Hammer v. State

• Decision Date: 23 November 1909
• Docket Number: No. 21,406.,21,406.
• Parties: HAMMER v. STATE.
• Court: Indiana Supreme Court

173 Ind. 199

89 N.E. 850

HAMMER

v.STATE.

No. 21,406.

Supreme Court of Indiana.

Nov. 23, 1909.

Appeal from Criminal Court, Marion County; James A. Pritchard, Judge.

Charles L. Hammer was convicted of unlawfully wearing the badge of a secret society, and he appeals. Affirmed.G. R. Estabrook and Elmer Marshall, for appellant. James Bingham, A. G. Cavins, E. M. White, and W. H. Thompson, for the State.

MYERS, J.

Appellant was charged July 22, 1908, by affidavit with unlawfully wearing the badge and emblem adopted by an incorporated secret society of the state, he not at the time being a member of the society, under the provisions of the act of March 7, 1891 (Acts 1891, p. 340, c. 132), and was convicted and fined.

Appellant's contention is that this act was repealed by the Criminal Code of 1905 (Acts 1905, pp. 584-758, c. 169), by being omitted from that act, and that the act of 1891 is obsolete; but, if not, it is unconstitutional as being in violation of section 1, art. 14, of the amendments to the federal Constitution, “that no state shall make or enforce any law which shall abridge the privileges, or immunities of citizens of the United States,” and section 4 of the Bill of Rights of the state Constitution, that “no preference shall be given by law to any creed,” and section 23, that “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,” and section 22, art. 4, of the Constitution, that “the General Assembly shall not pass special laws,” etc. The sufficiency of the affidavit is the only question properly presented. Any question depending for presentation upon the motion for a new trial was waived by filing and procuring a ruling on a motion in arrest of judgment before filing the motion and causes for a new trial; there being no showing of a cause not existing and not known when the motion in arrest was filed. Yazel v. State, 170 Ind. 535, 84 N. E. 972, and cases cited.

The point made by appellant that the act of 1891 is not in force, because it is omitted from the Laws of 1905, was repealed by that act as being within its purview has been decided adversely to appellant. Clark v. State, 171 Ind. 104, 84 N. E. 984. It is not pretended that the subject is embodied in any way in the act of 1905, and we are unable to discover any provision which would bring the statute of 1891 within its purview, and none is pointed out or suggested.

Both the fourteenth and fifteenth amendments to the federal Constitution are held to operate on state action, and not on individual action, and the privilege and immunity clause applies to “privileges and immunities arising out of the nature and essential character of the federal Government, and granted or secured by the Constitution” and “the provision of the federal Constitution is satisfied if all persons similarly situated are treated alike in privileges conferred or liabilities imposed.” Hodges v. United States, 203 U. S. 1, 27 Sup. Ct. 6, 51 L. Ed. 65;Field v. Barber Co., 194 U. S. 618, 24 Sup. Ct. 784, 48 L. Ed. 1142;Duncan v. Missouri, 152 U. S. 377, 14 Sup. Ct. 570, 38 L. Ed. 485. In the first above case there was a dissenting opinion, but in the extended review of the cases by Mr. Justice Harlan there is no indication of any dissent from the proposition that the immunity or privilege must be such as is derived from, or dependent upon, the Constitution. “Immunity” and “privilege” are synonymous terms; a right conferred peculiar to some individual or body; a favor granted; a special privilege; in short, an affirmative act of selection of special subjects of favors not enjoyed by citizens in general under the federal Constitution or laws. Long v. Converse, 91 U. S. 105, 23 L. Ed. 233;Slaughterhouse Cases, 16 Wall. 36, 21 L. Ed. 394; Ex parte Levy, 43 Ark. 42, 51 Am. Rep. 550;Lawyers' Tax Cases, 55 Tenn. 565;Harrison v. Willis, 54 Tenn. 35, 19 Am. Rep. 604;Lonas v. State, 50 Tenn. 287;International Trust Co. v. American, etc., Co., 62 Minn. 501, 65 N. W. 78, 632;Dike v. State, 38 Minn. 366, 38 N. W. 95;Douglass v. Stephens, 1 Del. Ch. 465;Van Valkenburg v. Brown, 43 Cal. 43, 13 Am. Rep. 136; North River Co. v. Livingston, 1 Hopk. Ch. (N. Y.) 170; Territory v. Stokes, 2 N. M. 161; State v. Betts, 24 N. J. Law, 555; Guthrie Daily v. Cameron, 3 Okl. 677, 41 Pac. 635.

It can scarcely be urged that the right to wear a badge or emblem of a society of which he is not a member is a right conferred by the Constitution or laws of the United States, and certainly is not. The statute confers no right, exemption, or privilege on any class or individual to do a thing denied to others as of common right, except it may be said negatively to authorize one who is a member of the society to wear a badge if he chooses, but prevents all who are not from doing so. The Constitution and laws of the United States do not furnish or guarantee, nor can he under them claim, the right as a privilege, or that he shall be immune from regulation by the state so far as the federal Constitution is concerned. It is simply the denial by the state under its police power of a claim of a right by appellant; the negation of a claim, and a matter of purely state concern. In the Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. 18, 27 L. Ed. 835, it was held that the fourteenth amendment did not control the conduct of private persons, but of the states, and was not applicable to a regulation by a private person for the conduct of his business, though of a quasi public character. And it is held that the states may provide for separate schools, separate locations in theaters, and separate cars for white and colored people. Cisco v. School Board, 161 N. Y. 598, 56 N. E. 81, 48 L. R. A. 113;Chilton v. St. Louis Ry. Co., 114 Mo. 88, 21 S. W. 457, 19 L. R. A. 269;Younger v. Judah, 111 Mo. 303, 119 S. W. 1109, 16 L. R. A. 558, 33 Am. St. Rep. 527. As appellant was charged with unlawfully wearing a “badge or emblem,” it is unnecessary that we should examine the statute as to any other of the prohibited acts; for, even if the act were unconstitutional as to them, it would not be considered, as being unnecessary to the decision of this cause, if the act is separable, and the clause under which appellant is charged is valid (Hart v. Smith, 159 Ind. 182, 64 N. E. 661, 58 L. R. A. 949, 95 Am. St. Rep. 280), as he could only present a question which invades his rights (Knight & Jillson Co. v. Miller, 87 N. E. 823;Harlin v. Schafer, 169 Ind. 1, 81 N. E. 721;Wilkison v. The Board, 158 Ind. 1, 62 N. E. 481;State v. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313;Wagner v. The Town, 118 Ind. 114, 20 N. E. 706). If the act is valid in part and separable, and capable of being executed, the invalid part may be disregarded. State v. Barrett, 87 N. E. 7;Smith v. McClain, 146 Ind. 77, 45 N. E. 41;City v. Bieler, 138 Ind. 30, 36 N. E. 857;Henderson v. State, 137 Ind. 552, 36 N. E. 257, 24 L. R. A. 469. Section 4, art. 1, State Const., provides that “no preference shall be given by law, to any creed, religious society or mode of worship; and no man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry, against his consent.” This section is one of seven, in successive order, all addressed to the one subject-matter, the complete divorcement of state and...