City of Indianapolis v. Clint's Wrecker Service, Inc.

• Decision Date: 19 October 1982
• Docket Number: No. 1-780A171,1-780A171
• Parties: CITY OF INDIANAPOLIS, Honorable William H. Hudnut, Mayor of the City of Indianapolis, His Agents, Employees and Representatives; Sheila S. Suess, Corporation Counsel of Indianapolis, Her Deputies and Agents; Eugene Gallagher, Chief of the Indianapolis Police Department, His Police Officers and Agents; James Wells, Marion County Sheriff, His Deputies and Agents, Defendants-Appellants, v. CLINT'S WRECKER SERVICE, INC., an Indiana Corporation, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 737

440 N.E.2d 737

CITY OF INDIANAPOLIS, Honorable William H. Hudnut, Mayor of the City of Indianapolis, His Agents, Employees and Representatives; Sheila S. Suess, Corporation Counsel of Indianapolis, Her Deputies and Agents; Eugene Gallagher Chief of the Indianapolis Police Department, His Police Officers and Agents; James Wells, Marion County Sheriff His Deputies and Agents, Defendants-Appellants, v. CLINT'S WRECKER SERVICE, INC., an Indiana Corporation Plaintiff-Appellee.

No. 1-780A171.

Court of Appeals of Indiana First District.

Oct. 19, 1982.

John P. Ryan, Richard S. Ewing, James B. Burroughs, George A. Hillman, City-County Legal Div., Indianapolis, for defendants-appellants.

John R. Politan, Clark, Clark, Pappas & Quinn, Indianapolis, for plaintiff-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

This is an interlocutory appeal by the Consolidated City of Indianapolis (City) from a partial summary judgment entered by the Boone Circuit Court in favor of Clint's Wrecker Service, Inc. (Clint's) in its action for injunctive relief and damages. The trial court's judgment invalidated an ordinance of the City-County Council of the City of Indianapolis and of Marion County (Council) on constitutional and other grounds, and enjoined its enforcement. The trial court reserved for later adjudication, pending resolution of this appeal, Clint's claim for damages for lost profits due to enforcement of the allegedly unconstitutional ordinance.

We reverse.

STATEMENT OF THE FACTS

The facts are undisputed. ¹ On January 1, 1977, City-County General Ordinance No. 58, 1978 (Ordinance), which amended Chapter 29, Article VI of the Code of Indianapolis and Marion County (Code), went into effect. Section 8 of the Ordinance adds a new Sec. 29-375 to the Code, and states in part:

"(1) It shall be unlawful for any wrecker to proceed to the scene of an accident for solicitation purposes without having been summoned by either party In addition to this provision, hereinafter Sec. 29-375(1), the Ordinance added some nine new sections to Chapter 29, Article VI of the Code, while repealing five existing sections. The subject matter of the Ordinance generally concerns procedures for removing vehicles that are determined to be traffic hazards from City streets, highways, rights-of-way, and publicly owned property. In addition to vehicles that have been involved in accidents, provision is made for removal and impoundment of stolen vehicles, improperly parked vehicles, and others. Further, procedures are prescribed for the selection of franchised wreckers and storage areas, communications systems, and other related matters. Section 12 of the Ordinance is a severability clause, and reads as follows:

involved in the accident or an officer at the scene of the accident. Such unauthorized response is declared a traffic hazard as harmful to the health, welfare and safety of the people of the City, and, as such, those wreckers so responding are declared public nuisances and subject to impoundment procedures, upon order of the officer at the scene of the accident."

"If a provision of this ordinance is held invalid, the invalidity shall not affect the other provisions or application of this ordinance which can be given effect without the invalid provision or application, and to this end, the provisions of this ordinance are declared severable."

Clint's is an Indianapolis firm engaged in the business of towing vehicles. On January 15, 1979, a Clint's employee was arrested and charged with violating Sec. 29-375(1) for unlawfully soliciting towing work at the scene of an accident to which he had not been summoned and upon which he had happened while en route to his place of employment. The employee, Powell, radioed Clint's, notified it of the accident, and was instructed to inquire of the parties whether towing services were needed. Powell approached one of the parties, conversed with her, and handed her a business card; she instructed Powell to tow her car away. A police officer then arrived on the scene and manually indicated that Powell should leave; Powell ignored him. The officer then told Powell to leave. Powell radioed Clint's and was instructed to proceed with the tow. As Powell approached the vehicle again, the officer informed him that he would be arrested if he proceeded further. Despite the admonition, Powell continued toward the vehicle. He was arrested and his vehicle was impounded.

Clint's initiated the instant action on January 17, 1979, by filing in the Marion Circuit Court a complaint seeking a temporary restraining order, preliminary and permanent injunctive relief, and damages, contending that Sec. 29-375(1) is unconstitutional. A temporary restraining order issued that day; following a hearing, a preliminary injunction issued January 26, 1979. The case was subsequently venued to the Boone Circuit Court, which ultimately entered partial summary judgment in favor of Clint's, declaring the Ordinance unconstitutional in its entirety, unconstitutional as applied to Clint's, and permanently enjoining its enforcement. This appeal ensued.

ISSUES

The City presents ten issues for our review which we have consolidated and rephrased as follows:

I. Whether the trial court erred in finding the Ordinance to be unconstitutional, in particular:

(A) whether the Ordinance imposes an unconstitutional infringement upon Clint's right to do business and is an invalid exercise of the City's police power;

(B) whether the Ordinance violates Clint's freedom of speech;

(C) whether the Ordinance is unconstitutionally vague and overbroad;

(D) whether the Ordinance violates equal protection;

II. Whether the trial court erred in finding the Ordinance unconstitutional as applied to Clint's;

III. Whether the Ordinance conflicts with or is preempted by state legislation IV. Whether the trial court erred in invalidating the entire Ordinance, whereas only one section thereof was at issue.

DISCUSSION AND DECISION

The decretal portion of the trial court's judgment reads as follows:

"IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:

1. That [the Ordinance], adopted on April 24, 1978, is unconstitutional.

2. That [the Ordinance], adopted on April 24, 1978, is unconstitutional as applied to Plaintiff, Clint's Wrecker Service, Inc.

3. That the City of Indianapolis from this date forward is hereby permanently restrained and enjoined from enforcing the provisions of [the Ordinance]."

In addition, several of the court's Conclusions of Law reflect the determination that the Ordinance was found to be invalid on non-constitutional grounds. Certain of those grounds would constitute independent bases for invalidating the Ordinance, and since the City properly challenges the correctness of those conclusions, we consider the non-constitutional grounds as well, despite the fact that they are not included in the decretal portion of the judgment.

Local ordinances enacted pursuant to a proper delegation of power stand on the same footing as acts of the legislature. Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. City of Hartford City, (1908) 170 Ind. 674, 85 N.E. 362. Statutes are presumptively constitutional until clearly proven otherwise. Moten v. State, (1978) 269 Ind. 309, 380 N.E.2d 544. Ordinances, too, are presumptively valid. State ex rel. Miller v. McDonald, (1973) 260 Ind. 565, 297 N.E.2d 826; State ex rel. McGonigle v. Madison Circuit Court, Smith, Judge, (1963) 244 Ind. 403, 193 N.E.2d 242. The burden of overcoming the presumption is on the challenger, and all doubts are to be resolved against him. Sidle v. Majors, (1976) 264 Ind. 206, 341 N.E.2d 763. Ordinances, like statutes, are to be construed, if possible, so as to render them valid. Smith v. City of New Albany, (1910) 175 Ind. 279, 93 N.E. 73; Schmidt v. City of Indianapolis, (1907) 168 Ind. 631, 80 N.E. 632.

Thus, Clint's bore a heavy burden below. However, the City, as appellant, bears a considerable burden herein in demonstrating grounds warranting reversal.

"It has been held many times that all reasonable presumptions are indulged on appeal in favor of the rulings and judgments of the trial court, that the record must exhibit the errors for which the reversal is sought, and that a court of appeals will not presume anything in favor of appellant to sustain his alleged errors."

First National Bank of Mishawaka v. Penn-Harris-Madison School Corp., (1970) 255 Ind. 403, 406, 265 N.E.2d 16, quoted in Reilly v. Robertson, (1977) 266 Ind. 29, 38, 360 N.E.2d 171. The favorable presumptions we accord the trial court's judgment, however, will not remedy any deficiencies, in the court below, in Clint's showing of unconstitutionality. State v. Nixon, (1979) Ind., 384 N.E.2d 152, 155.

Issue I. Constitutionality of Ordinance

We initially observe that in its appellee's brief Clint's argues that the Ordinance violates U.S.Const. art. I, Sec. 10, cl. 1, which prohibits states from passing laws that impair the obligation of contracts, and U.S.Const. art. I, Sec. 8, cl. 3, the commerce clause. Nothing in the trial court's findings of fact, conclusions of law, or judgment reflects that the court found the Ordinance to be unconstitutional on those grounds. ² We therefore do not consider Clint's arguments concerning those allegations.

A. Asserting that among the unalienable rights to life, liberty, and the pursuit of happiness is the right to pursue the lawful occupation of towing vehicles upon the streets of Indianapolis, Clint's argues ³ that the prohibition against the solicitation of towing business at the scene of a vehicular accident imposed by Sec. 29-375(1) constitutes an unreasonable and unnecessary restraint upon that right, and is not justified as an exercise of the City's police power. Clint's argues that it must be allowed to use the City's streets unfettered by governmental regulation in order to ply its trade and that the City's action in prohibiting solicitation at...