Hanley v. State
| Decision Date | 20 May 1955 |
| Docket Number | No. 29170,29170 |
| Citation | 126 N.E.2d 879,234 Ind. 326 |
| Parties | Harry G. HANLEY, Appellant, v. STATE of Indiana, Indiana Department of Conservation, Doxie M. Moore, as Director of the Indiana Department of Conservation, Harley G. Hook, as Director of the Division of Fish and Game of the Department of Conservation, State of Indiana, Veterans' State Service Department, Harvey Stout, as Director of Veterans' State Service Department, Appellees. |
| Court | Indiana Supreme Court |
Symmes, Fleming & Symmes, Charles W. Symmes, Lewis C. Bose and Waldo C. Ging, Indianapolis, for appellant.
Edwin K. Steers, Atty. Gen., Owen S. Boling and Harry E. Riddell, Deputy Attys. Gen., for appellees.
Ralph B. Gregg, Lawrence H. Hinds, Sheldon A. Key and Paul G.Jasper, Indianapolis, and William H. Wolf, Greenfield, for American Legion, as amicus curiae.
Jesse W. Peden, Indianapolis, for Disabled American Veterans-Department of Indiana, Inc., as amicus curiae.
William S. Mercuri, Indianapolis, for Veterans of Foreign Wars, Indiana, as amicus curiae.
The Indiana General Assembly in its 1945 Session passed an act which became law, one provision of which exempted former members of the armed services of the United States from paying any consideration for hunting and fishing licenses and providing they be admitted to that class free. The act reads as follows:
'(a) The director is hereby authorized and required to prescribe and furnish permits to hunt, trap and fish in this state to honorably discharged soldiers, sailors, marines, nurses, or women's corps of the army, navy and marines, who served in the army, navy, or marine corps of the United States during the Civil War, the War with Spain, the Philippine Insurrection, the service on the Mexican Border during 1916 and 1917, the World War I or the World War II, who, at the time of application for such permit, and who for a full period of six months next preceding the date of application, where [were] bona fide residents of this state.
* * *.' § 11-1424, Burns' 1953 Cum.Supp., Acts 1945, ch. 93, § 1, p. 209.
The appellant, a non-veteran, brought this action in Marion County, venued to Hancock County, praying in an amended complaint a declaratory judgment that the legislative enactment is void as violative of Art. 1, § 23 of the Constitution of the State of Indiana, which reads 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.' $The appellant also contends in his said complaint that the act involved also violates Section 1 of the Fourteenth Amendment of the Constitution of the United States, which provides:
'* * * No State shall make or enforce any law which shall * * * deny to any person within its jurisdiction the equal protection of the laws.'
The trial court held in favor of the defendant-appellees and against the plaintiff-appellant, whereupon plaintiff-appellant, upon overruling of his new trial motion, prayed and perfected this appeal. His assignment of error and briefs, as well as the briefs of several organizations of veterans, raise the single question of whether the act involved violates the Indiana and United States Constitutions, or either of them.
This court, by an opinion written by Gilkison, C. J., prior to his untimely death and concurred in by three other then Judges of this court (with dissent by Emmert, J.), held that the act involved is unconstitutional and reversed the judgment below for that reason.
Appellees filed a petition for rehearing and, since a majority of the present Judges had assumed the bench subsequent to the judgment of reversal, a re-argument was held and the cause is now ready for final decision on the petition for rehearing filed by appellees. The question now before this court is the same one which confronted Chief Justice Gilkison and was decided by him and three of his then associate Judges.
We recognize the rule that in passing on the question of whether an act is constitutional we may indulge in presumptions in favor of its validity, and we have applied that rule in our present consideration. State ex rel. Harrison v. Menaugh, 1898, 151 Ind. 260, 266, 51 N.E. 117, 51 N.E. 357, 43 L.R.A. 408 418; Kirtley v. State, 1949, 227 Ind. 175, 179, 84 N.E.2d 712. The right to legislate is vested exclusively in the General Assembly. Art. 4, § 1 of the Constitution of the State of Indiana. Under its broad police powers to protect the public health, morals, order, safety and welfare, the General Assembly can go to substantial lengths in ordinary affairs of life and conduct. However, these legislative rights are always limited by the limitations of the state and federal constitutions. Kirtley v. State, 1949, 227 Ind. 179, 84 N.E.2d 712, supra; State ex rel. Harrison v. Menaugh, 1898, 151 Ind. 260, 51 N.E. 117, 357, 43 L.R.A. 408, 418, supra; Townsend v. State, 1897, 147 Ind. 624, 47 N.E. 19, 37 L.R.A. 294; Weisenberger v. State, 1931, 202 Ind. 424, 175 N.E. 238; Bedford Quarries Co. v. Bough, 1907, 168 Ind. 671, 80 N.E. 529, 14 L.R.A.,N.S., 418.
Appellees, supported by the Indiana Department of the American Legion, Veterans of Foreign Wars District of Indiana, and Disabled American Veterans, Department of Indiana, Inc., each of which has filed a brief on the petition for rehearing as amicus curiae, have in such briefs stressed the proposition that a classification of veterans for special reward or consideration is constitutional and proper. We have no quarrel with the statement that in many cases the classification of veterans for special rewards or consideration for services rendered their country is constitutional and proper. Military service does furnish a proper basis for legislative classification but only when confined within the limits of the Constitution.
It is of great importance to the peace and prosperity of the state and nation that men and women should be returned from military service in an orderly way to self-supporting occupations, and that those things of which they were deprived by reason of such service be restored to them in as great a measure be possible. However, military service does not relieve a man or woman veteran from the restrictions and limitations imposed upon all the citizens of the sate by our Constitution.
Indiana and practically all other states in the union from which citizens have enlisted or been drafted for military service have given to returned veterans, both men and women, bonuses and other gratuities and preferential treatment as compensation or rewards for services rendered. Such considerations have been valid and proper because the acts granting them did not exceed those constitutional limitations established for the welfare and protection of all of the people. The legislature, when granting compensation or special considerations to veterans, is required to act within the limits of the Constitution.
There is a clear distinction between the case at bar and those cases which involve the granting of bonuses or other considerations as compensation or rewards for services rendered. The whole purpose of such acts is to assist the veteran in readjusting himself to civilian life. The purpose of the act here in question has been concisely stated by appellees themselves in their brief as follows:
'The statute in question clearly shows that its purpose is for the protection of fish and game for the benefit of the citizens of the state.'
The title of the Act, ch. 21, Acts. 1937, as amended, of which the section here under consideration is a part, is as follows:
'An act concerning fish, frogs, mussels, game, wild birds, and wild animals, and offenses relating thereto.'
Section 10, Acts 1937, ch. 21, as amended, being § 11-1401, Burns' 1942 Replacement, provides:
'It shall be unlawful for any person to fish in, or take, catch, or attempt to take or catch, any fish from the waters of this state, or to hunt, shoot, take, pursue, or trap any wild bird or wild animal in this state, without first procuring a license therefor, as in this act provided, unless such person shall be by this act specifically exempt from so doing.'
To show the persistent legislative intent zealously to guard the state's wild life it is only necessary to examine certain conservation statutes beginning as early as 1881, excerpts of which are as follows:
'It shall be the duty of said Commissioner to examine the various lakes, rivers, streams and water courses in this State, and ascertain whether they can be rendered more productive in the supply of fish; also what measures are desirable and expedient to effect this object either in propagating and protecting the fish that at present frequent the same, or in the selection and propagation of other species of fish therein (or both); said Commissioner shall also inquire into and test the best modes of the artificial propagation of fish in the various waters of the State, and shall procure and superintend the procuring of the fish, fish eggs or spawn, as shall be necessary for said waters and the propagation of the same therein.' Acts 1881, ch. 53, § 2, p. 516, R.S.1881, § 5725.
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