The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1902-02-27
TT. WAYNE CHARTER ACT
SUPREME COURT DECIDES 1T Is IN
CONSTITUTIONAL.
Judge HadIey, Who Writes the Opin-
ion, Says the Law Is an Ofense
Against Property Rights.

The Fort Wayne charter act was held un-
constitutional in a decision handed down
yesterday by the Supreme Court. TIL act
was passed by the last Legislature, and au-
thorized the Governor TO appoint a board
OF safety for Fort Wayne that would have
control of that city's fire department as
well as its police department. 1t is the
provisions for control of the fire department
that are held TO make the act invalid, but
they are so involved with the police pro-
visions that the latter cannot be separated,
and the whole act fails.
The suit grew out of the refusal of the
Fort Wayne controller to accept the bonds
of the members of the Board of Safety ap-
pointed by the Governor. The members
brought an action OF mandamus TO compel
the controller TO accept the bonds. The
Circuit Court refused 10 issue the writ,
and on appeal its decision was affirmed.
The case was one of two appeals from
Fort Wayne. The other involves the va
idity of a law passed at the same time,
giving the Governor the power to appoint
a police judge for Fort Wayne. The de-
cision handed down yesterday was written
by Judge Hadley. and in part he says:
1T is well TO note at the beginning that
this question does not challenge the right
of the State to supervise the power Of mu-
nicipal bodies so far as it relates TO sub
Jects of public concern, such as the preser-
walton of the peace, the construction and
care OF public streets, sewers and the like,
but the inquiry here is restricted TO the
power of the Legislature to strip a town
or city organization of all right TO manage
In It's own way the exclusive private prop
erty II is authorized to acquire. In other
words. may the General Assembly, for the
purpose or permitting an increase of local
on w for and ura1fa-- ~ -
levy taxes upon its own inhabitants and
herewith provide engine houses, engines,
horses. hose. ladders. hospitals. libraries,
markets charities, public halls and parks,
all for the exclusive use and at the ex-
elusive expense of the city, and having once
acquired those things according TO the
tastes. ability and judgment of those who
State, with constitutional approval, ca
priciously step in and turn out the city's
chosen custodians and employees and place
its own commissioners in charge. with
power to change what the city has selected,
to buy and d sell to contract debts. to APP
salaries and charge all costs and expenses
to the city?
PURPOSE OF MUNICIPALITIES.
1T should be remembered that munich
pal corporations are instituted by legisIa-
tive authority for a twofold purpose: First,
as State governmental agencies. to assist
the State in their localities in the admin
i%stration and execution Of such laws as
pertain to the people of the State at large.
Second. for the promotion Of certain ex-
clusively local interests which are peculiar
to concentrated population, and In which
the State, except in comforting the power
and regulating its exercise. has no more
right OF interference than ii has with the
private affairs of its several inhabitants.
With respect to the first there are i'm
portant powers delegated to municipalities
which concern every citizen of the State.
and for the proper exercise of which the
State cannot abdicate responsibility by
committing them to local officers. 1t is
very clear from the tenor of the whole in
strument that the Constitution makers
never intended that the territorial d-
visions recogniZed-that is, counties. town
ships and owns-should govern themselves
Independently of State supervision or of
State supremacy, but in every matter
which affects the safety, morals. health or
general welfare of the people at large, or OF
a considerable number OF them, there is
undoubtedly reserved in the State the pow
er to supervise, control and even coerce
local officers in the discharge OF public
duties, and even 10 send its own agents
into any organized district, il necessary,
TO enforce a public right, or accomplish a
public benefit.
With respect to the second, each munic-
ipality organized under State authority is
a distinct entity and factor in the State
government, as an individual Is an entity
and factor. And while the Constitution
and laws implicitly give the individual the
AA5hN " q BACpNAN ~ Ao w OCh-
eft. and guarantee to him its enjoyment,
the same power that gives the municipality
the right to exist. gives also In express
such property as IL may deem beneficial or
conducive to the greater comfort and hap
piness Of it's citizens, such as parks, halls,
hospitals. arts and appliances for protec-
ton against fire. These are strictly pri-
vate possessions, lawfully held. They are
bought and paid for by the people of the
city. They neither add to nor diminish the
burdens of the State. or any part OF 1t
outside the corporation. The city's abso-
lutte, separate and distinct tenure of such
property is not different from the holding
of like property by an individual. Can the
property of one be sequestered by the State
and not the other?'
PROPERTY RIGHTS.
Judge Hadley further says that the cit;-
zens of Fort Wayne had provided them
selves with such means for protection
against fire as they approved and thought
best they could afford and the State had no
right arbitrarily to assume the possession
and control TO the exclusion of the city.
The chief right of property, he says. is in
the unrestricted right of possession and
control; and when the State sends its agent
into the city of Fort Wayne and Gusts the
city from the possession of its property
and takes exclusive control, what Is the
act but sequestration, and the taking of
property without compensation? Judge
Hadley also says for the State to assume
control would be taxation without represen-
tation. Judge Hadley concludes:
"The power commended for by appellants
is far reaching. II the Legislature may
empower the Governor to appoint a COM
mission of his own choosing to take do
minion and management OF the fire es-
tablishment of the city of Fort Wayne.
without the consent of the city. then the
Governor may from the same source OF au-
thority be empowered 10 appoint. through
his commission, or one man for that mat
ter, every municipal officer. except judi
cial. in every town and city of the State.
He is a brave advocate who will under
take 10 maintain that the people intended.
by Implication, 10 delegate to their legisla-
tive servants the power to provide for
the appointment. as caprice might dictate.
or party interest require. OF the mayor,
members of the Common Council. and
every other governing officer of a city. ex-
cept those invested with judicial functions.
To thus deprive the people OF a locality OF
, the right TO choose their own immediate
local officers is 10 rob them of their free
dom and 10 defeat one OF the great ends for
which the government was established