State ex rel. Mavity v. Tyndall
| Decision Date | 10 October 1947 |
| Docket Number | 28287. |
| Citation | 74 N.E.2d 914,225 Ind. 360 |
| Parties | STATE et rel. MAVITY v. TYNDALL et al. |
| Court | Indiana Supreme Court |
Appeal from Marion Superior Court, No. 1; John L. Niblack judge.
Earl J. Wynn, of Indianapolis, for appellant.
Arch Bobbitt and Henry B. Krug, both of Indianapolis, for appellees.
This is a second appeal. The former, in which the lower court was reversed, is reported in 224 Ind. 364, 66 N.E.2d 755. After the reversal plaintiff filed an amended complaint and later filed a second amended complaint. To the latter the court sustained a joint and several demurrer and the plaintiff refusing to plead over, judgment was rendered against him. The appeal is from this judgment.
The second amended complaint contains substantially the same averments as the complaint in the former appeal except in the former appeal there was an averment in the complaint that plaintiff's photograph with number across the breast thereof, his finger prints, etc., were put or intended to be put in a 'rogue's gallery' which it was averred the Indianapolis Police Department maintained. This averment is omitted from the complaint now before us. Since in the former appeal the cause was reversed solely because of the presence of this averment in the complaint, it appears that many of the questions attempted to be raised are res adjudicata, and that the one proposition upon which the reversal was based has been purposely abandoned by appellant.
The rule is quite general 'that when a case has been once taken to an appellate court, and its judgment obtained on points of law involved, such judgment, however erroneous becomes the law of the case, and can not on a second appeal be altered or changed.' Dodge v. Gaylord et al., 1876, 53 Ind. 365, 372, 373; Cohoon v. Fisher, 1896, 146 Ind. 583, 585, 586, 44 N.E. 664, 45 N.E. 787, 36 L.R.A. 193; Rooker v. Fidelity Trust Co., 1931, 202 Ind. 641, 653, 177 N.E. 454; Terre Haute & I. R. Co. v. Zehner, 1902, 28 Ind.App. 229, 231, 62 N.E. 508; Mertz, Adm'r, v. Wallace, 1929, 93 Ind.App. 289, 299, 169 N.E. 333.
The opinion in the former appeal is an exhaustive discussion of the law on the questions then before the court and we adopt it as the 'law of the case' on the same matters presented by this appeal, binding alike on the parties and the court. Cohoon v. Fisher, supra.
In the second amended complaint there is an averment that the Acts of 1945, page 1622 et seq., § 47-846 et seq., Burns 1940 Repl. (Supp.), and particularly § 47-857 et seq., under which it is alleged defendants purport to hold plaintiff's photographs, finger prints, etc., is unconstitutional in that it is in violation of the Fourteenth Amendment of the Constitution of the United States and of Art. 1, §§ 1 and 21 of the Indiana Constitution. That part of the Fourteenth Amendment with which it is contended this statute conflicts is as follows: 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any States deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' Appellant has presented neither reasons or authorities indicating that the statute complained of in any way attempts to abridge the privileges or immunities of citizens and we know of none. There is nothing in this statute conflicting with 'due process' or 'equal protection of the laws' as provided for by the Fourteenth Amendment.
Art. 1, § 1 of the Indiana Constitution contains nothing that the statute complained of could conflict with. Among other things it provides: 'that all power is inherent in the People; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being * * *.'
Art 1, § 21 provides: It has been said that it is a duty of the courts to uphold the acts of the legislature if it can possibly be done, without doing violence to the constitution, and in doing so, every reasonable presumption must be indulged in favor of the legality of the act. Morgan v. State, 1913, 179 Ind. 300, 303, 101 N.E. 6. Granting that the citizen has a property right in his finger prints, and picture and that he has a right to privacy and protection as guaranteed him by the constitutional provision quoted, these rights must be made to harmonize with the rights of the people collectively to life, liberty, safety and the pursuit of happiness likewise guaranteed by the constitution. Between these rights there is sometimes an apparent conflict. It is a duty of government in so far as possible to avoid this conflict and to provide a way of life and safety that will protect both rights. In the accomplishment of this end it is possible that each may have to yield to some extent. The general assembly has a duty to enact laws providing for the general welfare and safety of the people within the state, and such laws, if reasonable, will not be in conflict with guaranteed rights of the individual. Property...
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