W. A. Barber Grocery Co. v. Fleming
| Citation | 96 N.E.2d 108,229 Ind. 140 |
| Decision Date | 11 January 1951 |
| Docket Number | No. 28664,28664 |
| Parties | W. A. BARBER GROCERY CO., Inc., et al. v. FLEMING et al. |
| Court | Supreme Court of Indiana |
Anderson, Lesow & Gemmer, Dailey, Dailey & Lesh, all of Indianapolis, for appellants.
J. Emmett McManamon, Atty. Gen., Frank E. Coughlin, Deputy Atty. Gen., Harold V. Whitelock, Dep. Atty. Gen., Norman J. Beatty, Deputy Atty. Gen., for appellees.
This is an action brought by appellants seeking a declaratory judgment that chapter 258 of the Acts of 1949 be declared unconstitutional, and for an injunction against the enforcement thereof, and to declare the validity of chapter 169 of the Acts of 1949. Appellants' complaint was filed in three paragraphs, to each of which paragraphs appellees filed answer. The judgment of the trial court declared that chapter 169 of the Acts of 1949 is a valid amendatory measure of section 25, chapter 304, Acts of 1945; that section 1 of chapter 258, Acts of 1949, is invalid; that the remainder of chapter 258 is valid; and denied the injunction.
Appellants assign as error the overruling of their motion for a new trial, which presents only one question, that the decision of the court is contrary to law.
Chapter 169 of the Acts of 1949 was approved March 8, 1949, and became effective September 18, 1949. It amended section 25, chapter 304, of the Acts of 1945, concerning motor vehicles, trailers, and semitrailers. Section 1 of chapter 258 of the Acts of 1949 also sought to amend section 25 of chapter 304 of the Acts of 1945. Chapter 258 was approved March 10, 1949, and became effective January 1, 1950. Section 2 thereof sought to amend section 29 of chapter 304 of the Acts of 1945, and section 3 sought to amend section 64 of chapter 304 of the Acts of 1945.
Appellants brief their contentions by reference to each of the three paragraphs of complaint. We shall answer the contentions as raised by referring to the numbered paragraph of complaint.
Appellants' first paragraph of complaint contends that chapter 258 of the Acts of 1949 attempts to convert the police power measure into a tax measure, that the subject of taxation is not expressed in the title of the act and exceeds the subject and matters properly connected with the 1945 act, and is therefore in violation of article 4, section 19, of the Constitution of Indiana, which provides as follows:
For a full discussion of this contention, it is necessary to set out the title of chapter 304 of the Acts of 1945, which is as follows: 'An Act concerning motor vehicles, trailers and semi-trailers, concerning the ownership thereof, providing for the registration and licensing thereof, providing for the licensing of persons operating motor vehicles, creating a bureau of motor vehicles, defining its authority, powers and duties, defining penal offenses and fixing penalties, and repealing all laws in conflict and declaring an emergency.'
The title of chapter 258 of the Acts of 1949, which amended the last-cited act, is as follows: 'An Act to amend sections 25, 29 and 64, of an act entitled 'An Act concerning motor vehicles, trailers and semitrailers, concerning the ownership thereof, providing for the registration and licensing thereof, providing for the licensing of persons operating moter vehicles, creating a bureau of motor vehicles, defining its authority, powers and duties, defining penal offenses and fixing penalties, and repealing all laws in conflict and declaring an emergency.'
It is to be noted that the last two cited titles are titles of acts 'concerning motor vehicles, trailers and semi-trailers * * *' and 'providing for the registration and licensing thereof'. The titles of these acts embrace only the subject that is commonly known as motor vehicles, and matters properly connected therewith. It is one general subject. State v. Griffin, 1948, 226 Ind. 279, 79 N.E.2d 537; Baldwin v. State, 1924, 194 Ind. 303, 141 N.E. 343. The remainder of the act, other than the general subject, may be disregarded and considered as surplusage. Kelly v. Finney, 1935, 207 Ind. 557, 194 N.E. 157. The body of the Act of 1949, chapter 258, provides for the registration and licensing of motor vehicles, trailers, and semi-trailers, and appellants contend that the licensing and regulation are purely police measures under chapter 304 of the Acts of 1945, but that, under chapter 258 of the Acts of 1949, the licensing and regulation became a tax measure. Appellants do not question the validity of chapter 304 of the Acts of 1945; in fact, they admit its validity. In Baldwin v. State, supra, the appellant was convicted of violating the motor vehicle act, ch. 214 of the Acts of 1921. This act amended chapter 300 of the Acts of 1913. Identical constitutional questions were raised in this last-cited case as in the case now before this court. The title of chapter 300 of the Acts of 1913, which was questioned, is as follows: 'An Act defining motor vehicles and providing for the registration, numbering and regulation of asme, defining chauffeurs and providing for the examination and licensing thereof, and providing for punishment for the violation of any of the provisions of this act.'
The court, in discussing the title, stated at pages 305, 306 of 194 Ind. at page 345 of 141 N.E.:
'It is appellant's contention that nothing in this title would authorize the legislature to embody in the act a provision for the collection of a license fee, or registration fee.
The court further said, at pages 308, 309 of 194 Ind. at pages 345, 346 of 141 N.E.:
'In the case of City of Terre Haute v. Kersey, supra [159 Ind. 300, 64 N.E. 469], it was held by this court that the Legislature might authorize a municipality to impose a properly or reasonably graduated tax, in the nature of a toll, for the privilege of using the streets.
'It was also held in the above case that the ordinance in question was not in violation of the constitutional provision requiring a uniform rate of taxation, for the reason that such constitutional provision applied to a property tax based upon values, and not to license or toll charges, although the purpose of the latter was to raise revenue.
'If the Legislature can authorize such a license or charge to be collected by a city for the use of the streets, it can provide for the state doing it, for the reason that the Legislature has plenary control over the streets and highways, except where it has conferred that power upon the municipalities.
'This method of raising revenue is one frequently adopted and well recognized.'
In the case before this court there was a stipulation of fact entered to the effect that, under chapter 304 of the Acts of 1945, and in the year 1948, while this act was still in effect, over $13,000,000 was collected, and that the expenses of operation under this chapter were over $1,000,000. Under chapter 258 of the Acts of 1949, for the year 1950, there would be raised approximately $19,235,000. From these figures, it is plain that both chapter 304 of the Acts of 1945 and chapter 258 of the Acts of 1949 are revenue-raising measures as well as regulatory measures. In DeHaven v. Municipal City of South Bend, 1937, 212 Ind. 194, 199, 200, 201, 7 N.E.2d 184, 186, 187, the court, in discussing titles of acts concerning public utilities, said:
'The title to the 1913 Act reads as follows:
"An Act concerning public utilities, creating a public service commission, abolishing the railroad commission of Indiana, and conferring the powers of the railroad commission on the public service commission.'
'Appellee concedes that this might be considered a general title, and does not contend that the subject of taxation would not have been germane to the subject expressed in the title, and might have been very properly the subject of a provision in the 1913 act, but which was not there included. But, of course, under the 1913 act, taxing a municipally owned utilities would not have been proper inasmuch as such utilities were not...
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