geographic locale have any less claim to equal  privileges
and immunities than those classified by any other means.  This, however,  is
an issue for another day.
[11] The 1960 election was conducted using  districts  drawn  based  on  the
1920 census.  Stout v. Hendricks, 228 F. Supp. 568  (S.D.  Ind.  1963).   By
reason of the enormous growth of  cities  and  suburbs  in  the  intervening
period, by 1960 some representatives were elected from districts four  times
the size of others.  Baker v. Carr, 369 U.S. 186  (1962),  and  Reynolds  v.
Sims, 377 U.S. 533 (1964), were regarded as muscular exercises  of  judicial
power forty years ago, but in retrospect are widely  accepted  as  necessary
checks on legislative  discretion  for  the  very  reason  that  the  normal
incentives of the legislature to act in  the  overall  public  interest  are
disabled if each individual legislator is benefited by the status quo.   See
Martin D. Carcieri, Bush v. Gore and Equal Protection, 53 S.C. L.  Rev.  63,
76-77 (Fall 2001) (“In some cases, notably the  voting  rights  cases,  [for
example Baker v. Carr and  Reynolds  v.  Sims]  the  judicial  role  can  be
defended as necessary to safeguard the equal access  of  every  American  to
elected officials and institutions of governance. Even if the  institutional
limitations of  the  adjudicatory  process  decrease  the  possibility  that
courts can provide comprehensive solutions, on balance the good done by  the
judiciary  in  these  cases  of  political  process  failure  outweighs  the
harm.”);  Richard  H.  Pildes,   Voting   Rights,   Equality,   and   Racial
Gerrymandering: Diffusion of Political Power and the Voting Rights  Act,  24
Harv. J.L. & Pub. Pol’y  119,  126-27  (Fall  2000)  (“The  Supreme  Court’s
initial development  of  the  one-person,  one-vote  doctrine  came  in  the
context of the grotesque, massive malapportionments  characteristic  at  the
time of Baker v. Carr and Reynolds v. Sims.  That doctrine resulted  in  the
necessary destabilization of a democratic system that  had  become  captured
by a small oligopoly that had no interest in changing the rules under  which
it had been elected.”).
[12]   The scholarship is voluminous.  The classics include:  Learned  Hand,
The Bill Of Rights (1958); Herbert Wechsler, Toward  Neutral  Principles  of
Constitutional Law, in Principles,  Politics  and  Fundamental  Law  (1961);
Alexander  Bickel,  The  Supreme  Court,  1960  Term  Forward:  The  Passive
Virtues, 75 Harv. L. Rev. 40 (1961); Alexander Bickel, The  Least  Dangerous
Branch (1962); Gerald Gunther, The Subtle Vices of the  "Passive  Virtues”—A
Comment on Principle and Expediency in Judicial Review, 64 Colum. L. Rev.  1
(1964).
[13] 1993 H.J. 636.
[14] 1993 S.J. 669.
[15] See  http://www.epa.gov/superfund/sites/npl/in.htm  (visited  Jan.  15,
2002).  Indiana has many more Superfund sites that do not rise to the  level
of         a         National          Priority          Site.           See
http://www.epa.gov/superfund/sites/cursites/incerlst.htm (visited  Jan.  15,
2002).
[16] These early cases deserve more credit than the Court gives  them  today
because  cases  decided  close  to  the  time  of  the  enactment   of   the
constitutional provision help us understand the intent of the framers.   See
McIntosh v. Melroe Co., 729 N.E.2d  972,  974  (Ind.  2000);  Richardson  v.
State, 717 N.E.2d 32, 38 (Ind. 1999); Bayh v. Sonnenburg,  573  N.E.2d  398,
412 (Ind.1991), cert. denied 502 U.S. 1094 (1992) (quoting State v.  Gibson,
36 Ind. 389, 391 (1871)).