Hammer v. The State

• Decision Date: 23 November 1909
• Docket Number: 21,406
• Citation: 89 N.E. 850,173 Ind. 199
• Parties: Hammer v. The State of Indiana
• Court: Indiana Supreme Court

89 N.E. 850

173 Ind. 199

Hammer v. The State of Indiana

No. 21,406

Supreme Court of Indiana

November 23, 1909

From Criminal Court of Marion County (37,384); James A. Pritchard Judge.

Prosecution by The State of Indiana against Charles L. Hammer. From a judgment of conviction, defendant appeals.

Affirmed.

G. R Estabrook and Elmer Marshall, for appellant.

James Bingham, Attorney-General, A. G. Cavins, E. M. White and W H. Thompson, for the State.

OPINION

Myers, J.

Under the provisions of the act of March 7, 1891 (Acts 1891, p. 340, §§ 2717, 2718 Burns 1908), appellant was, on July 22, 1908, charged, by affidavit, with unlawfully wearing the badge and emblem adopted by an incorporated secret society of the State, he at the time not being a member of the society, and was convicted and fined.

Appellant's contention is that this act was repealed by the criminal code of 1905 (Acts 1905, p. 584), by being omitted from that act, and that the act of 1891 is obsolete, and if not, it is unconstitutional, being in violation of the 14th amendment to the federal Constitution, which says that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," of article 1, § 4, of the state Constitution, which declares that "no preference shall be given, by law, to any creed," of article 1, § 23, of the state Constitution, which is as follows: "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 of article 4, § 22, of the state Constitution which says that "the General Assembly shall not pass local or 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 either of a cause not existing or not known when the motion in arrest was filed. Yazel v. State (1908), 170 Ind. 535, 84 N.E. 972, and cases cited.

The point made by appellant, that the act of 1891, supra, is not in force, because it is omitted from the act of 1905, supra, and was repealed by that act, as being within its purview, has been decided adversely to appellant. Clark v. State (1908), 171 Ind. 104, 84 N.E. 984. It is not pretended that the subject is embodied in the act of 1905, supra, and we are unable to discover any provision which would bring the act of 1891, supra, within its purview, and none is pointed out or suggested.

Both the 14th and the 15th amendments to the federal Constitution are held to operate on state actions, and not on individual actions, 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 (1905), 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65; Field v. Barber Asphalt Pav. Co. (1904), 194 U.S. 618, 24 S.Ct. 784, 48 L.Ed. 1142; Duncan v. Missouri (1894), 152 U.S. 377, 14 S.Ct. 570, 38 L.Ed. 485.

In the case of Hodges v. United States, supra, 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; and mean 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. Long v. Converse (1875), 91 U.S. 105, 23 L.Ed. 233; Slaughter-House Cases (1872), 83 U.S. 36, 16 Wall. 36, 21 L.Ed. 394; Ex parte Levy (1884), 43 Ark. 42, 51 Am. Rep. 550; Lawyers Tax Cases (1875), 64 Tenn. 565; Harrison, Pepper & Co. v. Willis (1871), 54 Tenn. 35; Lonas v. State (1871), 50 Tenn. 287; International Trust Co. v. American, etc., Trust Co. (1895), 62 Minn. 501, 65 N.W. 78, 632; Dike v. State (1888), 38 Minn. 366, 38 N.W. 95; Douglass v. Stephens (1821), 1 Del. Ch. 465; Van Valkenburg v. Brown (1872), 43 Cal. 43, 13 Am. Rep. 136; North River Steam Boat Co. v. Livingston (1824), Hopk. Ch. (N. Y.) 170; Territory v. Stokes (1881), 2 N.M. 161; State v. Betts (1854), 24 N.J.L. 555; Guthrie Daily Leader v. Cameron (1895), 3 Okla. 677, 41 P. 635.

It can scarcely be urged that the right to wear a badge or emblem of a society of which a person is not a member is a right conferred by the Constitution or laws of the United States. 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 members from doing so. The Constitution and laws of the United States do not furnish, nor guarantee such right, nor can a person under them claim that 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. It is the negation of a claim, and is a matter that concerns the State only.

In the Civil Rights Cases (1883), 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, it was held that the 14th 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 theatres, and separate cars for white and colored people. People, ex rel., v. School Board, etc. (1900), 161 N.Y. 598, 56 N.E. 81, 48 L.R.A. 113; Chilton v. St. Louis, etc., R. Co. (1893), 114 Mo. 88, 21 S.W. 457, 19 L.R.A. 269; Younger v. Judah (1892), 111 Mo. 303, 19 S.W. 1109, 16 L.R.A. 558, 33 Am. St. 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 it would be 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 [1902], 159 Ind. 182, 58 L.R.A. 949, 95 Am. St. 280, 64 N.E. 661.) He could only present a question which invades his rights. Knight & Jillson Co. v. Miller (1909), 172 Ind. 27, 87 N.E. 823; Harlin v. Schafer (1907), 169 Ind. 1, 81 N.E. 721; Wilkinson v. Board, etc. (1902), 158 Ind. 1, 62 N.E. 481; State v. Gerhardt (1896), 145 Ind. 439, 33 L.R.A. 313, 44 N.E. 469; Wagner v. Town of Garrett (1889), 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 (1909), 172 Ind. 169, 87 N.E. 7; Smith v. McClain (1896), 146 Ind. 77, 45 N.E. 41; City of Indianapolis v. Bieler (1894), 138 Ind. 30, 36 N.E. 857; Henderson v. State, ex rel. (1894), 137 Ind. 552, 24 L.R.A. 469, 36 N.E. 257.

Article 1, § 4, of the state Constitution 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 Church, and the language of the section itself indicates that as the object in view. The word "creed" has a definite meaning, as a formal declaration of religious belief. Hale v. Everett (1868), 53 N.H. 9, 16 Am. Rep. 82.

An examination of that instructive case discloses the close relation of Church and State, and the religious qualifications for participation in the affairs of government in the colonies and early states, even down to the adoption of the federal Constitution and the first amendment thereto when the constitutional separation was made, which continued to be adopted as all the new states came in. Our own constitutional provision was manifestly adopted with the ordinary and usual meaning of the word "creed," as applied to religious belief, and just as manifestly having no reference to any other subject. It had no reference to benevolent, philanthropic or fraternal organizations, secret or otherwise, even though of a moral character, and even though it had, the statute under consideration does not profess to...