Rappaport v. Department of Public Health & Hospitals

87 N.E.2d 77, 227 Ind. 508, 1949 Ind. LEXIS 161

• Court: Indiana Supreme Court
• Decided: July 5, 1949
• Docket: No. 28,534.
• Status: Published

Opinions

Young, J.

This action was brought by the appellant, a taxpayer in the City of Indianapolis, for himself and in behalf of others similarly situated. The defendants were the Department of Public Health and Hospitals of the City of Indianapolis, and five individuals, constituting the Board of Public Health and Hospitals of the City of Indianapolis, and the secretary of such board. The appellees, acting pursuant to ch. 200 of the Acts of 1945, as amended by ch. 323 of the Acts of 1947 (§ 48-8401, et seq., Burns’ 1933), had taken the preliminary steps to build additions and improvements to the Indianapolis City Hospital and to issue $2,600,000 of bonds to defray the cost of these new facilities. The purpose of the action was to enjoin the appellees from letting contracts for, or issuing bonds to defray the cost of, such additions and improvements. Appellant contends that the issuance of such bonds will constitute an evasion of the debt limitation imposed upon the City of Indianapolis by Art. 13 of the Constitution of Indiana, which reads as follows:

“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 the State and county taxes, previous to the incurring of such indebtedness; . . .”

There is no conflict in the evidence or controversy about the facts which are material in a decision of this case. The regularity of the proceedings of appellees is not challenged. The sole question is whether or not the Act of 1945, as amended in 1947, and the challenged proceedings of the Department of Public Health and Hospitals of the City of Indianapolis, organized thereunder, are constitutional.

Historically the functions of the civil cities of the state have included matters pertaining to public health and hospitals. This has been true legislatively and in actual practice at least since 1852.

Chapter 17 of the Revised Statutes of Indiana of 1852 is entitled, “An Act for the Incorporation of Cities.” It was approved June 18, 1852, and was among the first legislative acts under our present constitution. Section 35 of this act vests in the common council of cities the power to pass ordinances for stated purposes. Among them, under sub-head 34, was the power “to establish a Board of Health and invest it with necessary powers.” 1 Revised Statutes of 1852, p. 211. There were amendments to this act from time to time up to 1881, none of which took from cities the right to have a board of health. Section 3106 of the Revised Statutes of 1881, sub-head Thirty-five, provided that the councils of the several cities of the state should have the power to establish boards of health and invest them with necessary powers to attain their objects.

The cities and towns act of 1905 (Acts of 1905, ch. 129), provided that the councils of the several cities should have the power “to establish, maintain and regulate . . . pest-houses, hospitals, dispensaries, ...” § 48-1407, Fifty-first clause, Burns’ 1933.

The Act of 1905 (§213), further provided that in every city of the state there should be a department of health and charities, to be under the control of a board of three commissioners, known as a Board of Health, and also provided that this board should have charge of the city hospital and dispensary and the sanitary affairs of the city and appoint the superintendent of the city hospital, § 48-7401, Burns’ 1933.

In 1913, the legislature passed an additional act, specifically giving the Board of Health of cities of the first class the power “to acquire, lay out and improve land for public hospitals, dispensaries and such other purposes as may be necessary for the administration of the duties or works of the department; and to govern, manage, maintain, regulate and direct the use of same, and to make rules and regulations for their proper management and government.” § 48-7403, Burns’ 1933. And in addition, a special tax not to exceed twelve cents on each $100 of taxable property was authorized for the use of the board. There was no other legislation germane to the subject matter of this case until the Act of 1945, heretofore referred to. It appears, therefore, that continuously from 1852 to 1945 boards of health with necessary powers to attain their objects, including the establishment, maintenance and operation of hospitals, have been constituent parts of our city governments.

Chapter 200 of the Acts of 1945, created in cities of not less than 300,000 population a Department of Public Health and Hospitals, and transferred to this new de partment all the rights, powers and duties conferred by existing laws on the Departments of Health and Charities, the Boards of Health, and kindred agencies of the several cities of the state of not less than 300,000 population, which included responsibility for the operation of the city’s existing hospital and health agencies. It was provided that the new department should be under the general control of a Board of Public Health and Hospitals, the members of which, five in number, were to be appointed by the mayors of the several cities, and among the powers given to such new Board of Public Health and Hospitals was the power “to operate, maintain and construct such hospitals, clinics, health centers and dispensaries as may, in the judgment of the board, be needed to carry out the purposes and intent of the Act.” The Act of 1945 (§16), as amended in 1947, establishes a Public Health and Hospitals District in each city of the state having a population of more than 300,000, such district to include all the territory within the corporate limits of any such city, and the territory of any incorporated town lying within the corporate boundaries of such city, and it was provided that upon request of the proper officers any governmental unit, recognized or established by law other than for school purposes within the county, may, upon request of such unit, be incorporated into such district by the Board of Public Health and Hospitals. It is further provided that taxes to pay the general expenses of the new Board of Health and Hospitals, including the cost of operating and maintaining the hospitals and other facilities under the control of said Board, be levied by the common council of the city and the Boards of Trustees of such towns as may be included in the district, and that the taxes collected upon such levies be placed in a special fund and that the Board of Public Health and Hospitals have full, complete and exclusive authority to expend for and on behalf of said city, such unincorporated town and such other governmental units as may become a part of such Public Health and Hospitals District all sums of money thus realized, and that warrants for such expenditures shall be drawn by the controller of such city upon vouchers of such Boards of Public Health and Hospitals.

It is further provided that for the purpose of raising money for the repair, construction and equipment of hospitals, clinics, health centers or dispensaries or the remodeling thereof, or structures needed in connection with the operation thereof (§ 18), the Board of Public Health and Hospitals may cause to be issued in the name of the city, bonds of such Public Health and Hospitals District in an amount not to exceed the total cost of such repairs, construction, equipment, etc. A copy of the resolution ordering such bonds must be certified to the City Controller, whose duty it is to prepare the bonds and same shall be executed by the mayor of said city and attested by the city controller.

It is provided that no bonds shall be issued in excess of two per cent of the total valuation of the property within such District (§18), and that such bonds shall not be an indebtedness of such city, but shall be an indebtedness of said Health and Hospitals District and shall be payable only out of a special tax levied upon all the property of said Health and Hospitals District (§ 18). It is further provided that the Board of Public Health and Hospitals shall levy said special tax in such manner as to meet and pay the principal of said bonds as they severally mature, together with all accruing interest thereon (§18b). The tax so levied each year shall be certified to the City Controller and to the Auditor of the County and shall be collected in the same manner as state and county taxes are collected and the money so collected shall be accumulated and kept in a separate fund to be known as the “Health and Hospital Bond Fund” and shall be used to pay said bonds as they mature, and interest as it accrues, and for no other purpose.

It will be observed that the Act of 1945 as amended in 1947 does not divorce the new department from the city in which the new setup is designed to operate. The very first section of the Act of 1945 provides that a department of public health and hospitals is created in cities of the first class having a population of not less than 300,000. This language tends more to indicate a legislative intent to identify the new department with the city than it does to indicate a separation of such department from the city. Section 2 transfers the powers and duties of the existing department of health and charities of such cities to the new department, including the operation and maintenance of the existing city hospital and its equipment and facilities, but at no place in the act are the existing hospitals and facilities owned by the city transferred to the new department. The general control of the new department is placed in a Board of Public Health and Hospitals (§3), the members of which are appointed by the mayor (§ 4). The budgets for the various activities of the new department are prepared by the heads of three divisions into which the new department is divided, but are reviewed by the Board of Health and Hospitals, and, upon approval, the board certifies the budget to the mayor for presentation to the city council (§ 6g), which, with the boards of trustees of the towns which are also included in the district, levies a tax sufficient to provide the necessary funds (§17) for the efficient operation of the department. Because of the relativity small amount of taxable property in the towns, substantially all money for the operation of the facilities of the new department is provided by the tax levied by the city council. The records and accounts of the department may be kept by the city controller and the city controller shall maintain general control accounts of all appropriations and funds and shall make all disbursements for and on behalf of the department, except disbursements from funds derived from gifts and bequests (§§ 12 and 17). Thus it seems that the control of the new department remains very effectually in the city. The administering board is appointed by the mayor; the budget is submitted to the mayor and city council, and operating expense must be met by taxes levied by the city council; the city controller in effect keeps an eye on its bank account and pays its bills, and the money so raised is expended in the words of the statute, “for and on behalf of the city.” (§17). It is only when it comes to the matter of capital investments and financing same by bonds that the real change brought about by the new legislation is disclosed. It is only then that there is any substantial autonomy in the new district, and, even then, there are ties which identify the old with the new. The bonds are issued in the name of the city, the resolutions authorizing them are certified to the city controller, and the city controller prepares the bonds and they are executed by the mayor and attested by the city controller.

We have analyzed the statutes and are referring to the sections thereof which seem to identify the old setup with the new because, as we view the case, it turns upon whether the new arrangement provided by the statute creates a new and independent entity or whether it is a subterfuge which serves to permit an enlarged debt limit for the city of Indianapolis in evasion of Art. 13 of the Constitution. If actual control of the new mechanics for exercising the old functions remains in the city, that is a proper matter to consider in determining the question of evasion.

In Cerajewski v. McVey (1947), 225 Ind. 67, 72 N. E. 2d 650, we recently considered the primary question presented by the case before us. It is not necessary, therefore, that we discuss here in detail the applicable law. It is sufficient to say that by that case and the cases therein cited, it seems to be established that there may be more than one governmental unit in identical territory and that in proper cases the debt limitation imposed by the Constitution applies separately to the indebtedness of each unit and not to the indebtedness in the aggregate of two or more units, but that when we meet such a situation we must examine it carefully and look through form to substance and where we find something, the effect of which is in substance to evade the intent of the Constitution, we must condemn it, no matter what form it takes.

No hard and fast rules to test the question of evasion in cases of this kind can be laid down. Each case must stand on its own bottom. In each case, we must look to the true inwardness of the situation, in the light of the purpose of the constitutional provision. If, on the whole, the real effect seems to be to increase borrowing power in the exercise of substantially the same governmental function, in substantially the same area, rather than better to accomplish a public service, then there has been an evasion and Article 13 has been violated.

It was stipulated that on March 14, 1881, when Article 13 of the State Constitution became effective, there was in existence as an integral part of the municipal structure of the City of Indianapolis a Board of Health, and, continuously since that time, there has been such a board which has performed, in a general way, the duties imposed by the 1945 act as amended in 1947, upon the Department of Public Health and Hospitals of the City of Indianapolis thereby created.

It was further stipulated that for over 50 years the City of Indianapolis has maintained a hospital, which began in a very small way and has grown to be a very large institution. It has been financed by the City of Indianapolis within its general two per cent debt limit imposed by Art. 13 of the Constitution of Indiana. When the Department of Public Health and Hospitals of the City of Indianapolis was organized in accordance with the provisions of the Act of 1945 the existing hospital and facilities then owned and operated by the City "of Indianapolis were turned over to the new department for operation-, and a new “district,” to which the legislature attempted to give a new and additional debt limit of two per cent, was created. The area of this new district is substantially the same as the area 'of the City of Indianapolis. The town of Woodruff Place was included and the town of Ravenswood has since become a' part of the district, but these additional areas are comparatively so small and contribute comparatively so little to the taxable property of the' district that for practical purposes we may treat the areas as identical under the doctrine of de minimis non curat lex. On January 19, 1949, the taxable property of Indianapolis was $596,128,940, to which Woodruff Place and Ravens-wood added only $1,725,350. The practical result, therefore, is that the people of the City of Indianapolis, by virtue of the Act of 1945, as amended in 1947, have had the limit of debt which may be iihposed upon them and their property enlarged by an additional two per. cent notwithstanding Art. 13 of the Constitution; and the enlargement was for the avowed purpose of financing an activity or function of government which, for a long time before had been, and at the time of the adoption of Art. 13 of the Constitution was being, and ever since has been, exercised and financed by the City of Indianapolis within its constitutional two per cent debt limit.

The purpose of Art. 13 of the Constitution obviously was to minimize the burden of excessive debt by the several governmental units in the performance of their functions. When Art. 13 was adopted, the functions of government having to do with boards of health and hospitals had, as we have seen, long reposed in the cities of the state. It is hard to believe that those who conceived the debt limitation idea contemplated that it could be circumvented by the simple device of violating tradition and custom and lifting health and hospital service from the city’s realm of activity and putting it in a new and separate governmental unit, embracing substantially the same territory, with a debt limitation all its own. This would not lessen the burden of debt. Such change in form ought not to avoid the impact of Art. 13 of the Constitution merely because the territory is dubbed a district in addition to being a city. Whether incurred in one name or another, ultimately it would have to be paid by the same taxpayers of the same areas. And the addition or subtraction of territory so small as to be inconsequential in effect does not change the situation. If it did, it is clear we would have a ready device to evade the constitution. To shift a governmental function from an old governmental unit to a new one in the same area in effect would, to the extent of indebtedness incurred by the new unit, in connection with the exercise of such function, enlarge the debt limit within which the exercise of the function had been financed. This has been done by the statute under consideration. With this in mind, and with the further fact in mind, that substantial control remains in the city, with only a little change in mechanics, we are almost compelled to think that the change was made for the purpose of circumventing the constitutional debt limitation, and, even though made with the best of motives, it transgresses our fundamental law. If within our constitution, as it is, we cannot finance necessary hospital additions and improvements then we should amend the constitution, not flout it.

If a separate government unit with a separate and independent debt limit for health and hospitals may be created, then a separate unit to exercise the functions of the fire and police departments can be carved out. If a city hospital can be so financed, why not a city hall or any other essential city function or building. If these things can be done then the debt limitation of the constitution for all practical purposes is nullified.

Appellees argue that there could have been no intent to evade the debt limitation provision of the constitution, either by the Legislature or by those who advocated the passage of the 1945 act, or the 1947 amendment, because no steps to issue bonds were taken until October, 1948, whereas the 1945 act became effective March 6, 1945, and the amendment became effective March 13, 1947. They seem to believe that if evasion had been the purpose, more prompt action would have been taken. That may be true, but it is not material in reaching a conclusion in this case. The new setup may have been innocently conceived with the best motives in the world, but in testing the constitutionality of legislation, courts do not look to motives or the wisdom or desirability of the end sought to be attained. We may look only to the effect and result, and, if the new legislation, however desirable, appears to be a device which in fact serves to circumvent the constitutional debt limitation provision, we have no choice but to condemn it. Paraphrasing the words of Judge Elliott, in the case of Town of Winamac, et al. v. Huddleston (1892), 132 Ind. 217, at p. 218, 31 N. E. 561, we may regret that the bonds to build additions to and improvements in the Indianapolis City Hospital may not be issued “but we can not escape the force of the strong and plain provision of our organic law.”

The appellees urge upon us strongly the case of Board of Com’rs. etc. v. Harrell et al. (1897), 147 Ind. 500, 46 N. E. 124. They argue from that case that because the bonds here involved are payable out of a fund arising from a special tax they do not create an indebtedness within the inhibition of the constitution. The Harrell case involved the construction of free gravel roads under the provisions of the gravel road act of 1893 (Acts of 1893, p. 196). The question was whether the bonds to be issued to construct the roads would create an indebtedness of the township in excess of two per cent of the assessed value of the property of said township. The court held that the bonds were not an indebtedness of the township and therefore were not within the debt inhibition of the constitution so far as the township was concerned.

In the Harrell case the court makes it perfectly clear that the tax levied for the creation of a fund from which to pay gravel road bonds was in the nature of an assessment of special benefits for local improvements and the opinion goes little further than to hold that the constitutional inhibition against excessive debt does not apply to bonds payable only by assessments upon property specially benefited by a local improvement on account of which the bonds were issued. The benefits arising from the provisions of the act of 1945 as amended in 1947 are not special and are not of the type ordinarily financed by assessments upon property specially benefited. They are general and the reasons for holding indebtedness for local improvements not an indebtedness of the township in that case, does not apply here. Roads and streets have through the years been thought of and considered as local improvements properly paid for by special assessments for the purpose. Hospitals, on the other hand, have through the years been thought of as city-wide institutions and their establishment and maintenance have been among the general functions of local government paid for out of general taxes.

The opinion in the Harrell case was criticized by the opinion in Board of Com’rs of Switzerland County v. Reeves et al. (1897), 148 Ind. 467, 46 N. E. 995. The author of the opinion in the Reeves case thought that the Harrell case mistakenly held that the bonds involved did not create a debt of the township because they were payable only out of a fund created by a special tax and hence did not constitute an infringement of Article 18 of the Constitution. We are disposed to agree with the author of the opinion in the Reeves case, but we are not disposed to overrule the Harrell case. We recognize the reason for and the wisdom of the doctrine of stare decisis. We do not know the extent to which the rule laid down in the Harrell case has been acted upon and we do not overrule it, although we think it badly decided. We are disposed, however, to limit the application of the rule laid down in the Harrell case to what have long been thought of as local public improvements and not to permit it to be extended to situations such as that before us.

Appellees also argue that conditions have so changed and are now such that the Indianapolis City Hospital serves many people living outside the city and that, therefore, the city alone should not be compelled to finance the hospital. This argument is not persuasive with us. The new statutes do not cure this evil. As a matter of fact, under the proposed new setup there will be substantially as many people in Marion County outside the city who are not included in the new district as there were before the new setup came into existence. It is true that health and hospital services in many circumstances cannot be denied, but provisions can be made for payment for services by those able to pay, as well without a new debt limitation district as with. Arrangements could be made with outlying or overlapping governmental units for the services of the hospital and sanitary forces of the city just as is done in connection with police and fire protection for smaller cities by nearby larger cities.

We conclude that hospitals are not local improvements for which special assessments may be levied under the Harrell case, and that the acts of 1945 and 1947 herein considered are, to the extent they permit indebtedness beyond the two percent debt limitation of the city of Indianapolis, an evasion of Art. 13 of the Indiana Constitution. The fact that the new bonds sought to be issued would not, if charged against the city, increase the city’s indebtedness beyond two per cent does not render the issuance of such bonds free from attack. They were issued according to procedure set up in the part of the 1945 and 1947 acts, which we have found to be repugnant to the Constitution.

The judgment is reversed, with instructions to sustain appellant’s motion for a new trial.

Emmert, J., dissents.

NOTE.—Reported in 87 N. E. 2d 77.