# Foltz, Van Camp Hdw., Etc. v. City of Indpls.

> Indiana Supreme Court · December 16, 1955 · 234 Ind. 656

URL: https://www.frixlaw.com/law-library/cases/9523313

## Case

- **Full name:** Foltz, Van Camp Hdw., Etc. Co. Et Al. v. City of Indianapolis Et Al.
- **Court:** Indiana Supreme Court
- **Decided:** December 16, 1955
- **Citations:** 234 Ind. 656; 130 N.E.2d 650; 1955 Ind. LEXIS 187
- **Precedential status:** Published
- **Opinion:** Concurrence by Achor
- **Judges:** Arterburn, Bobbitt, Emmert, Landis, Achor
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9523313

## Opinion text

Concurring Opinion
Achor, J.
Appellants contend that, conceding the public necessity for off-street parking facilities, the Off-Street Parking Act (§§48-8421—48-8443, Burns’ 1950 Repl. (19'55 Supp.)) is unconstitutional for the reason that it expressly provides that “. . . the commission (authorized to establish utility) shall have no *689 power ... to determine or set the amount of any charges made to the public . . .” for services of such ■utility. §48-8430(d), Burns’ 1950 Repl. (1955 Supp.), Acts 1949, ch. 261, §10, p. 941.
Appellants urge that the above provision constituted an express abandonment by the state of its inherent and therefore inalienable right to exercise its police power over the utility for the purpose of regulating its charges made to the public. Appellants urge that if off-street parking facilities are of such public necessity to justify the condemnation of land for such public use, that the legislature is without constitutional authority to abandon or divest the state of the police power to regulate “the amount of any charges made to the public” for such facilities. There is substantial authority in support of the legal position asserted by appellant. See 6 C. J. S., Constitutional Law, §179, p. 549.
However, the appellant has misconstrued the above controversial provision of the Act. The law is well settled that the state may delegate a portion of its police power to a subordinate municipality, commission or board, created by the state.
However, the law is also well settled that, although the streets and highways of a city are of particular interest to the citizens of that city, because of the fact that they are also a part of the general highway system of the state they are subject to control and regulation by the state under its police power, unless the state has expressly waived or delegated to the municipality its right to do so. The same rule has also been held to apply with regard to public service companies which serve the residents of a particular city. Winfield v. Public Service Commission (1911), 187 Ind. 53 , 118 N. E. 531 .
By the same analogy, although off-street parking in the City of Indianapolis may be of particular interest *690 to the citizens of this city, since the services of the utility are also of interest to the general public, the state which has authorized the creation of the utility has the inherent and constitutional authority to control and regulate it, unless that right is expressly abandoned or delegated to a subordinate authority. Winfield v. Public Service Commission, supra; 55 L. R. A. (N. S.), 1915C, 268, 269.
In the words of Chief Justice Marshall in Providence Bank v. Billings, 4 Pet. 514, 561 , 7 L. Ed. 939, 955 , “Its abandonment ought not to be presumed in a case in which the deliberate purpose of the state to abandon it does not appear.” See also, City of Washington v. Public Service Commission (1921), 190 Ind. 105 , 129 N. E. 401 ; Greensburg Water Co. v. Lewis (1920), 189 Ind. 439 , 128 N. E. 103 ; 28 A. L. R., 587-609.
However, in this case the constitutionality of the Act is not dependent upon the construction of the statute. In the case before us there was no attempt by the legislature, either express or implied, to abandon or delegate to the commission, a local municipal authority, the police power by the state to regulate the off-street parking utility and then to restrict the exercise of that power by the commission. On the contrary, the statute clearly and in concise terms merely provides that “the commission, shall have no power to determine or set the amount of any charges made to the public” by the utility. The statute makes no reference to the inherent ■right'of the state itself to exercise its police power to regulate the rates charged. Therefore, that right is clearly retained by the state and could be made operative by appropriate legislation whenever in the opinion of the legislature the exercise of the state’s police power might be required. Thus the right of the state to regulate the services and rates of the utility in controversy, although not a proper subject of contract between the *691 commission-and the lessee, is- incorporated ill the lease by operation of law.
Section 10, page 941, Acts 1949 (§48-8430 (d)., Burns’ 1950 Repl. (1955 Supp.)), supra, does not divest the state■ of its police power to regulate the rates charged by off-street parking facilities, a public utility, the creation of which is authorized by the Act. That right remains in the state unabridged. Therefore, appellants’ contention that the Act is unconstitutional, because of the denial of such right to the local, commission, is not well founded. .
Nóte.—Reported' in 130 N. E.' 2d 650.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9523313. Public record. Not legal advice.