Hanley v. State, 29170

• Citation: 234 Ind. 326,123 N.E.2d 452
• Decision Date: 21 December 1954
• Docket Number: No. 29170,29170
• 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. Hoak, 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: Supreme Court of Indiana

Page 452

123 N.E.2d 452

234 Ind. 326

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. Hoak, 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.

No. 29170.

Supreme Court of Indiana.

Dec. 21, 1954.

Dissenting Opinion Dec. 27, 1954.

Symmes, Fleming & Symmes, Charles W. Symmes, Indianapolis, Waldo C. Ging, Greenfield, Lewis C. Bose, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Harry E. Riddell, Deputies Atty. Gen., for appellee.

GILKISON, Chief Justice.

On May 27, 1953, appellant filed his complaint in Marion Superior Court, Room 3, against appellees, asking a declaratory judgment that section 11-1424, Burns' 1942 Repl.Cumulative Supplement, be declared unconstitutional. Upon motion properly made the venue of the cause was changed to the Hancock Circuit Court. In due time a second amended complaint was filed, and the same was put at issue by answer.

Upon trial there was a finding for appellees, that Sec. 11-1424, Burns' 1942 Repl.Cumulative Supplement is constitutional, that plaintiff take nothing by his complaint, and that defendants recover costs. Judgment was rendered accordingly. A motion for new trial was overruled and the appeal was perfected.

No procedural questions are presented. All parties direct their efforts to the one question: Is the involved statute constitutional?

That part of the statute particularly questioned is as follows:

'11-1424. Persons to whom issued--Forms--How issued--Duty of clerks--Expiration--Application--Discharge Papers--Duty of permittee--Unlawful acts.--(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 1947, 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 (6) months next preceding the date of application, where (were) bona fide residents of this state.

(b) The form of such permits and the application therefor shall be prescribed by the director. Such permits shall be issued in each county of the state by the clerk of the circuit court, without charge to permittee, only to such soldiers, sailors, marines, nurses, and women's corps of the army, navy and marines, above mentioned who are, at the time of making application, bona fide residents of such county; except that in the county of Marion, such permits shall be issued only by the director, without charge to permittee, to said soldiers, sailors, marines, nurses, and women's corps of the army, navy and marines only who are bona fide residents on that county.' Acts 1945, Ch. 93, p. 209.

The remaining subsections (c), (d), (e) and (f) are questioned, but the reasons therefor are contained in subsections (a) and (b).

It is appellant's contention that the involved statute is in conflict with Article 1, Sec. 23 of the Constitution of Indiana, providing:

'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.'

It is further contended that the statute is in conflict with Sec. 1. of the Fourteenth Amendment of the Constitution of the United States in so far as it provides:

'* * * No state shall make or enforce any law which shall * * * deny to any person within its jurisdiction the equal protection of the laws.'

In determining the constitutionality of the statute involved, we will indulge all reasonable presumptions in its favor. State ex rel. Harrison v. Menaugh, 1898, 151 Ind. 260, 266, 51 N.E. 117, 357, 43 L.R.A. 408, 418; Townsend v. State, 1897, 147 Ind. 624, 47 N.E. 19, 37 L.R.A. 294; Kirtley v. State, 1949, 227 Ind. 175, 179, 84 N.E.2d 712.

Therefore, the burden is upon the attacker, in this case the appellant, to overcome the presumption noted. Weisenberger v. State, 1931, 202 Ind. 424, 431, 175 N.E. 238.

The State contends that the involved statute is a proper exercise of the State police power by the legislature. While much evidence was heard by the trial court, designed to show loss of revenues to the State and incidentally to its Department of Conservation by reason of this law, we do not believe this evidence was required in this case to determine the issue presented by the complaint and answer. It has been well stated that 'The general rule is that the federal or state constitution provides the only standard for determining the validity of a statute.' The court will 'consider only the statute upon which the charge is founded, and the sections of the state constitution with which it is claimed to be in conflict.' Kirtley v. State, 1949, 227 Ind. 175, 180, 84 N.E.2d 712, 714; Evansville & Ohio Valley Ry. Co. v. Southern Ind. R. E. Corp., 231 Ind. 648, 654, 109 N.E.2d 901; Weisenberger v. State, 1931, 202 Ind. 424, 431, 175 N.E. 238, supra, but "Invalidity [of the questioned statute] may be shown by things which will be judicially noticed". Weisenberger v. State, supra. Weaver v. Palmer Bros. Co., 1926, 270 U.S. 402, 409, 46 S.Ct. 320, 70 L.Ed. 654. See also Quong Wing v. Kirkendall, 1911, 223 U.S. 59, 64, 32 S.Ct. 192, 56 L.Ed. 350, 352; Department of Insurance v. Schoonover, 1947, 225 Ind. 187, 190, 72 N.E.2d 747.

In Indiana, all legislative authority is vested in the General Assembly. Ind. Const. Art. 4, Sec. 1. The right to legislate is limited only by the restrictions expressly or impliedly imposed by the state constitution, the federal constitution and the laws and treaties made pursuant thereto. Kirtley v. State, 1949, 227 Ind. 179, 84 N.E.2d 712, supra; State ex rel. Harrison v. Menaugh, 1898, 151 Ind. 260, 266, 51 N.E. 117, 357, supra; Townsend v. State, 1897, 147 Ind. 624, 47 N.E. 19, supra; Weisenberger v. State, 1921, 202 Ind. 424, 175 N.E. 238, supra; Bedford Quarries Co. v. Bough, 1907, 168 Ind. 671, 674, 80 N.E. 529, 14 L.R.A.,N.S., 418.

It seems that the questioned statute grants privileges and immunities to one class of citizens, which upon the same terms do not equally belong to all citizens. The General Assembly may not lawfully enact such a law unless it is done in a valid exercise of the police power of the state. Classification may be made and valid laws may be enacted under the police power to protect the public health, public morals, public order, public safety or public welfare. Kirtley v. State, 1949, 227 Ind. 175, 181, 84 N.E.2d 712, supra; Department of Insurance v. Schoonover, 1947, 225 Ind. 187, 72 N.E.2d 747, supra; State Board of Barber Examiners v. Cloud, 1942, 220 Ind. 552, 567, 44 N.E.2d 972.

One question presented is: Is former military service a proper classification for a discrimination in legislation relating to taxation or licenses? This question has been answered by a text writer, thus:

'* * * In a majority of instances in which the question has been presented, exemption from the payment of occupation or license taxes solely on a basis of war service has been held to violate equality guaranties of the Federal and state Constitutions. In a few cases, however, such an exemption has been upheld as valid. Statutes exempting veterans from the payment of poll taxes, property taxes, and various other types of taxes or licenses have occasionally been sustained.' 12 Am.Jur. Constitutional Law, Sec. 501, p. 183 and many authorities there cited.

As supporting the majority rule see Marallis v. Chicago, 1932, 349 Ill. 422, 429, 182 N.E. 394, 83 A.L.R. 1222 and Annotation at page 1233 et seq. State v. Garbroski, 1900, 111 Iowa 496, 498, 82 N.W. 959, 56 L.R.A. 570, 82 Am.St.Rep. 524. Commonwealth v. Hana, 1907, 195 Mass. 262, 266, 81 N.E. 149, 11 L.R.A.,N.S., 799, 122 Am.St.Rep. 251, 11 Ann.Cas. 514, and authorities there cited; State v. Whitcom, 1904, 122 Wis. 110, 122, 96 N.W. 468; State v. Shedroi, 1903, 75 Vt. 277, 282, 54 A. 1081, 63 L.R.A. 179, 98 Am.St.Rep. 825.

Our court has consistently held that the means used by the General Assembly to protect the public health, morals, order, safety or welfare, must have some reasonable relation to the accomplishment of the end in view. Blue v. Beach, 1900, 155 Ind. 121, 131, 56 N.E. 89, 50 L.R.A. 64; Fairchild, Pros. Atty. v. Schanke, 1953, 232 Ind. 480, 488, 113 N.E.2d 159; Kirtley v. State, supra, 227 Ind. at page 181, 84 N.E.2d 712. If such a law is enacted by the legislature granting privileges or immunities to a class of a citizens and withholding the same from the others and the validity of the law is properly questioned, it then becomes the duty of the courts to review such legislation and determine whether it relates to and is appropriate to secure the object in view. In such an examination the court will look to the substance of the thing involved. Blue v. Beach, supra, 155 Ind. at page 131, 56 N.E. 89; Bruck v. State ex rel. Money, 1950, 228 Ind. 189, 198, 199, 91 N.E.2d 349.

To ascertain the purpose of conservation laws with respect to Indiana wildlife, we may look to the several laws enacted concerning it. In 1881 the legislature provided for the appointment of a Commissioner of Fisheries. Sec. 2, of that act defined the duties of the Commissioner thus:

'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...