*1 judgment felony. should re- an act that was a versed.
Note.—Reported 2d 760. in 126 N. E. Department Hanley Indiana, Indiana v. State et al. of Conservation 29,170. Rehearing Filed December [No. May 20, Denied 1955.] *3 Symmes, Fleming Symmes, Symmes, & Charles Lewis Indianapolis, Bose, Ging, C. all of and Waldo C. Greenfield, appellant. for Attorney Steers, General, Boling
Edwin K. Owen S. Harry Riddell, Deputy Attorneys General, E. appellees.
Ralph Gregg, A. B. Lawrence H. Hinds and Sheldon Jasper, Plainfield, Indianapolis, of Key, Paul of G. Greenfield, Legion, Wolf, the American E. of for William as Amicus Curiae. Peden, Indianapolis, Ameri-
Jesse of for Disabled W. Inc., Department Indiana, Amicus can Veterans Curiae. Mercuri, Indianapolis,
William S. for Veterans Foreign Wars, Indiana, as Amicus Curiae. On May27, 1953, J. appellant C.
Gilkison, filed his complaint Superior Court, against Marion Room appellees, asking declaratory judgment that section 11-1424, Repl., Burns’ 1942 Supplement, Cumulative Upon properly declared unconstitutional. motion made changed the venue the cause was Hancock Cir- complaint In due time a cuit Court. second amended filed, put and the was at issue answer. was same finding Upon appellees, trial there was Supplement Repl. 11-1424 Burns’ 1942 Cumulative Sec. nothing by his com- constitutional, plaintiff take is Judgment was plaint, costs. and that defendants recover was accordingly. trial A for new motion rendered perfected. appeal was overruled presented. parties procedural questions are All No question: Is the one the involved their efforts to direct statute constitutional? particularly questioned part the statute is as
That follows: to whom issued—Forms— “11-1424. Persons issued—Duty Clerks—Expiration—Appli- How
cation—Discharge permittee—Un- papers—Duty of hereby (a) authorized The director lawful acts.— prescribe permits and furnish required to honorably trap dis- hunt, fish this state to sailors, nurses, soldiers, marines, or wom- charged navy, marines, army, who corps en’s served United navy, corps of army, or marine War, during War Civil States Insurrection, the service on Philippine Spain, the during 1916 and Border Mexican who, II, time at the the World War I or War World
331 period of six of this state. application application, [6] months for such where [were] permit, next bona fide preceding and who for a full residents date the (b) The permits form of applica- such and the prescribed tion therefor shall be the director. permits Such shall be county issued in each of the state court, the clerk of the circuit without charge permittee, only soldiers, to to sailors, such marines, nurses, corps army, at the and women’s of the navy marines, are, above mentioned who making application, time of bona fide residents of county; except county Marion, such that permits only by director, such without ors, marines, navy of shall issued charge permittee, soldiers, to said sail- corps army, nurses and women’s only and marines who are bona fide residents county.” 93, p. Acts Ch. remaining (c), (d), (e) (f) subsections questioned, but the reasons therefor are contained (a) (b). in subsections appellant’s
It is contention that the involved statute is in conflict with Article 23 of the Sec. Constitution Indiana, providing: Assembly grant any “The shall not General citizens, citizen, privileges or class of or immuni- which, equally upon terms, the same shall not ties belong all citizens.” It is further contended statute is in con- 1 of the Fourteenth flict Sec. Amendment of the pro- of the United in so far States Constitution : vides “. . . No state shall make or enforce law deny any person jurisdic- which shall within its equal protection
tion the laws.” determining constitutionality In of the- statute indulge involved, will all we presumptions reasonable 332 Menaugh rel. Harrison favor. State ex v. its 260, 266, 151 117 (1898),
et
51 N. E.
al.
Ind.
357;
(1897),
Ind.
Townsend v. State
19; Kirtley
Ind.
State
E.
N.
179,
Therefore, attacker, burden is appellant, presumption to overcome noted. case Weisenberger 202 Ind. v. State N. E. 238.
The State contends that the involved statute is a proper police the power exercise of State by Legis the
lature. While much evidence by was heard designed court, trial to show loss of revenues incidentally Department to the State to its law, of Conservation reason of this we do not required this evidence was believe this case to deter presented by complaint mine issue and answer. general It has been well stated that “The rule is provides only the federal or state constitution determining validity of a statute.” standard only upon “consider statute which The court will founded, charge the sections of the state is claimed be in conflict.” with which it is constitution 175, 180, (1949), E. Kirtley 227 Ind. 84 N. State v. Corp., etc., Evansville, Ry. R. E. 712; v. So. Ind. Co. 2d 901; Weisenberger 654, 648, 109 N. E. 2d Ind. 231 v. supra, “invalidity 424, 431, but (1921), Ind. 202 State things may be shown questioned statute Weisenberger judicially noticed.” will be which v. (1926), Bros. 270 v. Palmer Co. State, supra; Weaver Wing Quong Ed. also 402, 409, L. 654. See 70 U. S. v. 352; 350, 64, 59, L. 56 Ed. U. 223 S. (1911), Kirkendall 225 (1947), v. Schoonover Insurance Department of 186, 190. Ind. authority legislative Indiana, vested all
In
333 4, Assembly. 1. Ind. Const. Art. Sec. The General legislate only by right is limited the restric impliedly imposed by expressly tions constitution, the federal constitution state Kirtley pursuant thereto. made the laws and treaties supra; 175, 712, (1949), N. E. 2d Ind. 84 v. State (1898), 151 Menaugh et al. Harrison v. State ex rel. supra; Townsend v. State 260, 266, 51 N. E. Ind. Weisenberger supra; 624, N. E. (1897), Ind. Quarries supra; (1921), Ind. v. State Bedford 671, 674, E. 80 N. Bough, 168 Ind. Co. v. S.) (N. A.
14 L. R.
grants privileges
questioned statute
It
that the
seems
citizens,
to one class
and immunities
belong
equally
to all citi
do not
the same terms
Assembly
lawfully
may not
zens.
General
in a valid
such
law unless it is done
enact
police power of the state. Classification
exercise of the
may
enacted under the
may
be made and valid laws
morals,
health,
public
public
protect
police power
Kirtley
safety
public
order, public
welfare.
public
712, supra;
E. 2d
84 N.
227 Ind.
State
(1947), 225
Department
Insurance v. Schoonover
*7
Examiners
186, supra;
Barber
Board
Ind.
State
v.
(1942),
552, 567,
Cloud
220 Ind.
One is: Is former serv- legis- proper ice a classification a discrimination relating question lation to taxation or licenses? This by writer, has been answered a text thus: majority . a “. . In of insances in which the question presented, exemption has been from the payment occupation solely or license taxes aon basis war service has been held to guaranties equality violate of the Federal cases, and state such In Constitutions. a few however, exemption upheld an has been as valid. Stat- exempting payment utes from veterans the poll 334 taxes, types of taxes, various property other occasionally sustained.” have been Sec.
taxes or licenses 501, Law, p. 183 Am. 12 Jur. Constitutional many there cited. authorities majority supporting the As rule see Marallis v. Chi 422, cago (1932), 429, 394, 349 Ill. 182 N. E. 83 State v. p. seq.; R. 1222 A. L. and Anno. 1233 et 498, 959, (1900), 496, 111 Garbroski Iowa 82 N. 82 W. Commonwealth v. 570; Rep. 524, A. Am. 56 L. R. St. (1907), 262, 266, and there Hana 195 Mass. authorities 799, cited, 149, (N. S.) 81 E. 11 L. R. 122 Am. N. A. State v. Whitcom 251, 514; Rep. 11 Ann. St. Cas. State v. 468; 110, 122, (1904), 122 Wis. 96 N. W. 277, 282, 1081, (1903), Atl. Shedroi 75 Vt. 179, Rep. L. R. A. 98 Am. St. 825. consistently has means court held that the used
Our health, protect public Assembly the General morals, welfare, order, safety or must have some accomplishment reasonable relation v. (1900), Blue et al. 155 Ind. in view. Beach end v. 89; Atty. 131, Fairchild, Pros. Schanke 56 N. E. 159; et al. Ind. 113 N. E. 2d supra, law Kirtley State, page If is at 181. such v. granting privileges legislature im enacted withholding the citizens same munities to class of properly validity law is of the from others duty questioned, it courts then becomes legislation and determine relates such whether review object appropriate in view. In to secure to and the court will looks to sub an examination such al., supra, thing et Blue Beach involved. v. stance Bruck Money 131; ex State rel. page at E. 2d 91 N. Ind. purpose conservation laws with ascertain the
To wildlife, may we respect Indiana look to several
335 concerning legislature laws enacted it. In 1881 the provided appointment Commissioner of Fisheries. Sec. of that act defined the duties of the Commissioner thus: duty “It be shall of said Commissioner to rivers, lakes, examine the various streams and State, water courses in and this ascertain whether
they productive supply can be rendered more fish; also what measures are desirable and ex- pedient and object propagating effect either in protecting present frequent the fish that at same, propagation or in the selection and of other species (or both) ; of fish therein said commissioner inquire also shall into and test best modes of propagation the artificial of fish in the various State, procure super- waters of the and shall procuring fish, eggs intend the as spawn, of the fish necessary propa- shall for said waters and the gation 53, 1881, same therein.” Acts ch. 2, page 516, 1881, Sec. R. S. Sec. 5725. legislature provided At the same session the for the protection game, birds, appro- wild wild and fish priate 1881, Public Chap. 37, laws. See Offenses. Acts 210, inclusive, pp. 218, 219, 196 to Secs. 220. R. S. 1881, Secs. 2105 to 2120 inclusive. When the Act authorizing appointment aof Commissioner of Fish- defining (Acts 1881, 2, 53, eries his duties ch. Sec. supra) repealed p. was Acts ch. appointment of a commissioner of Fisheries and provided for, repealed was Sec. of the act
Game was incorporated in the Act of and the duties of the greatly extended, by causing him, was Commissioner give among things, to other his attention to: preserving propa- “. methods of . . best game song gating the birds and birds now in the to “introduce such varieties of State” food and foreign birds, State, may to the game for be deemed people of the best interest State. shall . Commissioner laws . . Said also see all game are enforced. protection fish and for the *9 » given deputies special
The and his were commissioner authority of make arrests of violators the fish to game act, by 7, by of 4 laws Sec. Sec. given authority prose- was to assist in commissioner game against the fish and laws. cution of offenders legislature department of 1919, In created “the 19, act, p. 5No. of this Sec. conservation.” Division 387, 1919, of Fish and entitled “Division Acts was By had the duties theretofore that Act all Game.” Fisheries, belonged or the Com- of the Commissioner given were Game of Fisheries and missioner many conservation, along additional department with of authority. See Sec. much duties and additional Also, Ind. 2779-2861. Burns’ Statutes. Secs. By 353, p. the Acts of Ch. Sec. 60-701 Conservation, Repl., Department The of Burns’ abolished, the conservation commission were Department was created and Indiana of Conservation legal act, 60-703a, entity. made a Sec. of this Sec. Repl. jurisdiction, transferred all the au- Burns’ 1951 thorities, rights, powers, duties, responsibilities, causes Depart- defense theretofore vested “The of action or director, its ment the conserva- of Conservation” Depart- its tion commissioner or director to Indiana ment and its of Conservation Director. synopsis
A development short of conservation given laws in Indiana has been in order may that we an have the purpose idea of of such laws respect generally “wildlife” state say It that, Indiana. seems safe to from the beginning, purpose protect has been propa- life, gate for people such the benefit of the generally in generation and elsewhere. Almost Indiana within our we passenger have witnessed the extermination pidgeon, parakeet pheas- the Carolina and the drummer policy probably ant. The the state has been influenced by experiences. these present yearly hunt, trap resident license fee to dollars,
and fish in Indiana is two Sec. 11-1403 Burns’ Repl. Suppl. many provided There are other license fees for taking game Indiana law for the of wild and fish in many ways. expressly provided by different And it is law that: accruing "... No monies to the state of Indiana paid from license fees hunters shall be diverted purpose than the other administration game department division fish and *10 Repl. of conservation.” 11-912 Burns’ 1942 Sec. "Any any And: all and license fees and all and by, coming and monies taxed hands of the collected or into pursuant to, or of director virtue provisions paid of this act shall be into treasury part
the state and shall become a of the fish game propagation protection fund, and and and said expended propagation of, pro- fund shall be purchase frogs, tection, fish, mussels, and of wild birds, animals, game, expenses other wild or and all 11-1803, in connection therewith.” Sec. Burns’ Repl. judicially high We percent know that a persons of hunting age of in Indiana and elsewhere in the nation America, of ex-members the armed of forces and exempt paying hunting that to them from the fee for a fishing tendency deplete license will have a protection propagation fund for the available of fish, game, etc.; birds, thereby wild to retard and delay objectives. question conservation posed: So the is legislative produce act that tends to Is a an result protect public health, morals, order, act that will safety, question must be welfare? We think this or negative. legislation could not answered Such health, tendency protect public either have even legislature safety could morals, order, welfare. exempt persons procuring propriety equal from with intoxicating medicine, practice liquor, a license sell every dentistry, veterinary, line human endeavor required. may be hereafter which a license is now purposes destructive of the result would be Such legislation. By authorizing police power no stretch of helpful imagination it be thereto. could the statute involved indi- A careful examination legislative intent to make a small it was the cates that donees, expense state gift at the to the indicated state wildlife It destruction authorizes conservation. protection. propagation and provision for its without would beneficiaries the indicated cannot believe We may enjoy they words while In other occur. want disappear if pleasure fishing; would hunting game or fish to take. no there was statute, 11-1424 Sec. Burns’ The involved 1945, Chapter 93, Supplement, Indiana Acts Cumulative 211, in contravention of Article is Sec- pp. Indiana, and of of the Constitution Section tion Amendment of Fourteenth Constitution States. United given judgment reversed, For the reasons the motion for to sustain new trial. instructions *11 dissenting Emmert, opinion, J., with to follow.
Dissenting Opinion The majorityopinion reasoning its J. Emmert, of up a Pandora’s box constitutional as to open doubts many validity statutes in which of Indiana were Assembly appreciation by the General in of the enacted patriotic by the men and women sacrifices made during peril. applies of national It armed forces time affecting in a matter veter a rule of construction strict Dudley when, this court in as stated State ans 635, 228, 633, E. to invoke such Ind. N. unpatriotic impolitic.” Under the reason a rule “is Law, ing opinion majority of the Bonus Veterans of the thereto, §59-1401, 277, 1949, Acts and amendments Ch. approved Replacement, seq., was et which Burns’ 1951 (870,195 in a referendum state the voters of this no), yes, 250,318 constitutional votes is of doubtful votes validity, equal it asserted with force could be citizens, grants privileges immunities to a “class of belong equally terms,” which, upon the do “not same 1, In Article Constitution all citizens.” Section diana.
From legislative Colonial times it has been established grant policy to to veterans of certain campaigns wars or appreciation material benefits in military of their serv January ices. Assembly On the General of the Virginia granting enacted Commonwealth a statute campaign, the veterans General Clark’s Illinois capture accomplished Vincennes, of Fort Sackville at 150,000 Clark, Floyd acres land located in what is now English, Counties this state. Wm. H. Scott Con Country quest of the Northwest of the River Ohio and George Rogers Clark, XXI, Life of General Vol. Ch. seq. (1822), 1 Henthorn V. Doe Blackf. et 157.1 General recognized after Indiana became a state this court 1. Even Virginia concerning jurisdiction grant. “Congress certain any regulation attempted respecting make never has lands States, any instance, grant, nor the United have claimed in this subject, legislate right on the or in manner to inter- the fere primary disposal Virginia respecting the with of the soil. compact, Virginia retained, construction of fair If this and still n right legislation, retains the sole exclusive so respects the transfer from the Government far as to individual legal Grant; title to lands the Illinois claimants lands, Assembly respect to these the acts of the General *12 340 campaigns against conducted other our common
Clark during Territory in the Revolu- enemies the Northwest tion, after which the veterans thereof were not so com- ; pensated in it has so from earliest times this state legislative always proper it was a assumed been classify wars, veterans reason function to campaigns. particular reason of Assembly Indiana, in accord with General many state, legislative policy of this has enacted ancient reasoning veterans. The the benefit of statutes for unconstitutionality majority opinion cast a cloud of being these, partial as follows: list all of over §63-3138, Burns’ Barber Certificate. Renewal of Replacement. 1951 §59-1009, 1951 Re- Burns’ Burial Allowance. placement. §35-2102, Burns’ Death. of Birth or Certificate Replacement. 1949 §59-1018, Records. Copies of Public Certified Replacement. 1951 Burns’ Colleges and Univer- Exemption to State Tuition Replacement. 1948 §28-5732, Burns’ sities. Property As- Exemption on Taxable Disability Replacement. 1951 §64-205, Burns’ sessment. Discharge. §59-1004, 1951 Burns’ Recording of Replacement. §64-223, Exemption. Disability Tax percent Ten Replacement. 1951
Burns’ Departments. by Fire Employment Preferential Replacement. 1950 Burns’ §48-6125(a), Parking Plates and License Special Automobile §§47-2626 Veterans. Privileges 47-2629, Disabled for Replacement. 1952 Burns’ Class Cities. Employment Second Tenure Replacement. 1950 Burns’ §48-6610, authority as the acts of force and Virginia the same have respect the other these states.” lands Congress have (1822), Blackf. Doe Henthorn Rights §59-1008, Equal for Nurses. Veterans Replacement. Burns’ 1951 Vending §62-510, 1952 Re- Free Burns’ License. placement. During Exemption Income Tax Service. Gross Replacement (Supp.). §64-2606(a), Burns’ Exemption Disabled §64- Poll Tax Veterans. Replacement. Burns’ *13 Appointments. §49-301, Burns’ Civil Service Replacement. 1951 Act. Employment Personnel Preference Under Replacement. §60-1319, 1951 Burns’ Privileges Members of for Children School Replacement. §28-3716, Burns’ Armed Forces. During Rights Preservation Teachers Contract Replacement. §28-4322, Burns’ 1948 Service. Exemption for Vet- Tax Additional Inheritance 103, Chapter Acts Dying in erans’ Estate Service. 277, Chapter II World War Bonus Act. Veterans seq., amendments, §59-1401, et Acts and Replacement. Burns’ 1951 Mortgage Exemption. §64-227, Armed Forces Replacement. Burns’ 1951 eightieth session of the Assembly General en- acted Acts, Ch. 21 of the 1937 comprehen- which awas game sive law on fish taking and thereof, and the §11- Replacement Burns’ 1942 (Supp.), provides for the issuance of permits free hunt, trap to and fish War, veterans of the Spanish Civil American War, Philippine Insurrection, The Mexican Border Expedition in 1916 and World I and War World exemption War II. The required statute permittee each permit upon person have his hunting, trap- his when ping fishing. nothing or There the statutes which gives any right of the any veterans a to violate law with respect preservation game, of fish or and their permits subject are to revocation under the same terms
applicable any permittee. licensee or vet- other No during hunt, trap eran or is authorized to fish a closed game season, in an unlawful or to take fish manner. can no unreasonable classification There be provisions. because of these
However, Act, §11-1803, §51 Burns’ 1942 Replacement, provides that all paid license fees into treasury part game state to become a of the fish and protection propagation fund, and to be used “in the propagation of, protection, purchase fish, frogs, mussels, birds, animals, wild game, wild and all expenses other para- connected therewith.” Rhetorical graph appellant’s complaint states as follows: “That Tax of the a A. United States Government (U. S. C. Title Sections 3406 3407) is im- posed upon equipment. hunting the manufacture of fishing equal That an amount to these monies year apportioned for each fiscal including States, to the Indiana, the State propagation for the preservation game of fish and and distributed upon of licenses (1) (2) the basis of size of the State number sold, plaintiff purchased has *14 hunting fishing equipment past both and within the (6) paid six months and thus such Federal Tax deprived, thereon is and he as other hunters State, and fishermen in this proper aforesaid and denied his fair and being apportioned share of the amount for the reason that the Federal Govern- permit ment does not consider the issuance a free of distributing funds, (Title said
as a license in Sec. seq.) ; accordingly seq. et 669 et and the 777 issuance and permits of such free causes the amount propagation spent preservation of fish on such and game Indiana the United and in the State of per- be less than if such free to States Government That these circumstances were not issued. mits equal protection law, plaintiff, deny the to this process property due law and without takes his grants immunity privilege and to certain citizens Country, in with the all conflict this State provisions set out Rhetorical Constitutional Paragraph above.” presented that because argument words, is the In other is the law gets aid less federal of Indiana the State if is that to that answer short The unconstitutional. pa- place considerations legislature to chooses protection than the greater higher value and of triotism birds, wild mussels, frogs, wild “fish, purchase of right to constitutional game,” animals, it has do so. power has court to declare constitutional
This right unconstitutional, it have acts but does not unconstitutional, clearly an act do Unless is so. constitutionality. be in favor of doubt must resolved its judgment as to It its is not for this court to substitute just legislation may good, for that be wise or what legislature, temptation present in of the and this is ever constitutionality every stat consideration of recognized rule, Stating ute under attack. well ignore justify proceeding it cannot result then Judge majority opinion. Frazer was stated As (1865), 24 Ind. 197: in Brown v. Buzan paramount any statute, “The constitution is and whenever the two be held conflict the latter must void. it But where is not clear that such exists, conflict the court must not undertake settled, annul the statute. This rule well is unquestionable appre- is founded in hension this wisdom. The sometimes, though rarely, expressed, vicious, constantly rule is tends toward popular liberty, by gradually destruction of de- legislative stroying the constitutional limitations power, comprehend from a failure to results government, and the character of our forms of legis- they fundamental basis rest. popular peculiarly under the lature will. control intervals, changed, at short It is liable to be therefore, can, quickly by elections. errors Its remote the reach The courts are more from cured. doubts, following we, by people. If our of the absence *15 abridge just convictions, shall of clear authority legislature, remedy there no years. six Thus, to whatever extent this court might err, denying rightful in authority of the law-making department, we would chain that au- thority, long period, for a at our It feet. is better safer, therefore, judiciary, if err it must, should not err in that direction. If either de- partment government may slightly overstep powers, limits of its constitutional it should that one whose official life shall the least motive to end. It has soonest usurp power given, and the people can sooner relieve themselves of its mistakes. Herein is a sufficient that the reason courts should statute, never strike a down unless its conflict with Then, too, judiciary the constitution is clear. ought purpose legislature purity to accord to the as much itself; as it claim for as honest would high obey constitution, and, also, a desire to meaning. capacity is judge Hence, its action of its beget respect caution entitled to a which should This, attempting it with that cor- to set aside. legislature, in the exercise responding caution powers, of office natur- which the oath doubtful men, render the ally would excites in conscientious legislative nullity upon action judicial sentence of be, ought thing and secure as rare departments, the two co-operation of harmonious both, are essential independence of and that good government.” try It futile would be to reconcile all the cases involving jurisdictions benefits, yet other from veterans’ clearly recognize the better reasoned cases the rule that when a veteran enlisted the Armed Forces of the only States, govern- he not the federal United served Atwood but also ex rel. v. Johnson ment his state. State 218, 175 N. W. 7 A. L. R. 1617 Wis. therein. authorities cited Riley Board In Veterans’ 189 Cal. Welfare 22 A. L. R. Supreme 208 Pac. considered of California constitutional Court va lidity California, the Veterans’ Education Act of *16 of provided to veterans World educational aid transportation by to payment a of the cost of War I fees, institutions, of annual costs tuition educational living per for supplies, and month books $40.00 said: upholding Act the court expenses. the In government at re- “However, case the in the bar advantage the stimu- highly important of ceives lation recognition of the by a patriotism definite of courageous unhesitating, service magnificent, spirit veterans, valor and War whose the World of history form of of our of in favor turned the tide is, upon fundamental government, based, as equality men of all the freedom and principles of gov- right equal participate upon their to and ernment and government. advantages such of of of the stimulation advantage from derived This patriotism gifts outright justify sufficient is uni- pension, and by way money of bonus ground for such versally recognized a sufficient expenditures.” military make service absurd The realities modern 277, holding 54 in State v. Shedroi 75 Vt. 179, Rep. 825, R. Am. St. Atl. 63 L. A. 98 military basis for classification. service furnishes no 7, 8, 2d P. Farley 23 In 165 Okla. Watt disagree- Oklahoma, in Supreme Court of ing rule, with the so-called Vermont said: agree place, do not this war were selected from a In “We view. the first late
the soldiers of the governmental particular tion. particular a class. It was government classifica- selected male citizens age. majority The vast those who ages They served were between and 31. stages their then in formative lives. were Many discharged, not, of them when did as the general said, part court become Vermont many of mankind. For far too mass there no was discharge, Armistice, padded war simply there no was but cell, hospital cot, the white cross. The definitely interrupted studies, vocations, young the businesses of those men who were mak ing preparations occupational pro essential fessional careers. who Those were classified away handicapped only by called were an in terrupted preparation, by but a tremendous infla tion of values which met them They their return. handicapped physical disability were inci governmental dent their service and in wealth opportunity. They a distinct class constituted distinguished society—a from the mass of class by deprivation equal opportunity created pursuits in civil disability at home and marked incident country Marallis v. defense their abroad. Chicago, 83 A. L. R. Ill. E. N. 1222.”
The court could well have added that time not does everything cure for the veterans. Even those re- who being turned without wounded or diseased bear body in change. hidden scars mind and which will never escaped permanent change Few a personality of when suddenly taken from life necessarily civilian trained by every by kill permitted means violence of the rule regain they depletion Nor warfare. will ever physical energy, their reserve nervous nor can they fully heavy ever from the recover strains of train- ing strain, according or battle. Excessive modern science, may responsible for much medical be undue shortening span. military the life To hold that serv- per adequate an se ice does furnish and reasonable to consider modern for classification is warfare basis waged Napoleonic before the different than no wars, practice gentlemanly was more its than when aggressive. any validity
There
never been
doubt
to the
has
grant
pensions.
pensions
“Power to
is not con-
federal
be,
troverted,
can it well
as it
nor
was exercised
Congress
during
Continental
States
Revolution;
power
exercise of
war
is
organization
coeval
government
with the
of the
under
present Constitution,
and has been continued with
interruption
out
question
present
to the
time.” United
States
v. Hall
343, 346,
98 U. S.
If then the majority opinion valid, of the any then gross resident of Indiana who a had income year $1,000 over effect, when the bonus surtax was in could claim that the Indiana Bonus Act was unconstitu- tional, pay because he had tax for the benefit of a veteran of World War II. A veteran I of World War against could assert that he was discriminated because he compensation never received bonus from Indiana. war, A paid surtax, veteran of the Korean who equally against could assert that he was discriminated because he was as much entitled a bonus as World IIWar veterans. legal experience
There is no reason or basis putting preference a veteran’s on a different basis than pension act. ex rel. As was stated State Reclama tion Board 110 Wash. Clausen Pac. 14 A. L. R. 1133:
“Some contention is made that the law is un- constitutional equal privileges in that it violates the guaranty and cause it lands, arguments constitution, immunities of our be- contemplates, disposition giving rights preference to soldiers. All against could made the law *18 ground could, equal force, against this be made every pension by law was ever enacted the Congress States, of the United or of the states. Manifestly contention this is without merit.” equal persuasion logic With the applies same to a veter- exemption, an’s as such appeal involved in the at bar. majority The error opinion basic lies in its assumption that, unwarranted under the conservation amendments, act of and its public health, the only pro order, morals, safety could or welfare frogs, “fish, purchase protection of and tected animals, game.” mussels, But the birds, wild wild apprecia promotion public and also includes welfare greater patriotic can patriotism.2 service tion What of in and nation of our state be found than the defense pro no barrier peril? time There is constitutional of hunting, regulating trapping and hibiting act from one rewarding patriotic serv fishing, time at same enough both ice, long to cover the title is broad so objects. statutory price yearly hunt, for a trap license to Assembly, by statute, fish is If the General $2.00. provided
had buying permit, that each veteran such a general be reimbursed from the fund the sum of $2.00 purchased, for each license the lawsuit would never have been commenced. reimbursement would ma- Such not be terially aid, different than a bonus. But the federal motivating litigation, was the cause for have would forthcoming. gives piece been The state the veteran a year, and, paper case, of in one worth a in another $2.00 Simply case under Bonus Act because $400 $500. Assembly accomplish public pur- chose General obtaining exemption license, pose way an money appro- 2. the act Act] “Under Bonus [Wisconsin priated appreciation as awarded ‘as a token the character patriotic service, perpetuate spirit of their and to such ” part history appreciation Page as a 230. Wisconsin.’ gratitude is due the soldier no idle sentiment. He who “The kindred, upon home enters hard- leaves his trials and ships soldier, good life risks his the battle-field for the country, certainly gratitude of citizens.” entitled to the of all his Page 233. holding upon principle authority feel warranted “We public purpose purpose act is a within the mean- Pages 234, ing of the constitution.” rel. Atwood v. Johnson W. State ex Wis. 175 N. 589, A.L.R. 1617. *19 unconstitutional, gets the act is Indiana no because federal aid this method. legislation
The trend veterans’ since War World II, both Congress, grant in the in states and has been to more liberal require- benefits. Financial need was not a receipt ment for of the Indiana Wealth finan- bonus. or nothing cial had eligibility funds to do with a veteran’s to receive financial assistance under the I. Bill of G. Rights (Title A.) college professional U. for or S. C. patriotic objected education. No citizen to additional give help taxes to a veteran financial for additional such education, though many even or instances the veteran parents wealthy, amply provide were his or able to my extends, entire So far as research no can cost. case suggest any party temerity be found had the where Rights unconstitutional, Bill of was not in G. I. or petty public But a interest welfare. $2.00 great moment, exemp- and license fee is veterans’ “fish, frogs, tion struck interests must be down game.” animals, mussels, birds, court wild wild This applied maxim, “de minimis non could well have curat lex.” Rehearing
On Henley, C. J. The Indiana Assembly General in its passed 1945 Session an act which law, pro- became one exempted vision of which former members of the armed paying any services of United from States consider- fishing hunting providing ation for they licenses and free. class admitted act reads as follows : “ (a) hereby The director is authorized re- prescribe quired permits hunt, furnish trap honorably discharged and fish in this state to marines, soldiers, sailors, nurses, corps or women’s army, navy marines, of the army, during who served navy, corps or marine of the United States War, Spain, Civil War with the Phil- ippine Insurrection, the service on the Mexican during Border I 1916 and the World War II, who, application the for such months next War at the time of World permit, period (6) who a full of six preceding application, date (were)
(cid:127)where bona fide residents of this state. *20 “ (b) permits applica- The form of such and the prescribed by tion therefor shall be the director. permits county in each Such state shall be issued of the by court, clerk of the circuit the without charge marines, nurses, only soldiers, permittee, sailors, to such to corps army, of the women’s marines, are, navy at above mentioned who the making application, fide time residents of of bona county Marion, county; except of such only by director, permits be issued the shall such without ors, marines, nurses, soldiers, charge permittee, to said sail- to corps of the and women’s army, only fide navy who bona and marines county. residents of Burns, Supp., ch. Acts §11-1424, 1953 Cum. 93, §1, p. 209. brought action non-veteran, this appellant, a The County, praying in County, Hancock venued to Marion judgment that the declaratory complaint a amended an Art. of violative is void as legislative enactment Indiana, which the of State the Constitution §23 follows: reads grant any Assembly shall “The General citizens, privileges citizens, or immuni- class of terms, equally upon which, the shall not same
ties belong all citizens.” complaint that appellant his said also contends in The 1 of Fourteenth the also violates Section act involved States, United of the Amendment Constitution provides: . shall make . No state or enforce “. law deny any person ... which shall jurisdiction within its protection equal of the laws.” defendant-ap- The trial court held favor of whereupon against plaintiff-appellant, pellees overruling new trial plaintiff-appellant, his assign- motion, appeal. His prayed perfected briefs, of several of error as well as briefs ment single question veterans, organizations raise the and United violates Indiana whether act involved Constitutions, either of them. States court, by opinion This by GilMson, an J., written C. prior untimely by his death and concurred in three Judges then (with other of this court dissent Em- mert, J.), act held that the involved is unconstitutional judgment and reversed below for that reason.
Appellees rehearing petition and, a filed for since majority Judges present had assumed the bench re-argument subsequent judgment reversal, to the ready final was held and cause is now for decision petition rehearing appellees. on filed question this court is the on which *21 now before same by and decided Gilkison was confronted Chief Justice Judges. him and three of his then associate recognize We rule passing that in question on the whether an act may is indulge constitutional we in presumptions validity, in favor of its and ap we have plied present that rule in our consideration. The State Harrison v. Menaugh rel. ex (1898), et al. 151 260, Ind. N. v. State 266, 117, 357; 51 N. Kirtley E. 51 E. (1949), 175, 179, right legislate Ind. 84 N. E. 2d 227 712. The exclusively Assembly. vested in the 4, is General Art. of the Constitution State of Indiana. §1 Under police powers protect public broad health, its morals, order, safety welfare, and Assembly the General go lengths ordinary can to substantial affairs of life However, legislative rights these conduct. and always limited the limitations of the state and federal
352 Kirtley (1949),
constitutions. Ind. State 227 v. supra; Menaugh The ex et al. State Harrison v. rel. (1898), 260, supra; 151 Townsend v. State Ind. 19; Weisenberger 147 E. Ind. N. v. 238; State Ind. N. E. Bedford Quarries Bough (1907), E. Co. 168 Ind. N. S.) (N. 14 R. A. L.
Appellees, supported by Department the Indiana Legion, Foreign the American Veterans of Wars Dis- Indiana, Veterans, and Disabled American De- trict Indiana, Inc., partment each of a which has filed rehearing curiae, petition amicus brief on the for as proposition that a classi- have in such briefs stressed special for reward or consideration fication of veterans quarrel proper. We no have is constitutional many cases the classification of the statement for serv- special or consideration for rewards veterans proper. country constitutional rendered their ices legis- proper Military furnish basis does service only confined within but when classification lative Constitution. limits great peace importance prosperity to the
It is of that men and women should be nation state and way military orderly in an service from returned occupations, self-supporting those things they deprived were reason of which great a them in meas- restored to service such military However, service does not possible. ure as from the restrictions veteran man or woman relieve imposed all the citizens of and limitations by our Constitution. state practically all other
Indiana states union *22 have enlisted or citizens been for drafted from given veterans, military have to returned both service gratuities women, pref- bonuses and other men erential compensation treatment as or rewards for serv- ices rendered. Such have been considerations valid proper granting because the acts them did exceed those constitutional limitations established for the wel- protection fare and people. legislature, of all granting compensation special when or considerations veterans, required act within the limits Constitution.
There is a clear distinction between the case at bar granting and those cases which involve the of bonuses or compensation other re- considerations as or for purpose wards services rendered. The' whole readjust- of such acts is to assist the veterans in ing purpose himself to civilian life. The of the act here question concisely in appellees has been stated them- in selves their brief as follows: question clearly “The statute shows its
purpose protection game is for the fish for the benefit of the citizens of the state.” amended), 21, 1937, (ch. The title of the Act Acts as part, of which the section here under consideration is is as follows: concerning fish, frogs, mussels,
“An Act game, relating wild birds and wild animals and offenses thereto.”
Section Acts amended, ch. being as §11- Replacement, provides: Burns’ any “It shall be unlawful person in, to fish take, catch, attempt or or catch, to take fish state, from the hunt, waters this shoot, or to take, pursue, trap any wild bird or wild animal state, procuring without first in this a license there- for, provided, act person unless such shall specifically exempt this act doing.” from so legislative persistent show To intent zealously to *23 354
guard only necessary the state’s wildlife to examine beginning 1881, early certain conservation statutes as as excerpts of which are as follows: duty “It be the shall of said Commissioner to lakes, rivers, the examine various streams and . State,
water they in courses and ascertain whether productive supply the can be rendered more in fish; of also and ex- what measures are desirable pedient object propagating in to effect this either protecting present frequent fish at the and the same, species propagation other in of or the selection both); (or fish therein said Commissioner of inquire the. modes into and test best shall also in propagation of fish the various artificial of the super- State, procure and the and shall of waters eggs spawn, fish, fish or procuring of the the intend propa- necessary for said waters and be as shall gation 53, §2, 1881, ch. therein.” Acts of same 516, 1881, p. R. S. §5725. propa- preserving and best methods “. . The . song game now birds gating the birds food varieties of introduce such and shall State may deemed foreign State, be birds, as to the Game people of the State. interests of best for the all laws also see shall . . . Said Commissioner game enforced protection of fish for ____” 31, §2, p. 1899, ch. 44. Acts accruing to state of Indiana . monies “. No. by paid shall be diverted from license hunters fees any purpose than administration for other game department of con- of fish and division Replacement, Acts Burns’ §11-912 servation.” 1939, 101, §1, p. 517. ch. any “Any and all license fees and and all monies by, coming or to, taxed and collected the director into the hands of pursuant virtue of paid provisions of this act shall be into the state part treasury become of the shall fish and propagation fund, game protection and and said propagation expended of, pro- be fund shall fish, purchase frogs, mussels, tection, and of game, wild birds, animals, expenses and all other wild §11-1803, connection therewith.” Burns’ 1942 21, §151, p. Replacement, Acts ch. 21, supra, amended Section of ch. Acts being 286, §1, 879, §11-1403, ch. Burns’ 1953 Cum. Supp., provides that therein shall the licenses listed following respective “upon payment issued license fees the same.” Supp. §11-1403, for list of See Burns’ Cum. grades charged of licenses.
fees for various being §13, (d) ch. Acts Subsection supra, provides that §11-1404, Replacement, Burns’ 1942 *24 from “All into the hands of the director monies received treas- deposited in the state the sale of licenses shall be game propa- protection and ury part a the fish and as of gation fund.” game
Title to wild and fish in state its sovereign capacity all as the trustee of the citizens right property
in common. No individual has a game in fish or while in natural state. Smith its 611, E. 155 Ind. 58 N. v. State taking killing game a or the of is not of fish granted right privilege a the state under but is impose. may fit to conditions it see such as State, supra. Smith granted has 21, supra, of Indiana the State
Under ch. fishing hunting and privilege of to her citizens the conditions: game only during
(1) certain That be killed the in the specified periods amount and in the act; fishing (2) daily That the time of and the catch provided act; limited in as desiring any person (3) That to avail himself of hunting privilege fishing procure of a by paying duly license therefor to the author- issuing agent provided ized the license fee in the act. legis purpose The clear fee the license and provide pro lative intent behind is to funds for the game. propagation §11-1404, and fish tection and legislature Supp., supra. May Burns’ Cum. privilege hunting fishing to extend the veterans requiring comply them the condition without every person privilege who to exercise desires fishing privi hunting shall, in return for such lege, pay a a contribution to fish license fee words, game In other protection propagation fund? re may privilege without be extended to veterans expense of pay anything quiring toward them to replenishment regulation, protection, propagation and required to do? game as non-veterans fish 1, of Art. not, plain §23 violation We think without Indiana, here set out State the Constitution inbefore. Prosecuting Atty., court, Fairchild, etc. v.
This 2d 113 N. E. Ind. et al. Schanke legislative classi pertaining rule reaffirmed §23, supra, as stated limited Art. fication as Quarries Bough (1907), 168 Ind. v.Co. Bedford supra, as follows: legislature may make “The classification *25 legislative purposes, but must some rea- have upon which to It evi- sonable basis stand. dent differences which would serve for purposes a for some fur- classification would legislative for a for no reason classification nish legislation only operate must not purposes. Such class, upon all equally within but classi- justify and must furnish reason for fication class; is, making of the reason for the subject-matter, must inhere classification and some reason is natural and rest only substantial, not artificial. Not and must the brought all treat under its influence classification conditions, alike, the same but it must em- under naturally brace all within the class to which it is related. arbitrary Neither mere isolation nor se- proper (Citing lection is authorities.) classification. numerous ” attempted by classification §11-1424, supra, must be subject-matter considered reference to the
ch. 21 of the Acts of as amended. When this act is considered with its amendments and supplementary acts, it must be conceded that the subject-matter game, of the pur act is fish and and its pose is their propagation conservation and benefit of all any the citizens of the state. Is there dis tinction between a citizen of-the state who is a veteran non-veteran, one who is a in the manner and results catching hunting game? fish and wild a citi Would military zen with former service catch less fish or kill game military less than one without there service? Is any reason, protection propa with reference to the gation game, why fish and citizen who has had military contributing exempt service should from replenishment for the fund conservation and game state, supply fish and while another citizen during game who fish catches no more or kills no more service, open season, military but who was not hunting fishing pay privilege must for the thereby contribute to such fund?
No valid reason has been furnished us either appellees any curiae, amicus nor have we been any able find on our own account. Can it be said that military receipt service and the of an honorable dis- charge bear relation to the conservation propa- gation game? of fish and
There is no substantial distinction pres- between the ent conditions and circumstances veterans in the attempted question classification here in and those of *26 protection
other citizens Indiana in relation to the game. fact, and conservation of fish In as relates to and subject-matter (ch. 21, supra,) they the the are act fishing class, i.e., all of the citizens in same interested hunting preservation protection, and and and game. propagation of fish and attempted clearly here The classification is so upon a reference to based distinction with substantial subject-matter game (ch. and act of the fish amended, supra) that we deem unneces- 1937 as Acts sary prolong opinion with further discussion question. suggested rehearing
It attempted also on is that the classification here should be sustained because bonus
legislation has, many states, “generally been theory pro- held constitutional that the on tax by payment vided statute for bonus relating question public purpose.” for a There is no was payment of a involved the case to a tax for the bonus us, authority curiae amicus and the cited now before Anyway, public support position. their no lends 21, supra, part, is of which ch. purpose of act game. propagation preservation and protection, and increase the take exemption allowed tends time reduce the game the same fish and at catch propagation of preservation and protection, for funds 21, supra, therefore are provisions ch. life. The wild in direct conflict artificial, unreasonable attempted was classification the act. Such purpose of clearly reasons is public purpose for these not for unconstitutional. life, patriotically risked limb lib- veterans
War democracy. erty principles of constitutional the issue will reflection on of this case solemn Their sacrificing surely in the satisfaction that result reaffirming fishing they hunting of free benefits general constitutional fundamental an broad established *27 transcending free safeguard, their licenses. loss of rehearing petition is denied. for J., Bobbitt, concurs.
Achor, J., opinion concurs to follow. J.,
Emmert, opinion Levine, J., dissents with in which concurs.
Concurring Opinion Rehearing on for Petition The feeling deep appreciation J. we Achor, hold for the men and women who have both sacrificed financially physically country war, for our in time of particularly battle, those who the con- bear scars single trasted with the trivial amount in fee involved a hunting fishing license, has made deliberate of the in consideration issue It un- case difficult. is arguments many injected derstandable have been which are have extraneous to issue involved. These clarify served to than confuse rather issue. There- fore, it occurs to me that some in additional statement support opinion is meritorious. place,
In the first it has been court, asserted that this by nullifying §11-1424, Repl. (1953 Burns’ 1942 Supp.), 1943, 266, §1, p. 757, Acts 1945, ch. 93, §1, p. 209, ch. improperly has legis- concerned itself awith matter of policy injected lative itself into a field reserved to legislature co-equal as a government. branch of the support contention, In of this placed stress has been statements this court that “it is within the province legislature in the first instance to de- just termine what classification is reasonable purpose attained,” view of the to be Martin Loula 208 Ind. 194 N. E. 195 N. E. desirability, legislation and that “The or need for entirely ques- legislature is to determine. The for the adopting a mat- tion of its wisdom a classification is ter of no concern to courts.” State v. Griffin N. E. Ind. 2d 537. subject. However, upon the Ad- there is no issue mittedly, province this court it is within the “desirability” the mere or “wisdom” of consider legislature. However, equally passed by laws province not within of this court true that it is desirability express pro- consider the or wisdom of the Indiana visions of the Constitution of Constitu- They supreme are the law tion the United States. responsi- it is our the land. Under Constitution accept government, co-equal bility, branch of the as a determine whether as written these Constitutions legislature permissible within not the acts of *28 usurping doing so, express In we are their terms. legislative function. Equality all men the law is one of the most of before concepts way right basic of our democratic of life. The only upon guarantees is not but based constitutional we that all men have declared “self-evident are equal.” are here with a statute created We concerned grants unequal privilege an a class of citizens. constitutionality required to determine of We are that law. responsibility,
When faced with the same Supreme States, holding of the Court United a stat- unconstitutional, duty ute stated: “No rests more im- upon peratively the courts than the enforcement of provisions constitutional those intended to secure that equality rights gov- which is the of foundation of free Connolly Pipe . . .” v. ernment. Union Sewer Co. (1901), Significantly, 22 184 U. S. S. Ct. 431. judge every of of Indiana the oath is: “I will . . . support States of United the Constitution best to the ... of of Indiana Constitution the State this my ability, help It me God.” skill and so in this case. responsibility have exercised which we Secondly, support there much has been discussion in military fact that service in armed forces legitimate upon of the United States constitutes a basis support which to laws for the benefit of as a veterans (1921), class. State ex Hart See rel. v. Clausen 580; Wash. P. 13 A. L. R. State ex v. rel. Yelle 2d 2d 217 P. also: Wash See Farley 23 P. 2d Watt 165 Okla. 687. We quite agree that that veterans are “class distinct” and they deserving purposes special are consideration for military related to their is no issue service. There subject that in this case. holding
Finally, it is that the decision asserted statute before us unconstitutional casts a “doubt legislation unconstitutionality” upon all for the benefit as a veterans class. present Attention is to the called fact at that courts uniformly have held that exemp bonuses and certain tions from taxation made to veterans as a class proper, to this liberally extent our courts have construed the constitutional mandates of our State and against Federal granting unequal Constitutions1 privileges and Appellee immunities to our citizens. curiae, purpose bringing
amicus for the case precedent within foregoing argue cases, hunting fishing, fee for license authorized *29 §11-1403, Repl. (1953 Burns’ 1942 Supp.), Acts 118, §1, p. 571, 1951, p. ch. §1, ch. merely is §11-1424, a tax that supra, and since of the Act does 1, §23, Art. Indiana, of Constitution the of State §1 of the Fourteenth of Amendment the Constitution of the United States. exempt payment no from the more than veterans tax, provides for such that therefore the statute which They if, exemption on the valid. asserted is also government may exempt contrary, not veterans the the privilege payment of the “tax” for the from the belongs fishing, privilege hunting to all the which and government reasonably people, that the it would follow public give public may lands or funds not to veterans belong bonuses, etc.), all the (by way which also exempt pay- may the people, veterans from legislation taxes, up which to now has certain ment of highly provocative accepted as valid. This asser- been our careful consideration. tion warrants although face, assertion, plausible on its The above consideration. does not withstand solemn and deliberate fishing hunting merely a tax the fee for Is license may properly exempt? The veterans from which upon purpose dependent whether is answer public (1) primarily to raise funds or is collection (2) payment primarily limitation is whether such priv precedent to the exercise and condition argument fallacy appellee’s ilege. lies required by clearly fee the Act is license fact raising public purpose of funds. mere tax for not a payment supra, provides for §11-1403, which Both exempts §11-1424, supra, fee, the license integral parts payment, are from such veterans Repl., §11-1401, Act, Burns’ 1942 Acts Conservation purpose seq. 21, §10, p. et The admitted 1937, ch. propagation protection and Act “the of fish of (md people.” The license all game the benefit of for directly necessary related to the medium is a fee provides Act. It purpose of the accomplishment of conserving and purpose of the exclusive funds promotes pro- further wildlife propagating *30 gram limiting the take of the wildlife to limited condition, support program. the It number who is a precedent hunting privilege to the the exercise of fishing. par- It is because of fact this this brought ticular statute is not within the constitutional granted exemp- properly veil of tax which have laws tion to it that our veterans and is because of this fact of uncon- decision in this case not cast a “doubt does stitutionality” upon those laws. exemptions granted and benefits in veterans
the appellee circumstances above referred to have' , permissible merely (1) been because veterans con “special citizens,” stitute a class of but for the further brought the reason that facts in each instance also case requirement, (2) within the second fundamental that the factual basis for the bore a rea classification primary n relationship sonable and direct real or purpose granting special the law consideration-. Jur., §9, p. Healy 56 Am. 83 A. L. R. Ratta v. (1932) (D. C.), Supp. 1 F. 669. This most basic principle fundamental is determinative of our decision in this case. it is admitted special
Since that veterans are class purpose of citizens for of laws related to their mili- tary service, our decision is made to rest de- a. termination as to whether or not the facts this case principle, namely, meet test of that there also relationship be a reasonable between the basis clas- (military service) purpose sification and the of the Act (§11-1401, seq., supra). under consideration et Because privilege of the fact license fee af- inseparably purpose to the fords related of, Act, and because of the Conservation further fact that relationship military find no reasonable we between purpose privilege Act service hunting fishing, §11-1424, we have concluded that constitutionality. supra, the test of fails to meet argument support Perhaps persuasive the most principle on which this case has been decided Although reported no cases found themselves. diligent none been cited and after search cases have to our attention which have considered the have come *31 constitutionality identical to that with of a statute many concerned, states have con- which we are here analogous constitutionality of which laws sidered the payment peddlers’ the of exempted from have veterans necessity relationship a be- The such license fees. subject military the of the Act service and tween granted specifically special privilege rec- a is Farley (1933), ognized v. case of Watt Okla. the 687, supra, 6, 8, appellee relied 7, 2d 23 P. length. considered the In that case court quoted at needy exempted constitutionality of a law which peddler’s payment of a license disabled veterans from opinion with this its state- court concluded fee. ment: may true there is no relation be- “While a soldier and the business
tween service yet duty peddler, a relation between the there is a of granting privilege sovereign and the of a needy soldier which will enable disabled daily provide so as to relieve for his needs him society from his maintenance and care.” deciding principle has been the fac- This fundamental validity nearly all the cases which considered the tor in legislation exempted which has veterans from the peddlers’ payment In license fees. those cases where exemption indigent apply has been made veterans, legislation generally disabled has been upheld Farley reasons stated the cases of v. Watt, supra; City Samples Macon (1928), v. 167 Ga. 57; 150, Montgomery S. E. State v. 92 Me. (1899), 433, 13; 43 A. State Whitcom 110, (1904), 122 Wis. v. However, learn, 99 N. W. far as we are able to exempted where such were not veterans disabled or indigent, states, only except courts of all the New Jersey,1 passed upon question, which have have legislation making exemption declared such unconstitu granting privilege special tional as to a class citi relationship zens without reasonable between purpose granting class and the special of the Act privilege. supra; Healy,
United States.—Ratta v. (1912), Alabama.—McLendon v. State 179 Ala. 54, 392; 60 So. Chicago (1932), 422, Illinois.—Marallis v. 349 Ill. 1222; 182 N. E. 83 A. L. R. Iowa.—State Garbroski 111 Iowa 570; 82 N. W. 56 L. R. A. Massachusetts.—Com. v. Hana 195 Mass. 149; E. 81 N. *32 Mississippi.—Adams v. Standard Oil (1910), Co. 879, 692; Miss. So. South Carolina —Laurens (1906), v. Anderson 62, 136; 55 E. 75 S. C. S. parte (1897), Jones Texas.—Ex 38 Tex. Crim. Rep. 482, 513; 43 S. W. v. Shedroi Vermont.—State 75 Vt. 1081; 54 Atl. Washington.—Larson v. Shelton 37 Wash. 1067; 2d 224 P. 2d Whitcom, supra. Wisconsin.—State analogy, of their clear Because the foregoing cases significant Jersey that the It New Court in the case of Burough Bradley Beach, Strauss v. in a 117 N.J.L. of A. only opinion, one-page discussed the fact that veterans were distinct from “class the mass of . . a . citizens.” It did not necessity the of a relationship consider reasonable between the subject of the Act. class and the determination, persuasive highly to the presented reasoning accept
issue in this case we the controlling. To rule would of those cases as otherwise every principle a be to establish individual who belonged group performed to a which a distinct had legislature might public the consider service which worthy respect,” properly “appreciation could obligation government every exempted from be every preference recipient be made and/or might legislature special privilege a benevolent spe- grant. might who receive such choose Persons ministers, might policemen, include cial consideration teachers, pub- firemen, civil defense workers school “party” that matter. lic officials or members of legislature and contradict For what court could they performed pub- deny had not some that as class respect? worthy The appreciation and lic service be material since would not the classification basis of longer necessary there be rela- no would and the tionship of the classification between basis giving special privilege or im- purpose Act otherwise, munity. the veteran we have ruled Should license, permitting it we free but have his would concept human whole have stultified would centuries, many ancestors, equality over which our themselves struggled our veterans and which attain fought preserve. and died to supra, 11-1424, places
Section and the veteran unequal position, respect non-veteran in an hunting fishing. privilege privilege is not service; military therefore, to his related statute provisions prohibiting inis violation of constitutional granting privileges class of citizens and im *33 which, upon terms, equally munities same do not belong to all citizens.
Dissenting Opinion judgment appeal This is J. an from a on Emmeet, finding §11-1424, Replacement a that Burns’ 1942 1937, (Supplement) 21, §33, p. 64; 1943, (Acts ch. ch. 266, §1, p. 757; 1945, §1, 209), p. was constitu ch. Appellant’s complaint charged tional. second amended (1) appellant equal protection the act denied law, granted special privilege immunity to a purely arbitrary basis, certain of citizens class deprived property process him of without due Amendment, (2) law under the Fourteenth that said section inwas conflict with Section of Article I of Indiana, (3) the Constitution of contravened I Section 23 of Article of the same Constitution.1 regrettable It in the first instance such a grave opinion constitutional issue was decided an (123 452) expedition 2d N. E. filed such that no given opportunity was to submit a dissent to the other my members of the court. In dissent filed December (123 457), N. E. 2d attention was called twenty-two Assembly other acts of the General over majority opinion which the cast a cloud of constitutional endangers Appellant’s every attack doubts. veterans’ state, reasoning enactment of this used in de- ciding appeal precedent will be a for all courts validity question. when of these acts comes in reargued When cause petition was on the rehearing, appellant sought escape logic particular demanded, man’s “No services shall be without just compensation. without without such property by law, No man’s shall be taken just compensation; nor, except State, in case of the compensation first assessed and tendered.” Section I, Article Constitution Indiana. Assembely grant any citizen, “The General shall not citizens, privileges which, upon class of terms, or immunities the same equally belong shall to all citizens.” Section I, Article Constitution of Indiana.
368 taking position
majority opinion by that all other constitutional, only legislation and veterans’ was hunt, trap granting permits to act veterans free In this he to “strain fish was seemed unconstitutional. impressed gnat, I am not at a a camel.” swallow bonuses, pensions, reasoning grants that which I. grants, exemptions, tax burial benefits G. land aggregate benefits, have Rights in the Bill of constitutional, dollars, taxpayers millions of cost a a permit, non-veteran a which costs $2.00 but free year, is unconstitutional. declaring judges by the law
If are to avoid we unflinchingly by courts, we must adhere than rather not requirement that courts do to the constitutional may Assembly. be the Whatever sit as General concerning wisdom, opinions judges’ individual legislation, con- necessity veterans’ such justice determining nothing do with have siderations rule or not. This is constitutional an act whether such authorities, more by and deserves is well settled lip than mere service. by bound “This court is same Constitution right legislative authority has no curtail expressed limitations in side of it. Nor power has this court to revolutionize the funda reading by mental law limitations into it. This nothing do with the court has wisdom or un legislative may. of the act. A law
wisdom
general
repugnant
principles
justice,
liberty
rights
expressed
Constitution,
and
yet
power
no
the courts have
to strike it down.”
Brewing
Schmitt, Supt.
(1918),
F.
Cook
v. W.
Co.
E.
3
L.
187 Ind.
N.
A.
R. 270.
question
may
unwise,
be that the act
“It
public policy,
but as to
matter
this we have
a
nothing
a
to do. This was matter to be determined
legislature.
by
It
alone
was
members
by
people through
repre-
enacted
their chosen
Twp.
sentatives.” Bolivar
Bd.
Fin. Benton Co.
v. Hawkins
191 N. E.
Ind.
158, 96 A. L. R. 271.
legislative
to be over-
“...
enactment is not
may
opinion
thrown because the court
is harsh in its
be of
it
operation,
it would have been
larger
wiser to have
allowed
freedom to the in-
dividual. As was said Mr. Justice Holmes in
Otis
Parker
Sup.
187 U. S.
Ct.
168,
Legislative
have been the established
benefits
Virginia
territory
acquired
the time
policy
since
of this
during
American Revolution.2 The
by conquest
Virginia, by
act of its
an
General
Commonwealth
150,000
January 2, 1781,
acres
Assembly
set aside
on
Clark, Floyd and
is now
in what
land located
given
state,
veterans
of this
Counties
Scott
*36
English, Conquest
Campaign. Wm. H.
Illinois
Country
of the River
and Life
Northwest
Ohio
of
George Rogers Clark,
XXI,
seg.
et
Vol. Ch.
of General
(1822),
371 necessity making There is no review the vari- legislative granting by ous acts lands veterans reason military service, any we have but not been cited to any grant case nor do we know of case wherein such a granting has prohibited been held the special privi- of a lege immunity, equal protection, or lack of or a process. denial of due
Appellant
reargument
position
on
took the
that fish
game belong
people
to all the
from the time of the
Magna
that, therefore,
permit
Charta and
the free
act
**4
was unconstitutional.* “The common law
the title
vests
game
fish,
possession
not reduced to
or under
restraint,
sovereign power—in
in
Britain,
Great
in
King;
States,
in
states,
the United
the several
in
trust
for their
inhabitants. No one has
absolute
right
game
property
in
or fish while
ain
state
nature
large,
right
and at
may
and the
to take them
re
prohibited, and,
granted
stricted or
when
exercised,
State v.
privilege.”
it is a
(1910),
Ashman
123 Tenn.
654, 657,
been Water-banks, be so done with shall have been taken or during reign.” Thomson, us our fenced Richard an His- Essay Magna King John, p. on torical Charta 85. The present law rule came later. common important quails game to note that American 5. “It belong sovereign capacity such to the State in and as trustee of its birds the as citizens common.” Smith v. State E. Ind. 58 N. “ naturae, any right property far ‘Fish are and as ferae public, exist, it is in the or is common to in them can all. No *37 people
But the interest in wild fish beneficial game public no different than the and is interest lands, public public “the of the United in lands by ordinary it, are held not as an individual States people proprietor, in for all the of all the but trust 785, Lands, Am. Jur. Public Since states.” 42 §3. constitutionally give public sovereign may lands to vet- military service, recognition is where in of their erans granting by prohibition a violated constitutional hunt, fish, trap permit when the beneficial free to game legal is the wild and fish same as status public lands? paragraph appellant’s
Rhetorical 13 of second charges complaint equal he amended was denied protection property of law and his taken without due special privilege immunity process was granted because Indiana received less federal revenues 26, 3406, 3407, U. A. collected under S. Title Sections C. 16, 777, seq. seq. et and Title and 669 et This Section argument wholly clearly specious. The two acts are is by government the federal to another effort feudalize forcing by preempting revenues, all the states tax thus go great to the vassal states overlord Wash- ington get paid, the taxes their have back citizens handling charge, of course estimated Senator less Naturally Byrd our court to be at least is 15%. legislative policy this, but it concerned with on interesting note that the 85th session of the General Assembly nationwide attention a Concur- attracted Resolution, 2, pp. Ch. rent Acts Vol. growth condemning of national .feudalism follows: they property until them exists taken
individual reduced ” possession. 2 Black. Com. V. Lewis to actual 392.’ State E. 1024. 134 Ind. 33 N. guardian intends needs no “Indiana people of our have none. Hoosiers—like the We spell quite a fooled for sister states—were *38 magician’s out of trick that dollar taxed our bigger pockets Washington, and sent will be to good when it comes back to us. look at taken a We have weight dollar. find that it lost in said We journey Washington political its back. brokerage of the bureaucrats has been deducted. thing there We have decided that is such no aid. know that ‘federal’ We there is no wealth already to tax that is not within the boundaries of the 48 states. propose we tax “So henceforward to ourselves up and take care of ourselves. We are fed subsidies, paternalism. doles and one’s We no stepchild. grown up. We have We that serve notice Washington, C., adopting
we will resist .” D. us. . . There no is constitutional mandate in either the Fed- eral requiring or the Indiana Constitution Indiana get right all the federal it can. aid It is Assembly legis- General to determine as a matter of policy lative how much federal aid Indiana should accept. may argued target
It as well shooter, be trap and skeet shooter have their constitutional rights equal treatment invaded when in one after- shooting they noon of match burn more ammunition expended any county during than is in a whole week open hunting. They may yet season game, never hunt they pay just the federal on tax ammunition the same. right Appellant property any no has of these federal funds, any privileges nor have of his or immunities away, any been taken he nor does have property right any potential “fish, frogs, mussels, birds, wild wild game” animals, yet in existence. 21 of I
Section
Article
of the Indiana Constitution
any
application
rights by
has no
asserted
appellant.
not in-
provision
was
“This
Constitution
taxing
tended as
restriction
the State’s
power
power,
only
to the
but relates
exercise
early day made
of eminent domain. This court at an
by the use
the distinction clear and unmistakable
taken,
may
following
‘Property
of the
words:
through
use,
taxing power,
public
without
compensation
benefit
other
than the common
appropriation
expenditure
of the
which the
proceeds
taking
produce.
only
the
individual,
tax
It is
pieces
property
specific
of an
of the
domain,
right
virtue of the
of eminent
Constitution,
special
prohibited
pensation.’
com-
without
”
Hanly
E.N.
v. Sims
175 Ind.
State,
ex rel. v. Steinwedel
also
See
Neither Fourteenth Amendment prohibit rea- Article I Indiana Constitution *39 legislature. by sonable classification question exemption “If the statute in makes apply ation, one citizen and not to like another in situ- arbitrary it is capricious then an or classifi- protection only equal The cation. requires rule of of law persons similarly shall be situated- alike, apply treated or that the law to all shall who are in the same class. The Fourteenth Amendment rights, equality was intended to secure of all may render to be unconstitutional all laws which ' applying persons property or construed as arbitrarily discrimination, unequally or unjustly. . . . recognizes legislative that, The “. . . court province Legisla purposes, ture it is within of the first instance to determine what classifi just purpose is and reasonable cation in view lightly The court will to be attained. substitute judgment Legislature. for that of A its classifi Legislature made will be sustained cation unless manifestly unmistakably it is so arbi upon trary room to leave no which reasonable Martin may v. Loula differ.” 208 minds 355, 194 178, 195 346, 352, 354, N. E. E. N. 881. Ind.
375 Supreme As the United was said Court of v. in Jackson States State Bd. Tax Commissioners 537, 540, 527, 283 L. Ed. U. S. 51 S. Ct. 75 holding Tax in Chain Store Indiana constitutional, in “The fact that a discriminates statute arbitrary, if favor of a certain not make it class does the discrimination is founded a reasonable distinc- Co. v. tion, Sugar Louisiana, American 179 U. S. Ref. 89, 102, 43, 45 L. state Ed. 21 S. Ct. if of facts reasonably can be conceived to sustain it. Rast v. Van 679, Co., Deman L. L. R. A. & 240 U. 60 L. Ed. S. 455; Quong 1917A, 421, 1917B, Ann. S. Ct. Cas. v. Wing Kirkendall, L. Ed. 223 U. S. S. (Italics supplied.) 192.” Ct. legislation applies people
All or more is to two necessarily legislation, it class but follow it does not by this is unreasonable or unconstitutional. As was said holding §10-4219, Replacement, in court Burns’ only constitutional, although prohibited males from gambling visiting frequenting a house of ill fame or house, “Any may made, necessarily classification that be arbitrary. is most can be said is that some
may
arbitrary
more
than others. Horack’s Suth-
Statutory
(2d Ed.)
erland
Construction
§2106—
Perry Twp.
quoted
Indianapolis
Light
Power &
Co., supra,
page
at
desirability,
legislation
“The
or need for
en-
tirely
legislature
question
for the
to determine. The
adopting
of its wisdom
of no concern to
a classification
ais matter
may
the courts. The courts
deter-
only
mine
whether the classification is founded on
*40
subject matter,
substantial distinctions in the
so
or is
manifestly unjust
destroy
and unreasonable as to
property.”
lawful
use
(1948),
State v. Griffin
226 Ind.
Patriotism is no idle If the sentiment. perpetuate memory patriotic chooses to or reward its gifts by exemptions, sacrifices it has the constitu right classify purpose. The tional veterans for that might conceivably power fact that the be abused no more every makes it unconstitutional than tax law would power power tax unconstitutional because the destroy. deciding rule, so-called Vermont military classification, service is no reasonable for basis State v. Shedroi Atl. Vt. 179, wholly ignores history
L. R. A. of veterans’ legislation military as well realities of modern thoroughly fallacy service. The rule Vermont was exposed Farley 6, 7, 8; 165 Okla. Watt P. 2d 689: agree do not “We with this view. In the first
place, the soldiers of the late war were selected from particular governmental class. It was a classifi- government cation. The selected male citizens of particular age. The majority vast of those who served were ages between They of 18 and 31. were then stages in the formative of their lives. Many Vermont discharged of them when not, did as the said, part general court become a mass of many mankind. For far too there was no Armistice, discharge, there simply was no but padded cell, hospital cot, the white cross. The definitely war interrupted studies, vocations, young businesses of those making men who were preparations essential occupational profes- sional careers. Those who were classified and called away were handicapped only by interrupted an preparation, by but a tremendous inflation of values which met them They their return. were handicapped by physical disability incident to their governmental service opportun- and in wealth and ity. They distinguished constituted a distinct class society—a from the mass of class depri- created equal opportunity vation pursuits in civil at home disability marked incident to defense *41 Chicago, country Ill. Marallis v. their abroad. 1222.” 422, 182 E. 83 A. L. R. N. time have does court could well added re- everything Even those who for the veterans. cure being bear the wounded or diseased turned without change. body which will never hidden scars in mind and change personality escaped permanent when of Few necessarily suddenly life trained taken from civilian permitted by by every of violence to kill means regain deple- they ever of warfare. Nor will rules energy, physical of nervous and tion of their reserve they heavy fully can recover from strains nor ever according training strain, or battle. Excessive of science, may responsible for much medical modern military shortening span. the life To hold that undue adequate per se not furnish an and reason- service does able for to consider modern war- basis classification is waged Napoleonic different than that before fare no wars, gentlemanly practice than when was more its aggressive. legal putting reason or a vet
There is no cause pension preference than different basis eran’s on a ex rel. Reclamation act. was stated in State State As 188 P. Board 110 Wash. v. Clausen 538, 544, 14 A. L. R. 1133: “Some contention is made that the law is uncon- stitutional, equal privileges in that it violates the guaranty Constitution, and immunities of our be- contemplates, disposition lands, cause giving rights preference to soldiers. All arguments against that could be made the law ground could, equal force, against with be made every pension law that was ever enacted Congress States, of the United of the states. Manifestly this contention is without merit.” equal persuasion logic applies
With same to a vet- exemption, appeal eran’s such as involved in the at bar. the railroads fact that
It historical is a well-known public lands millions of acres of the West received than other consideration without the United States industry commerce, the settlement stimulation 823, Public 1028; 42 Am. Jur. West. 50 C. J. of Railroad Construction. Lands, VIII, in Aid Grants nothing conservation Certainly to do it had depletion of game, in fact it hastened fish and comprehend It is difficult natural resources. those *42 permit an unconstitutional is veterans’ free a how un- immunity, of the result or is special privilege and vast classification, time these at the and same reasonable grants public are domain constitutional. reasoning City in Larson v. Shelton 1067, wholly inapplicable 481, 224 P. 2d 37 Wash. 2d 11-1424, appeal bar. at Section to the facts (Supplement), not create Replacement does 1942 Burns’ hunting, fishing trapping for any for different rules complying veterans, them from does not excuse concerning game, fish not and does criminal laws all hunt, permit, trap a without them to fish authorize to hunt it authorize veteran or fish nor does upon If court trespassing the lands of another. this permit the veterans’ section unconstitu to hold were a, b, tional, it must hold then a subsections fortiori §11-1405, Replacement, Burns’ and d of hunt, and the tenant to fish and the owner authorizes license, person a without a and trap their lands on age license, years fish a without under void, game belong and since fish and unconstitutional sovereign people. the use and benefit of all the for to the Replacement, 11-1403, also Burns’ would Section provides because different be unconstitutional persons, purposes for different and uses. fees license regulation fishing, hunting The fact power police trapping exercise is done under the bad. per se make classification of the state does protect rules, power to court, by police exercises This the bar members to public in the admission of grandfather’s ad- clause adopts Rule state. 3-1 good attorneys in mitting practice were all to law who standing prior July 1, Rule classifies 3-17A forces, going under this in or to the armed those graduate to be possible rule it is for a law school pass practice he could never admitted to the when existing, “During emergency now bar examination. court, any person who until further of this order school, graduated accredited has been from an law bar rules, taken a described in these who has not examination, requiring him to who shall receive orders duty active forces of commence with the armed following the day prior the 5th United on a date States may graduation be subsequent his next examination the State motion of without examination admitted Board Law .” Rule Examiners. . . 3-17A. morals, public health,
It is error to assume that the general order, safety only protected can welfare mussels, purchase frogs, “fish, or conservation of *43 birds, animals, game.” public welfare wild wild The pa- promotion appreciation and also includes may Assembly know, For all we triotism. General promote health it would have assumed encouraged in stability to be of the veterans nervous hunting fishing would pursuits, outdoor improve forget war, help them the hidden scars general mental health. their any there
I am unable see where difference be- giving payment a state bonus or under the federal tween Rights, §693, seq., U. Title 38 S. C. A. et I. Bill of G. reasoning urged by permit. Under and a free appellant, any Spanish veteran of the American War equal privileges I World War has been denied immunities because he had had no state bonus as been paid to veterans of II. The veterans of the World War justice equal Korean War with could make the same complaint, rights than because their are different bonus the veterans of World War II. statutory price yearly hunt, trap
The for a license to statute, Assembly, by If the and fish is General $2.00. permit, provided buying a that each veteran had such general be reimbursed from the fund the sum of $2.00 purchased, for each this would never license lawsuit would not have been commenced. Such reimbursement aid, materially than But the federal different a bonus. motivating suit, this which was the cause for would gives forthcoming. the veteran state have been year, case, and in piece paper in one worth $2.00 gives Act, piece case, him a under the Bonus another upon the paper in the form of a warrant drawn may hundred be worth several Treasurer of State according Many dollars, his of the veterans service.6 permits I War obtained and carried of World going them, they but because it was were use because given thing only Indiana had ever the State of military appreciation for their token its them as a appellant have court seeks to this service. Now country forget time of national their service to peril.7 Appellant any in this case was not 6. able to offer evidence using permits number of veterans at all as to the who were their year. one n prevalent tendency by Kipling This too has been well noted
when wrote: he Tommy Tommy this, that, “It’s an’ an’ out, ’im ‘Chuck the brute!’ country,’ But it’s ‘Savior of ’is when begin guns to shoot.”
381 any suggestion validity Nor is there in the that purpose Acts, amended, 21 of Ch. of the 1937 as was “fish, frogs, mussels, birds, conservation of wild wild animals, game,” or therefore the act could reward patriotic patriotism. service or stimulate The title of game, concerning fish, frogs, mussels, Act “An act is relating birds, animals, wild and wild and offenses generality thereto.” The of the title of an act does not make it unconstitutional. generality objection “The of a title is no to it so long gruous legislation it as is not made a cover incon- to itself, and which fair intendment no having necessary proper can connection. subject considered be general If the title to an act covers a go it need not further and mention all germane subject that are
matters
to such
nor is
necessary that details be mentioned in the title to
the act.” Crabbs v. State
193 Ind.
prevent ‘log rolling’ legislation; prevent (2) to surprise, provisions legislature by fraud, means of give in bills of which the no inti titles mation, and, apprise subject (3) people legislation Cooley, under consideration. Const. (7th Bright ed.) 205; McCullough (1866), Lim. Moore-Mansfield, etc., Indian Ind. 223.” Co. v. apolis, etc., R. Ind. Co. E.N. 296.8 many “This court has times called attention to purpose the fact of the title of an act provisions under of the Constitution re- above merely express general ferred the mane to such topic to is act, anything ger- and that is relevant or incongruous topic, thereto, and not is properly words, included. In other what is natur- ally properly be found under the title contained act, examining in the be able to know but one title must that he will not misled “Every subject Act shall embrace but one and matters properly therewith, subject expressed connected shall be title.” Section Article Constitution of Indiana.
inclusion in the act of what
*45
not be ex-
would
pected
to
expected
under such title. The title is not
every
part
be an index to
of the act
itself.”
City
Indianapolis
(1954), 233 Ind.
v. Buckner
510.
E.N.
2d
Many examples
purposes
of dual
of an act
could
Chapter
cited.
entitled,
80 of the 1933 Acts
“An act
concerning
beverages
declaring
alcoholic
and
an emer-
gency,”
promote temperance,
was to
provide
tax
revenues.
designed
The Indiana chain store tax act was
prevent
to raise
monopolies.
revenues
Midwest-
Corp.
ern Petroleum
v. State Bd.
Tax Commrs.
206 Ind.
187 N. E.
Therefore judgment granted of the trial been should have court affirmed.
Levine, J., joins in dissent.
Note.—Reported in 123 E. 2d 452. N.
Rehearing 126 N. E. 2d denied *46 Prosecuting Holovachka, Attorney, ex rel. State Judge Court, Murray, of Lake Criminal etc. etc. 29,264. Filed June 1955.] [No.