Medias v. City of Indianapolis

• Decision Date: 28 November 1939
• Docket Number: 27263.
• Citation: 23 N.E.2d 590,216 Ind. 155
• Parties: MEDIAS et al. v. CITY OF INDIANAPOLIS et al., etc.
• Court: Indiana Supreme Court

23 N.E.2d 590

216 Ind. 155

MEDIAS et al. v. CITY OF INDIANAPOLIS et al., etc.

No. 27263.

Supreme Court of Indiana

November 28, 1939

Appeal from Hancock Circuit Court; John B. Hinchman, Judge.

Faust Faust, Medias & Faust, of Indianapolis, for appellants.

E H. Knight, Michael B. Reddington, and Oscar C. Hagemier, all of Indianapolis, and Arthur C. Van Duyn, of Greenfield, for appellees.

SHAKE Chief Justice.

The cities and towns act of 1905 authorizes cities to license tax, regulate, suppress, and prohibit pawnbrokers and makes them subject to police supervision and inspection. Acts of 1905, Ch. 129, §§ 53 and 164, §§ 48-1407 and 48-6110, Burns' 1933, Secs. 11432 & 11482, Baldwin's 1934. Acting under this authority the common council of the city of Indianapolis, on January 4, 1926, adopted its ordinance 121, 1925, regulating pawnbrokers, the same being §§ 615 to 625, inclusive, of the Municipal Code of Indianapolis, 1925. Section 618 of said ordinance undertook to provide that the place of business of any pawnbroker should not be kept open between 7:00 o'clock p. m. on any day and 7:00 o'clock a. m. on the day following, with certain exceptions. In 1935 the General Assembly enacted a law entitled, 'An Act concerning pawnbrokers, and declaring an emergency,' which became effective on May 1st of that year, being Ch. 195, Acts of 1935, § 18-3201 et seq., Burns' 1939 Pocket Supp., Sec. 13220-1 et seq., Baldwin's May 1935 Supp.

Appellants began this action on August 5, 1937. This complaint was brought under the Uniform Declaratory Judgments Act (Acts 1927, Ch. 81, § 3-1101 et seq., Burns' 1933, Sec. 438 et seq., Baldwin's 1934) and alleged that § 618 of ordinance 121, 1925, was vitiated by the act of 1935 and that said action was in contravention of the State and Federal Constitutions.

On November 15, 1937, and during the pendency of this action below, the common council adopted its ordinance 75, 1937, amending §§ 618, 620, 621, 622, 624, and 625 of ordinance 121, 1925, and adding thereto a new section numbered 624 1/2. Appellants thereupon filed a supplemental complaint, by which they attacked the validity of the ordinance, as amended, in its entirety. This appeal is from a judgment in which the court below found that§§ 618 and 624 1/2 of said amended ordinance are null and void and that §§ 615, 616, 617, 619, 620, 621, 622, 623, 624, and 625 are each valid and effective and supplemental to the act of 1935 and not in conflict therewith. No cross-errors have been assigned with respect to §§ 618 and 624 1/2 and that part of the judgment referring to them is not open to review. It is the contention of the appellants that the Pawnbroking Law of 1935 repealed by implication the provisions of the cities and towns act of 1905 relating to that subject; that the sections of the amended city ordinance found valid by the trial court are in conflict with the act of 1935; and that said sections are so discriminatory, unreasonable, arbitrary, and oppressive as to deny due process.

The Pawnbroking Law of 1935 and the amended city ordinance are too lengthy to be quoted in full here. A brief summary of their contents will suffice for the purposes of this opinion. Said act of the Legislature requires every person engaging in business as a pawnbroker to be licensed by the Department of Financial Institutions. Said department is required to investigate the character, fitness, and responsibility of all applicants for a license and when such license is issued it shall authorize the holder to engage in such business, subject, however, to the right of the department to cancel the same for cause, after hearing. An annual license fee of $100 and a bond in the sum of $1,000 is required. The department is empowered to make orders, rules, regulations, and findings necessary for the proper conduct of said business, and it may examine and investigate the business, loans, books, and records of every licensee. Every pawnbroker must keep a book wherein is recorded in ink a record of each loan made by him, showing, among other things, the date of the transaction, the amount of the loan, the name and address of the pledgor, and the article pledged. Said record must also fully disclose the details of the financial transaction relating to such pledge. The pawnbroker must require the pledgor to write his name and address in said book. By regulation number 1, promulgated on October 31, 1935, every pawnbroker is also required to take a bill of sale from the seller for every article purchased in the conduct of said business, showing the date and consideration and a description of the article purchased. Such bill of sale must be signed by the seller and disclose his address. The act regulates the rate of interest that may be charged for loans, the disposition of unredeemed pledges, and the kind of advertising that may be carried on. Pawnbrokers are prohibited from accepting pledges or purchasing articles from minors, thieves, receivers of stolen property, or persons whom they have reason to believe are such. Violation of certain sections of the act is made a misdemeanor, punishable by fine or imprisonment or both.

The sections of the amended city ordinance held valid by the trial court require every person engaged in the business of pawnbroking in the city of Indianapolis to have a license issued by the city controller, for which an annual fee of $100 is exacted. The application for a license must bear the certificate of at least three resident freeholders of the city that the applicant is a person of good moral character. The pawnbroker must keep a record showing the name, residence, age, color, height, weight, complexion, and style of beard and dress of every person making such pledge or sale. In addition, a full description of every article received in the course of such business shall be taken. The ordinance prescribes certain card forms applicable to different types of property sold or pledged to a pawnbroker. The licensee is required to enter the above data on the appropriate card and to take the signature and thumb print of the pledgor on the back thereof. All such cards must be delivered to the chief of police not later than noon on the day following any such transaction. All pledged and purchased articles must be retained by the pawnbroker for at least 96 hours from the time of reporting the transaction to the chief of police. The books and records of the pawnbroker are made subject to reasonable inspection by police officers. It is made unlawful to accept a pledge or to receive property from an intoxicated person, as well as from a minor, thief, associate of thieves, or one known or suspected to be the receiver of stolen property. Violation of the ordinance is punishable by fine of not less than five nor more than $300, to which may be added imprisonment not exceeding 30 days.

Appellants are licensed pawnbrokers under the state law; they do not hold a city license. By their complaint they seek a judicial declaration to the effect that they are not required to have the city license to carry on their business. The propositions asserting the invalidity of the ordinance are not as succinctly stated as they might be, but we believe appellants' contentions may be fairly stated as follows: (1) That the power of the city to regulate pawnbrokers, if any such exists, must be found in some legislative grant and that, conceding that such authority existed under the cities and towns act of 1905, the same was withdrawn by the enactment of the Pawnbroking Law of 1935, since the former was impliedly repealed by the latter; (2) that by its terms the license required by the Pawnbroking Law 'shall authorize the applicant to engage in the business of pawnbroking,' so that the imposition of another license by the municipality is inferentially forbidden; (3) that the requirements of the ordinance in excess of those of the state law, whereby the licensee, under the former, must establish good character by the certificate of three freeholders; keep records not necessary under the latter; supply information to the chief of police; and hold purchased and pledged articles for 96 hours thereafter, etc., are in conflict with the terms of the act; and (4) that the provisions of the ordinance requiring the licensee to take the signature and thumb print of every person who pledges or sells articles to him is arbitrary and unreasonable.

While the repeal of statutes by implication is recognized, this is not favored and that conclusion will not be indulged unless the later act is so repugnant to the earlier as to render the repugnancy or conflict between them irreconcilable. A court will always, if possible, adopt that conclusion which, under the particular circumstances in a given case, will permit both laws to stand and be operative. Board of Com'rs v. Garty, 1903, 161 Ind. 464, 68 N.E. 1012; Freyermuth v. State ex rel. Burns, 1936, 210 Ind. 235, 2 N.E.2d 399.

Since 1881 we have had in this state a statute which reads as follows: 'Whenever any act is made a public offense against the state by any statute and the punishment prescribed therefor, such act shall not be made punishable by any ordinance of any incorporated city or town; and any ordinance to such effect shall be null and void, and all prosecutions for any such public offense as may be within the jurisdiction of the authorities of such incorporated cities or towns, by and before such authorities, shall be had under the state law only * * *.' § 1640, Rev.St.1881, § 9-2402, Burns' 1933, Sec. 2087, Baldwin's 1934. This act was held constitutional during the year of its adoption. Jett v. City of Richmond, 1881, 78 Ind. 316. The Legislature must be presumed to have known these facts when the act of 1935 was passed.

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