Hanley v. STATE, DEPT. OF CONSERVATION

Concurring Opinion on Petition for Rehearing

Achor, J.

The feeling of deep appreciation which we hold for the men and women who have sacrificed both financially and physically for our country in time of war, particularly those who bear the scars of battle, as contrasted with the trivial amount involved in a single fee for a hunting and fishing license, has made a deliberate consideration of the issue in this case difficult. It is understandable that many arguments have been injected which are extraneous to the issue involved. These have served to confuse rather than clarify the issue. Therefore, it occurs to me that some additional statement in support of the opinion is meritorious.

In the first place, it has been asserted that this court, by nullifying §11-1424, Burns’ 1942 Repl. (1953 Supp.), Acts 1943, ch. 266, §1, p. 757, 1945, ch. 93, §1, p. 209, has improperly concerned itself with a matter of legislative policy and injected itself into a field reserved to the legislature as a co-equal branch of the government. In support of this contention, stress has been placed upon statements by this court that “it is within the province of the legislature in the first instance to determine what classification is just and reasonable in view of the purpose to be attained,” Martin v. Loula (1935), 208 Ind. 346, 354 , 194 N. E. 178 , 195 N. E. 881 , and that “The desirability, or need for legislation *360 is entirely for the legislature to determine. The question of its wisdom in adopting a classification is a matter of no concern to the courts.” State v. Griffin (1948), 226 Ind. 279, 288 , 79 N. E. 2d 537 .

However, there is no issue upon the subject. Admittedly, it is not within the province of this court to consider the mere “desirability” or “wisdom” of the laws passed by the legislature. However, it is equally true that it is not within the province of this court to consider the desirability or wisdom of the express provisions of the Constitution of Indiana or the Constitution of the United States. They are the supreme law of the land. Under the Constitution it is our responsibility, as a co-equal branch of the government, to accept these Constitutions as written and to determine whether or not the acts of the legislature are permissible within their express terms. In doing so, we are not usurping a legislative function.

Equality of all men before the law is one of the most basic concepts of our democratic way of life. The right is not only based upon constitutional guarantees but we have declared it to be “self-evident that all men are created equal.” We are here concerned with a statute which grants an unequal privilege to a class of citizens. We are required to determine the constitutionality of that law.

When faced with the same responsibility, the Supreme Court of the United States, in holding a statute unconstitutional, stated: “No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government. . . .” Connolly v. Union Sewer Pipe Co. (1901), 184 U. S. 540, 560 , 22 S. Ct. 431 . Significantly, the oath of every judge of Indiana is: “I will . . . *361 support the Constitution of the United States and the Constitution of the State of Indiana ... to the best of my skill and ability, so help me God.” It is this responsibility which we have exercised in this case.

Secondly, there has been much discussion in support of the fact that military service in the armed forces of the United States constitutes a legitimate basis upon which to support laws for the benefit of veterans as a class. See State ex rel. Hart v. Clausen (1921), 113 Wash. 570 , 194 P. 793 , 13 A. L. R. 580; State ex rel. v. Yelle (1950), 36 Wash 2d 192, 217 P. 2d 337 . See also: Farley v. Watt (1933), 165 Okla. 6 , 23 P. 2d 687 . We quite agree that veterans are a “class distinct” and that they are deserving of special consideration for purposes related to their military service. There is no issue upon that subject in this case.

Finally, it is asserted that the decision holding the statute before us unconstitutional casts a “doubt of unconstitutionality” upon all legislation for the benefit of veterans as a class.

Attention is called to the fact that at present courts have uniformly held that bonuses and certain exemptions from taxation made to veterans as a class are proper, and that to this extent our courts have liberally construed the constitutional mandates of our State and Federal Constitutions 1 against the granting of unequal privileges and immunities to our citizens. Appellee and amicus curiae, for the purpose of bringing this case within the precedent of the foregoing cases, argue that the license fee for hunting and fishing, authorized in §11-1403, Burns’ 1942 Repl. (1953 Supp.), Acts 1939, ch. 118, §1, p. 571, 1951, ch. 286, §1, p. 879, is merely a tax and that since §11-1424, supra, of the Act does *362 no more than exempt veterans from the payment of such tax, that therefore the statute which provides for the exemption is also valid. They asserted that if, on the contrary, the government may not exempt veterans from the payment of the “tax” for the privilege of hunting and fishing, which privilege belongs to all the people, it would reasonably follow that the government may not give to veterans public lands or public funds (by way of bonuses, etc.), which also belong to all the people, and may not exempt veterans from the payment of certain taxes, which legislation up to now has been accepted as valid. This highly provocative assertion warrants our careful consideration.

The above assertion, although plausible on its face, does not withstand solemn and deliberate consideration. Is the license fee for hunting and fishing merely a tax from which veterans may be properly exempt? The answer is dependent upon whether the purpose of the collection is primarily (1) to raise public funds or whether such payment is primarily (2) a limitation upon and condition precedent to the exercise of a privilege. The fallacy of the appellee’s argument lies in the fact that clearly the license fee required by the Act is not a mere tax for the purpose of raising public funds. Both §11-1403, supra, which provides for the payment of the license fee, and §11-1424, supra, which exempts veterans from such payment, are integral parts of the Conservation Act, §11-1401, Burns’ 1942 Repl., Acts 1937, ch. 21, §10, p. 64, et seq. The admitted purpose of the Act is “the protection and propagation of fish (md game for the benefit of all the people.” The license fee is a medium necessary and directly related to the accomplishment of the purpose of the Act. It provides funds for the exclusive purpose of conserving and propagating wildlife and further promotes the pro *363 gram by limiting the take of wildlife to the limited number who support the program. It is a condition, precedent to the exercise of the privilege of hunting and fishing. It is because of this fact that this particular statute is not brought within the constitutional veil of tax laws which have properly granted exemption to veterans and it is because of this fact that our decision in this case does not cast a “doubt of unconstitutionality” upon those laws.

The exemptions and benefits granted to veterans in the circumstances above referred to by appellee have' been permissible not merely (1) because veterans , constitute a “special class of citizens,” but for the further reason that the facts in each instance also brought the case within the second fundamental requirement, (2) that the factual basis for the classification bore a reasonable and direct relationship to the real or primary■ purpose of the law granting the special consideration-. 56 Am. Jur., §9, p. 89, 83 A. L. R. 1231, Ratta v. Healy (1932) (D. C.), 1 F. Supp. 669 . This most basic and fundamental principle is determinative of our decision in this case.

Since it is admitted that veterans are a special class of citizens for the purpose of laws related to their military service, our decision is made to rest upon a. determination as to whether or not the facts in this case meet the test of this principle, namely, that there also be a reasonable relationship between the basis for classification (military service) and the purpose of the Act under consideration (§11-1401, et seq., supra). Because of the fact that the license fee and the privilege it affords are inseparably related to the purpose of, the Conservation Act, and because of the further fact that we find no reasonable relationship between military service and the purpose of the Act or the privilege of

*364 hunting and fishing, we have concluded that §11-1424, supra, fails to meet the test of constitutionality.

Perhaps the most persuasive argument in support of the principle on which this case has been decided is found in the reported cases themselves. Although no cases have been cited and after diligent search none have come to our attention which have considered the constitutionality of a statute identical to that with which we are here concerned, many states have considered the constitutionality of analogous laws which have exempted veterans from the payment of peddlers’ license fees. The necessity of such a relationship between military service and the subject of the Act by which a special privilege is granted is specifically recognized in the case of Farley v. Watt (1933), 165 Okla. 6, 7, 8 , 23 P. 2d 687 , supra, relied upon by appellee and quoted at length. In that case the court considered the constitutionality of a law which exempted needy and disabled veterans from the payment of a peddler’s license fee. The court concluded its opinion with this statement:

“While it may be true there is no relation between the service of a soldier and the business of a peddler, yet there is a relation between the duty of the sovereign and the granting of a privilege to a needy or disabled soldier which will enable him to provide for his daily needs so as to relieve society from his maintenance and care.”

This fundamental principle has been the deciding factor in nearly all the cases which considered the validity of legislation which has exempted veterans from the payment of peddlers’ license fees. In those cases where the exemption has been made to apply to indigent and disabled veterans, the legislation has been generally upheld for the reasons stated in the cases of Farley v. *365 Watt, supra; City of Macon v. Samples (1928), 167 Ga. 150 , 145 S. E. 57 ; State v. Montgomery (1899), 92 Me. 433 , 43 A. 13 ; State v. Whitcom (1904), 122 Wis. 110 , 99 N. W. 468 . However, as far as we are able to learn, where such exempted veterans were not disabled or indigent, the courts of all the states, except only New Jersey, 1 which have passed upon the question, have declared legislation making such exemption unconstitutional as granting a special privilege to a class of citizens without any reasonable relationship between the class and the purpose of the Act granting the special privilege.

United States.—Ratta v. Healy, supra;

Alabama.—McLendon v. State (1912), 179 Ala. 54 , 60 So. 392 ;

Illinois.—Marallis v. Chicago (1932), 349 Ill. 422 , 182 N. E. 394 , 83 A. L. R. 1222;

Iowa.—State v. Garbroski (1900), 111 Iowa 496 , 82 N. W. 659 , 56 L. R. A. 570;

Massachusetts.—Com. v. Hana (1907), 195 Mass. 262 , 81 N. E. 149 ;

Mississippi.—Adams v. Standard Oil Co. (1910), 97 Miss. 879 , 53 So. 692 ;

South Carolina —Laurens v. Anderson (1906), 75 S. C. 62, 55 S. E. 136 ;

Texas.—Ex parte Jones (1897), 38 Tex. Crim. Rep. 482, 43 S. W. 513 ;

Vermont.—State v. Shedroi (1903), 75 Vt. 277 , 54 Atl. 1081 ;

Washington.—Larson v. Shelton (1950), 37 Wash. 2d 481 , 224 P. 2d 1067 ;

Wisconsin.—State v. Whitcom, supra.

Because of their clear analogy, the foregoing cases *366 are highly persuasive as to the determination, of the issue presented in this case and we accept the reasoning of those cases as controlling. To rule otherwise would be to establish a principle that every individual who belonged to a group which had performed a distinct public service which the legislature might consider worthy of “appreciation and respect,” could properly be exempted from every obligation of government and/or be made the recipient of every preference or special privilege which a benevolent legislature might choose to grant. Persons who might receive such special consideration might include ministers, policemen, firemen, school teachers, civil defense workers or public officials or members of the “party” for that matter. For what court could contradict the legislature and deny that as a class they had not performed some public service worthy of appreciation and respect? The basis of the classification would not be material since it would no longer be necessary that there be any relationship between the basis of the classification and the purpose of the Act giving the special privilege or immunity. Should we have ruled otherwise, the veteran would have his free license, but in permitting it we would have stultified the whole concept of human equality which our ancestors, over many centuries, struggled to attain and which our veterans themselves fought and died to preserve.

Section 11-1424, supra, places the veteran and the non-veteran in an unequal position, with respect to the privilege of hunting and fishing. The privilege is not related to his military service; therefore, the statute is in violation of constitutional provisions prohibiting the granting to a class of citizens privileges and immunities which, upon the same terms, do not equally belong to all citizens.

. Art. 1, §23, Constitution of the State of Indiana, §1 of the Fourteenth Amendment of the Constitution of the United States.

. It is significant that the New Jersey Court in the case of Strauss v. Burough of Bradley Beach, 117 N.J.L. 45 , 186 A. 681 , in a one-page opinion, only discussed the fact that veterans were a “class distinct from the mass of . . . citizens.” It did not consider the necessity of a reasonable relationship between the class and the subject of the Act.