Petition for Writ of Certiorari — Smith v. Indiana State Board of Health

FILED

LIBRARY

" - | MAY. 8) 1974

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

No. G3 - 18 10

ROBERT ALEXANDER SMITH, a’k/a ROBERT SMITH ALEXANDER; TOM

DUNCAN; ALEXANDER AND DUNCAN PRODUCTIONS; and

ALEXANDER PRODUCTIONS, INC.,

Petitioners,

V

INDIANA STATE BOARD OF HEALTH; INDIANA STATE POLICE DEPART-

MENT; CHARLES T. RACHELS, Prosecuting Attorney, 11th Judicial Cir-

cuit, Indiana; WILLIAM M. COX, Posey County Sheriff; POSEY COUNTY

BOARD OF HEALTH; BOARD OF COUNTY COMMISSIONERS OF POSEY

COUNTY, INDIANA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the Court of Appeals of Indiana

JOHN D. CLOUSE

1004 Hulman Building

Evansville, Indiana 47708

Telephone: (812) 424-6671

Counsel for Petitioners

May 29, 1974

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St. Louis Law Printing Co. Inc., 812 Olive Street 63101 314-231-4477

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INDEX

Page

BME EEE ire is 0 era a ee ea ates 2

RES LCE, tea pet 2 a Ce er a aS

ee 2

Constitutional Provisions Involved .................. 3

Statutory Provisions Involved ...................... 3

ON iis og ela bck See ek oa 4

Reasons for Granting the Writ ...................... 8

1. The Indiana State Court has decided federal ques-

tions of substance not in accord with the applicable

Cs er es ES ck. eck ce 8

2. The Indiana State Court has decided federal ques-

tions of substance not theretofore determined by this

MN i chneackekan Obie Gre sneer ks 10

RII 6 ci ooeey beleecebaet cee ee 12

Appendix A—Opinion and Judgment of Court of Appeals A-1

Appendix B—Rulings on Petition for Rehearing and Peti-

ee eS oe eer eee oe A-21

CITATIONS

Cases

Denny v. State (1932), 203 Ind. 682, i82 N.E. 313 ..... 4

Freeman v. Hewitt (1946), 329 U.S. 249, 67 S.Ct. 274, 91

RAP Hekduvicras dou sos ee ot ealiu 10

ats

Er URS RS Aes saat

OG RS i HU te Si dea ad a Sal ies ROIS,

ii

Gompers v. Buck’s Stove & Range Co. (1911), 221 U.S.

GO, 20 Oe, GO, BO Me FO ook nc cee cc cde cys 9

Joe Louis Milk Co. v. Hershey (1965), 243 F. Supp 351... 11

Johnson v. Bennett (1968), 393 U.S. 253, 89 S.Ct. 436,

sgh SRST Set gv Orica ORE DART Oe EES 11

Louis K. Liggett Co. v. Baldridge (1928), 278 U.S. 105,

ee re a ae a aw li

Siebeking et al. v. Ford (1954), 125 Ind. App. 365, 122

SP ss nS Ge me ae ur te toe F-., 8

State v. Ikeda (1943), 61 Ariz. 41, 143 P.2d 880 aT eae FN 11

State ex rel. Taylor v. Circuit Court, etc. (1959), 240 Ind.

94, 162 N.E.2d90...... Wa acaadie ete ek ok i 10

Stump v. Bennett (8 Cir. 1968), 398 F.2d 111 ......... 11

Tate v. Short (1971), 401 U.S. 395, 91 S.Ct. 668, 28 L.

ga AVS aon PAL arte a cod SO y

Whittem v. State (1871), 36 Ind. 196 ................ 9,11

Williams v. Illinois (1970), 399 U.S. 235, 90 S.Ct. 2018,

PUI nent ic esters a ee 9

Federal Statutes

ae. RR ae eee ns 3

Eo era ctr order ar ocr ert 3,11

Miscellaneous

Constitution of the United States, Article 1,§ 8 ........ 3

Constitution of the United States, Fourteenth Amendment,

OE Severe eee eee eee re Ge OL ak Soe ce 3, 11

I.C. 1971, 34-4-7-6 (Ind. Ann. Stat. § 3-906) .......... y

Indiana Rules of Appellate Procedure, Rule AP 11 (B) .. 2

ee er

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

Me ok,

ROBERT ALEXANDER SMITH, a/k/a ROBERT SMITH ALEXANDER; TOM

DUNCAN; ALEXANDER AND DUNCAN PRODUCTIONS: and

ALEXANDER PRODUCTIONS, INC.,

Petitioners,

Vv

INDIANA STATE BOARD OF HEALTH; INDIANA STATE POLICE DEPART-

MENT; CHARLES T. RACHELS, Prosecuting Attorney, 11th Judicial Cir-

cuit, Indiana; WILLIAM M. COX, Posey County Sheriff: POSEY COUNTY

BOARD OF HEALTH; BOARD OF COUNTY COMMISSIONERS OF POSEY

COUNTY, INDIANA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the Court of Appeals of Indiana

The petitioners, Robert Alexander Smith, a/k/a Robert

Smith Alexander, Tom Duncan, Alevander and Duncan Pro-

ductions, and Alexander Productions, Inc., respectfully pray

that a writ of certiorari issue to review the judgment and

opinion of the Court of Appeals of Indiana entered in this

proceedings on November 7, 1973.

OPINION BELOW

The opinion of the Court of Appeals of Indiana, printed in

the Appendix hereto, infra, p. A-1 is reported in 303 N.E. 2d

50.

JURISDICTION

The judgment of the Court of Appeals of Indiana was en-

tered on November 7, 1973. A timely petition for rehearing

was denied on December 14, 1973. A timely petition to

transfer the cause to the Supreme Court of Indiana was

denied on April 19, 1974. The Supreme Court of Indiana is

the highest court in that state having jurisdiction to review de-

cisions of lower state courts. Indiana Rules of Appellate Pro-

cedure, Rule AP 11 (B). This petition for certiorari was filed

within ninety (90) days of the Indiana Supreme Court’s re-

fusal to review, or “transfer”, the decision herein. This Court's

jurisdiction is invoked under 28 U.S.C. § 1257 (3).

QUESTIONS PRESENTED

1. Can the petitioners be committed to jail in lieu of a

penalty which they are financially unable to pay?

2. Is a contempt proceeding civil, or criminal, when it at-

tempts to coerce performance of an act which is incapable of

performance?

3. Where criminal sanctions can be imposed, does a de-

fendant ever have the burden of proof?

4. Can a state court, by its injunction, impede the free flow

of interstate commerce?

5. Do petitioners have Federal statutory rights to engage

in a business of their choosing?

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PRRs.

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitution of the United States, Article 1, § 8, Powers

of Congress, provides in its relevant parts:

[1.] The congress shall have power * * *

[3.] To regulate commerce * * * among the several

tate, * °°,”

The Constitution of the United States, 14th Amendment, § 1,

provides in its relevant parts:

“* * * nor shall any state deprive any person of life,

liberty, or property, without due process of law, nor deny

to any person within its jurisdiction the equal protection

of the laws.”

STATUTORY PROVISIONS INVOLVED

United States Code, Title 42:

Ҥ 1981. All persons within the jurisdiction of the

United States shall have the same right in every State and

Territory to make and enforce contracts, to sue, be par-

ties, give evidence, and to the full and equal benefit of

all laws and proceedings for the security of persons and

property as is enjoyed by white citizens, and shall be sub-

jected to like punishment, pains, penalties, taxes, licenses,

and exactions of every kind, and to no other.

Ҥ 1982. All citizens of the United States shall have

the same right, in every State and Territory as is enjoyed

by white citizens thereof to inherit, purchase, lease, sell,

hold, and convey real and personal property.”

STATEMENT OF THE CASE

Shortly before Labor Day, 1972, the petitioners were prepar-

ing to conduct a musical concert or “rock fest” in the State of

Illinois. The respondents instituted a proceedings in the Posey

Circuit Court, in Posey County, Indiana, and secured a re-

straining order against petitioners. In the words cf the Indiana

Court of Appeals:

“The restraining order basically enjoined the defendants

from advertising, promoting, conducting, selling, or giving

tickets, operating food and/or drink concessions at the

Labor Day celebration and restrained the defendants from

in any way holding the rock festival in Posey County, In-

diana.”

‘The respondents filed a “first” information in contempt against

petitioners, but that proceeding is not in issue here.

Respondents thereafter filed a second information in con-

tempt. against petitioners, charging violation of the restraining

order in that the petitioners, inter alia, had a ticket booth in

Posey County, Indiana; directed patrons to park in Posey

County, Indiana; and “sold concessions” in Posey County, In-

diana. The information concluded with the following prayer:

“Wherefore, plaintiffs pray that said defendants and each

of them be punished for their disobedience of said order

and all subsequent orders of this Court.”

Based upon this information, the Court issued a show cause

order.

The petitioners filed a responsive pleading to this—a motion

to discharge the rule to show cause. (This is, in effect, a motion

to dismiss contempt proceedings). The motion averred, inter

alia:

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“5. That the orders of this Court allegedly violated are

void and of no effect in that they purport to regulate inter-

state commerce, a matter only subject to regulation by the

Congress of the United States.

“6. That said orders of Court allegedly violated are void

and that they are in direct contravention to Federal statu-

tory law.

“7. That said orders of Court are void in that they de-

prive these defendants of Due Process of Law as guaranteed

to them by the 14th Amendment to the Federal Constitu-

tion.”

Thus, a federal question was first raised by petitioners by this

motion, which was overruled by the trial court.

The petitioners thereafter filed an answer averring no intent

to violate the court’s order. The court found the contempt pro-

ceedings were civil in nature, and ordered the parties to proceed

to trial.

During the trial, the court permitted respondents to prove

that the rock fest had caused damage to roads and the incurring

of additional police salaries and other expenses. The evidence

showed that the rock fest was conducted in the State of Illinois,

but incidental activities occurred in Indiana. The Court’s judg-

ment, insofar as it is relevant here reads:

“* * “ That Defendants, Robert Smith Alexander, Tom

Duncan, Alexander and Duncan Productions, and Alex-

ander Productions, Inc. and each of them shall pay

$6,571.35 to Posey County, Indiana and Posey County, In-

diana Communities and shall pay the State of Indiana $24,-

748.06 instanter, said payments to be made to the Clerk

of the Posey Circuit Court, who is authorized to distribute

said payments as heretofore set out. That Defendant,

—

Robert Smith Alexander sha'l be committed into the hands

of the Sheriff of Posey County, Indiana until said damages

are paid in full. That Defendant, Tom Duncan, shall be

committed into the hands of the Sheriff of Posey County,

Indiana until said damages are paid in full. * * *”

The petitioners thereupon filed a “(second) affidavit for re-

mission of fine” raising another federal question. This, omitting

formal parts, reads as follows:

‘Robert Alexander Smith, a/k/a Robert Smith Alexan-

der, Tom Duncan, Alexander and Duncan Productions,

and Alexander Productions, Inc., hereby make affidavit to

this Honorable Court as follows:

1. They would show to this Court that heretofore in

the second contempt charge against these defendants that

this Court ordered them to pay into this Court as a penalty

for their alleged contempt the sum of $31,319.41.

2. That at this present time the Internal Revenue Serv-

ice of the United States Government has levied upon all of

their property, the amount of said levy being in the sum

of $52,875.00, and said levy stands as a lien against any

conceivable asset which your affiants might have.

3. That the State of Indiana, and the County of Posey,

in a proceeding in this Court for damages, which is Cause

No. 72-C-218, have secured a writ of attachment, also

against the property of your affiants.

4. That, further, one Milton J. Reis, d/b/a Reis Cater-

ing Service, has also petitioned the Vanderburgh Superior

Court for a writ of attachment against all of tue property

of your affiants, which writ said Court has ordered granted,

although it is not, known at this time whether or not said

writ has actually issued.

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5. That the City of Evansville has a writ of attachment

attaching Ten Thousand Dollars ($10,000.00) of the

money and funds of your affants, the legal propriety of

said writ having been appealed to the Court of Appeals

of the State of Indiana.

6. That for all of the above reasons, your affiants do not

have the sum of $31,319.41 with which to pay and satisfy

the fine levied against them herein, and that said fine

should be remitted. That under the rulings of the Su-

preme Court of the United States of America, it is viola-

tion of said defendants’ rights to Due Process of Law, or

other rights of these defendants, to impose any sanction

when it is shown that the persons fined do not have the

financial ability ‘o pay and discharge said fine.

7. That, further, this Court has adjudged these defend-

ants to be imprisoned for a debt in direct contravention

to the Constitution of the State of Indiana.

Wherefore, your affiants pray that the Court remit the

fine heretofore imposed and all other just and proper

relief.”

This affidavit was overruled and denied by the Court.

Thereafter. petitioners filed a motion to correct errors, assign-

ing claimed errors of the trial court, including the overruling of

their motion to discharge the rule to show cause and their affi-

davit for remission of fine. This motion (to correct errors)

again raised federal questions:

“6. The decision of the Court is contrary to iaw in that:

* * * the enjoining of defendants’ business enterprise is

contrary to Federal statutory law; and the Court's decision

restrains interstate commerce in violation of the Federal

Constitution, being Article 1, § 8 (3) thereof.”

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This motion to correct errors was overruled, and petitioners

prosecuted an appeal to the Indiana Court of Appeals. On this

appeal the petitioners filed a brief in which they argued the

aforementioned federal questions in more detail.

(N.B.: The record quoted from above speaks as of the time

of its making. Subsequent changes are not noted, as petitioners

deem it improper to go outside of the record.)

REASONS FOR GRANTING THE WRIT

1. The Indiana State Court Has Decided Federal Questions

of Substance Not in Accord With the Applicable Decisions of

This Court.

(a) This reason for granting the writ involves the first ques-

tion presented: “Can the petitioners be committed to jail in

lieu of a penalty which they are financially unable to pay?”

After petitioners were ordered to pay the contempt “judg-

ment” or be committed to custody until they did so, they filed

their “(second) Affidavit for Remission of Fine.” This the trial

court overruled and denied, although it was not answered, de-

nied, or in any way controverted.

“* * * The fact th’. under the circumstances shown

counter affidavits could have been presented, and that the

appellee did not see fit to so present such counter affidavits

imports verity to the facts stated in the affidavits in ques-

tion.” Siebeking et al. v. Ford (1954), 125 Ind. App. 365,

371, 122 N.E. 2d 880.

The Court of Appeals of Indiana reduced the amount of this

penalty, but otherwise affirmed this judgment of the trial court.

Thus, petitioners must now surrender themselves into custody or

pay the penalty which, their affidavit demonstrates, they cannot

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possibly pay. A sentence of life imprisonment seems, indeed, a

harsh penalty for littering highways. Be that as it may, however,

this Court in the cases of Williams v. Illinois (1970), 399 U.S.

235, 90 S.Ct. 2018, 26 L.Ed2d 586 and Tate v. Short (1971),

401 U.S. 395, 91 S.Ct. 668, 28 L.Ed2d 130 has heid it to be

a denial of Federal equal protection to jail a criminal defendant

in lieu of a fine he cannot pay. Although the proceedings below

were not criminal, the consequences to petitioners are the same.

Further, according to the law of Indiana, “* * * a proceeding

for contempt is in the nature of a criminal prosecution. * * *”

Whittem v. State (1871), 36 Ind. 196, 202.

(b) This reason for granting the writ also involves the second

question presented: “Is a contempt proceeding civil, or crim-

inal, when it attempts to coerce performance of an act which

is incapabie of performance?”

Generally, in Indiana a civil contempt action is to coerce, a

criminal contempt action is to punish. Denny v. State (1932).

203 Ind. 682, 182 N.E. 313. However, the punishment which

can be inflicted in a criminal contempt action is limited to a fine

of tive hundred dollars ($500.00) and imprisonment of no more

than three (3) months. IC 1971, 34-4-7-6 (Ind. Ann. Stat.

$ 3-906). Was the contempt action brought against petitioners

in fact civil, as the trial and appellate court found? The case of

Gompers v. Buck's Stove & Range Co. (1911), 221 U.S. 418,

442. 31 S.Ct. 492, 55 L.Ed 797 appears to be the principal

antecedent of Denny. It clearly draws the line between civil and

criminal contempts, the former being to coerce action capable

of performance (the contemnor, if imprisoned, “* * * carries

the keys of his prison in his own pocket”) and the latter being

to punish. At bar, the record below demonstrates that the peti-

tioners do not have the keys to their prison in their own pockets.

Petitioners acknowledge that Gompers apparently is not a Fed-

eral Constitutional case, but contend that in the case at bar it

should be applied as an exposition of what Due Process of Law

a

should encompass. That concept clearly appears in the opinion

although the particular words are not used.

(c) This reason for granting the writ finally involves the

fourth question presented: “Can a state court, by its injunction,

impede the free flow of interstate commerce?”

The fact that the “rock fest” was conducted in interstate

commerce seems beyond dispute, and is, in fact, acknowledged

in the opinion of the Indiana Court of Appeals, although that

court does not so characterize it. When the trial court entered

its injunction against petitioners commerce was drastically im-

peded. This Court, in Freeman v. Hewit (1946), 329 U.S. 249,

253, 67 S.Ct. 274, 91 L.Ed 265, held that the Commerce

Clause, even without implementing legislation, is a limitation

on the power of States, and:

“* * * A State is also precluded from taking any action

which may fairly be deemed to have the effect of impeding

the free flow of trade between the States.”

If the trial court could not make the restraining order al-

legedly violated. if such order was void, then:

“* * * It is well established that a void order cannot

be the basis of a citation for contempt. * * *” State ex

rel. Taylor v. Circuit Court, etc. (1959), 240 Ind. 94,

102, 162 N.E. 2d 90.

2. The Indiana State Court Has Decided Federal Questions

of Substance Not Theretofore Determined by This Court.

(a) This reason involves the third question presented:

“Where criminal sanctions can be imposed, does a defendant

ever have the burden of proof?”

We again consider the affidavit for remission of fine, which

the Indiana Court of Appeals rejected. That court held petition-

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don,

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ers had the burden of proving their inability to pay the penalty

imposed. We have previously demonstrated that, in Indiana,

contempt proceedings are in the nature of criminal prosecutions,

Whittem v. State, supra. Whether the Due Process Clause pro-

hibits the burden of proof from ever shifting in a criminal case

seems to be a question not decided by this Court. Johnson v.

Bennett (1968), 393 U.S. 253, 89 S.Ct. 436, 21 L.Ed 2d

415. However, this Court's reference in that case to the case of

Stump v. Bennett (8 Cir. 1968), 398 F. 2d 111, is highly sig-

nificant. Stump holds:

“That an oppressive shifting of the burden of proof to

a criminal defendant violates due process * * *.”

(b) This reason finally involves the fifth question presented:

“Do petitioners have Federal statutory rights to engage in a

business of their choosing?”

Although this question was raised in the petitioners’ motion

to correct errors and brief, it was not discussed by the Indiana

Court.

The Fourteenth Amendment, their basis, and United States

Code, Title 42, §§ 1981-1982 dictate an affirmative answer.

Louis K. Liggett Co. v. Baldridge (1928), 278 US. 105, 112.

49 S.Ct. 57, 73 L.Ed 204, holds that one’s business is a property

right and that a State cannot arbitrarily interfere with it or im-

pose unreasonable or unnecessary restrictions on it. Although

there is a paucity of authority under the above cited Civil Rights

Acts, 42 U.S.C. § 1982 has been applied to the transaction of

business. State v. Ikeda (1943), 61 Ariz. 41, 143 P. 2d 880.

A nisi prius decision, Joe Louis Milk Co. v. Hershey (1965),

243 F. Supp. 351, 354, opines:

“* * * Neither logic nor policy compels the conclusion

that property rights are less deserving of protection under

the Constitution and Civil Rights Acts than are human

freedoms. * * *”

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Now, had the respondents and the trial court told the peti-

tioners, “You must have so many toilets, so many guards, so

much water, etc.”, it would seem to be a legitimate exercise of

police power. A total prohibition is not. Even nitroglycerine

can be manufactured.

CONCLUSION

For these reasons, a writ of certiorari should issue to review

the judgment and opinion of the Indiana Court of Appeals.

Respectfully submitted

JOHN D. CLOUSE

1004 Hulman Building

Evansville, Indiana 47708

Telephone: (812) 424-667!

Counsel for Petitioners

May 29, 1974.

ae = ee

APPENDIX A

Attorney for Appellants:

John D. Clouse, 1004 Hulman Building, Evansville, In-

diana 47708.

Attorneys for Appellees:

Theodore L. Sendak, Attorney General of Indiana; Robert

F. Hassett, Deputy Attorney General, Offices of the

Attorney General, 219 State House, Indianapolis, In-

diana 46204

In the

Court of Appeals of Indiana

First District

Cause No. 1-573 A 78.

Robert Alexander Smith, a/k/a Robert Smith Alexander; Tom

Duncan; Alexander and Duncan Productions; Alexander Pro-

ductions, Inc., and Others; Unknown Promoters, Whose True

Christian Names Are Unknown; Richard Roe and Others, Un-

known Concessionaires, Whose True Christian Names Are

Unknown; Ronald Poe and Others, Unknown Performers Indi-

vidually and as Organized Groups of Performers Whose True

Christian Names Are Unknown; Jane Moe and Others, Un-

known Ticket Sellers, Whose True Christian Names Are Un-

known; John Doe and Others, Unknown Participants and

Attendants, Whose True Christian Names Are Unknown,

Defendants-Appellants,

Vv.

Indiana State Board of Health; Indiana State Police Depart-

ment; Charles T. Rachels, Prosecuting Attorney, 11th Judicial

a Sa

Circuit, Indiana; William M. Cox, Posey County Sheriff; Posey

County Board of Health; Board of County Commissioners of

Posey County, Indiana,

Plaintiffs-Appellees.

Appeal From the Posey Circuit Court

The Honorable William D. Richardson

Special Judge

Lowdermilk, J.

Oral argument in the above case was held at the Old Terri-

torial Assembly Hall, Vincennes University, Vincennes, Indiana.

Plaintiffs-appellees commenced this action on August 29,

1972, by filing a complaint for injunction in the Posey Circuit

Court seeking to enjoin the defendants-appellants from holding

a “rock festival” (“Labor Day celebration”) in Posey County,

Indiana.

On the same day, defendants-appellants filed a motion for

change of judge from the Honorable Steve C. Bach, Judge of

the Posey Circuit Court, which motion was granted. Later

that day, plaintiffs presented a petition for a temporary restrain-

ing order to Judge Bach which was granted over the objections

of the defendants-appellants.

The restraining order basically enjoined the defendants from

advertising, promoting, conducting, selling or giving tickets,

operating food and/or drink concessions at the Labor Day

celebration and restrained the defendants from in any way

holding the rock festival in Posey County, Indiana.

Judge William D. Richardson was selected and qualified as

Special Judge. On September 1, 1972, plaintiffs filed the first

of two informations for contempt, which information alleged

that the defendants were in violation of the restraining order.

Ce ary oot. rn .

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The trial court issued a rule to show cause to the defendants

and set the same for hearing at 9:00 o’clock A.M. on Septem-

ber 2, 1972.

Hearing was had on the date specified over defendants’ ob-

jections and the court made findings and rendered judgment

holding defendants in contempt.

Thereafter, defendants-appellants filed their affidavit for re-

mission of a fine of $1,000 which had been assessed against

them after hearing of the first citation for contempt and the re-

lief requested was by the court denied.

On September 6, 1972, plaintiffs filed a second information

for contempt, whereupon the trial court issued the second rule

to the defendants :o show cause and set the same for hearing on

September 8, 1972. Defendants filed verified answer to the

second information and the hearing was had.

On October 13, 1972, the court entered findings and judg-

ment holding the defendants in (1) criminal and (2) civil con-

tempt. A second affidavit for remission of fine was filed by the

defendants after the court had ordered the fine paid or the de-

fendants sent to jail, which affidavit was overruled and denied by

the court.

Motions to correct errors were timely filed on the first and

second contempt convictions and were overruled by the court.

This is a consolidated appeal from the overruling of the two

motions to correct errors.

The motions to correct errors will be discussed herein as the

various specifications apply to the issues raised at the two con-

tempt hearings, and specifications which tend to support the

same issue will be treated as one. Rule AP. 8.3 (A)(7).

The first issue is common to both hearings and attacks the

very basis of the cause. Defendants-appellants contend that

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Judge Bach, having granted the motion for change of judge,

lost all jurisdiction in the cause and acted beyond the scope of

his authority when he granted the temporary restraining order.

Appellants argue that if Judge Bach erroneously granted the re-

straining order, the resulting contempt convictions necessarily

must be reversed, as no contempt can ensue from an invalid re-

straining order. |

We have found no case exactly on point regarding a change

of judge, but cases regarding change of venue from the county

are similar and the same reasoning would apply to both changes

_ from the county and from the judge. Our Supreme Court, in

the case of Indianapolis Dairymen’s Co-op. v. Bottema (1948),

226 Ind. 260; 265, 266, 79 N.E. 2d 409, in which a temporary

injunction was issued and a similar objection was raised, based

on lack of jurisdiction, held as follows:

“.. . It is the general rule that when a proper motion for

change of venue from the county is filed the court in which

it was filed loses jurisdiction in the case. State ex rel. Keal-

ing v. Clay Circuit Court (1934), 207 Ind. 259, 263, 192

N.E. 423. But jurisdiction must continue in some court,

and until the court to, which the venue was changed ac-

quires jurisdiction by the receipt of transcript, the original

court must retain jurisdiction to make any necessary emer-

gency interlocutory orders... .

* * * * * * *

“.. . Delay pending the completion of a change of venue

might in many instances deprive parties of the protection

afforded by such interlocutory remedies. The rule that the

filing of an affidavit for a change of venue from the county

does not deprive the court of jurisdiction to make such in-

terlocutory orders is well settled, and no indication of a

recession from this rule is pointed out. . . .” (Our em-

phasis. )

MEN ee EE MARTE LS

aay yews

The policy considerations for the rule enunciated in Bottema,

supra, were set out in the case of State ex rel. Gwin v. Spencer,

Judge (1942), 220 Ind. 337, 339, 43 N.E. 2d 724, as follows:

“

. . Jurisdiction over the case must necessarily be in

some court and some court must necessarily have jurisdic-

tion over the action to make such orders as might be eces-

sary for the protection of the rights of the parties ‘itigant.

To hold that the respondent judge in this case had no juris-

diction to make interlocutory orders in such a case would

leave the parties to the action helpless until the venue had

been perfected, and jurisdiction vested in the court to

which it was sent. In some cases several days or possibly

weeks might intervene between the date of filing the motion

for a change of venue and the date upon which the case

was filed in the county to which the action was venued. In

the meantime, property interests might be affected seriously

and the welfare of children might be neglected. We are not

persuaded that such a situation should receive the endorse-

ment of this court.”

This court held, in the case of Mich. Mut. Liab. Co. v. Perez

(1965), 137 Ind. App. 247, 256, 207 N.E. 2d 368, that:

“When the application for a change of venue was filed

by co-defendant, which is binding upon all defendants, the

trial judge before whom the cause was filed lost jurisdiction

except in matters of emergency and which matters need

prompt determination. . . .”

Dean Harvey has discussed this question and concluded that:

“No change of venue may be taken from such interlocu-

tory proceedings such as hearings upon a preliminary in-

junction or the granting of a temporary restraining order,

and if a change is taken upon the principal action, the

judge in which the case is filed may grant a preliminary

PHOS GAPE le a) UM nar leet

AL, neat a Mubd pie ent ine hele

—" =

injunction or temporary restraining order up until the new

judge qualifies . . .” (Our emphasis.)

4 Indiana Practice 389, Injunctions, § 65.

It is our opinion that jurisdiction in the cause was retained

by Judge Bach for emergency matters, even though a change of

judge had been granted. To hold otherwise would not only

contravene sound policy considerations and ruling precedent,

it would allow a defendant to file for a change of judge simply

to divest the local court of emergency jurisdiction.

The next issue raised by the motions to correct errors relates

primarily to the first contempt conviction. The defendants al-

lege that the court erred when it denied a requested continu-

ance, tried the defendants in absentia, and proceeded with the

action when no rule to show cause, or any other process, had

been served on the defendants.

Plaintiffs had obtained a temporary restraining order enjoin-

ing the defendants from conducting the “rock festival” in Posey

County, Indiana. The actual site for the festival was on Bull

Island which is located in Illinois, but the only land access to

the island is from Indiana. To control entry and collect ad-

mission fees from the estimated crowd of 60,000 persons, the

defendants had set up a stand in Posey County, Indiana. This

activity was a violation of the restraining order and prompted

the plaintiffs to file an information alleging contempt. The in-

formation was filed about 4:30 P.M. on September 1, 1972,

and the court issued a rule to show cause which incorporated

said information. Although the judgment shows service, the

evidence discloses that the defendants were never personally

served or given notice of the scheduled hearing set for Saturday,

September 2, 1972, at 9:00 A.M. and they were not present in

court at that time.

Attorney Clouse, who had appeared generally on behalf of

the defendants in the restraining order and continued to repre-

a

sent them, was notified by a representative of the Attorney Gen-

eral’s office by telephone at about 7:00 P.M. September 1,

1972, of the filing of contempt proceedings and was told to

appear at the hearing the next morning. When he arrived at

the court house Attorney Clouse was presented with the infor-

mation, rule to show cause, notice and order to appear, petition

to designate defendant, and a petition for writ of attachment.

Court convened before Attorney Clouse had an opportunity

to read all of the material.

Attorney Clouse, after explaining the situation to the court,

moved for a continuance on the grounds that he needed time

to read the material, research the law appropriate thereto, pre-

pare responsive pleadings, prepare a defense, and adequately

represent his clients. The court overruled the motions and

proceeded with a hearing on the contempt information. The

defendants again moved for a continuance at the close of plain-

tiffs’ case, but the court again overruled the motion. There-

upon, the court found the defendants in contempt, ordered

them to remove the ticket booth from Posey County, and fined

the defendants $1,000.00.

As a preliminary matter we must decide whether the first

contempt proceedings were criminal or civil in nature. Our

Supreme Court, in the case of Duemling v. Fort Wayne Com-

munity Concerts, Inc. (1963), 243 Ind. 521, 524, 525, 188

N.E. 2d 274, has discussed this distinction as follows:

“It is evident from that case that a disobedience of a

court order which entitles a party to compliance may

constitute the basis for either or both a criminal and civil

contempt proceeding when the act is done wilfully.

* > > . . > *

“A civil contempt is a violation of a court order which

results in a proceeding for the benefit of the aggrieved

party. It is not an offense primarily against the dignity

<="

of the court, but rather is for the benefit of the party

who has been injured or damaged by the failure of an-

other to conform to a court order issued for the private

benefit of the aggrieved party. Therefore, as pointed out

in Denny v. State (1932), 203 Ind. 682, 182 N.E. 313,

the primary objective of a civil contempt proceeding is

not to punish the defendant, but rather to coerce action

for the benefit of the aggrieved party. Punishment in the

form of imprisonment or a fine levied against the defend-

ant, which goes to the State and not to the injured party,

is characteristic of a criminal proceeding. In a civil con-

tempt action the fine is to be paid to the aggrieved party.

and imprisonment is for the purpose of coercing com-

pliance with the order.”

In the case at bar the information was filed on behalf of the

same plaintiffs as in the restraining order and not strictly on

behalf of the State of Indiana. The information did not charge

that the defendants had wilfully disobeyed the restraining or-

der. The trial court was aware of the distinction, as will be

seen in the discussion of the second contempt proceeding. The

judgment in this first contempt proceeding finds the defendants

to be in violation of the restraining order, orders them to

cease such violations and fined the defendants $1,000.00.

As will be seen later in this opinion, the only criminal con-

tempt found by the trial court was a refusal by the defendants

to pay the $1,000.00 fine assessed in the first hearing.

The defendants contend that the errors relating to this issue

combine to show that the defendants were denied due process

of law. One specification alleges error in that the defendants

were not present at the contempt hearing and were, thus, tried

in absentia. Cases cited and relied upon by defendants all re-

late to criminal cases and are inapplicable to this first contempt

hearing, as said hearing was based on civil contempt and was

not criminal in nature.

_—— * om

Tne defendants also contend that no notice of the proceed-

ings was served upon them. It is true that the defendants have

a right to know the charge which they must defend. The evi-

dence discloses that the defendants were not personally served

with the information or rule to show cause. However, their

attorney was notified by telephone of the hearing and he ap-

peared on behalf of the defendants at that hearing and was

served with the proper parers.

Our Supreme Court, in the case of State ex rel. Brubaker v.

Pritchard, Judge, etc. (1956), 236 Ind. 222, 226, 138 N_E.

2d 233, has stated:

“. . . When an attorney enters his appearance of record

in any litigation, so long as such attorney remains the ex-

isting attorney of record, he is the agent of the party, and

the party is bound by such attorney's knowledge and notice

of the proceedings in that case so long as it is pending.”

It is Our opinion that service to the attorney was sufficient

notice and the defendants cannot complain of lack of notice.

It is stated in 5 1.L.E. 539, Constitutional Law, §219, that:

“A person charged with contempt has the right, as a

matter of due process, to be advised of the charges against

him, to have a reasonable opportunity to meet those

charges by way of defense or explanation, to be repre-

sented by counsel and to testify and call other witnesses

in his behalf, also by way of either defense or explana-

—

It is fundamental that one who is subject to punishment has

a right to be given time to answer. Levick v. Hughlett; Levick

v. State (1946), 224 Ind. 561, 69 N.E. 2d 17, 69 N_E. 2d 597.

Our Supreme Court has held, in the case of State ex rel.

Anderson-Madison, etc. v. Superior Ct. (1964), 245 Ind. 371,

382, 383, 199 N.E. 2d 88, as follows:

— A-10 —

“Directing our attention next to the contempt proceed-

ing here, much the same commentary may be made as in

the removal proceedings. The procedure savors too much

of emotional hastiness, when it should result only after

deliberate consideration. This was not a direct contempt

proceeding, but was indirect in its nature. Burns’ §3-908

(1946 Repl.). This statute requires that the person charged

shall be entitled to have served on him the charge which

*.. . shall clearly and distinctly set forth the facts which are

alleged to constitute such contempt, and shall specify the

time and place of such facts with reasonable certainty. . . .’

The defendant has the reasonable opportunity to purge

himself of such contempt, if it exists. Although the re-

spondent judge says the hearing was in ‘open court,’ the

verified statement of the trustee is to the effect that a con-

versation took place in the judge’s chambers on the day

she was ordered to appear. and that no formal hearing took

place following the court's entry of an order holding her

in contempt and removing her as trustee.

Regardless of the conflict on this point, these critical

proceedings lacked, without question, the bare requirements

of due process, namely, the right to be informed specifically

of the charges and a reasonable opportunity to be heard

thereon.

‘It is a fundamental doctrine of the law that a party

to be affected by a personal judgment must have a day

in court, or an opportunity to be heard. In this con-

nection, it is sometimes declared broadly that every

man is entitled to an opportunity to be heard in a

court of law upon every question involving his rights

or interests, before he is affected by any judicial de-

cision on the question. The judgment of a court

without hearing the party or giving him an oppor-

tunity to be heard is not a judicial determination of

— A-11 —

his righ*s, and is not entitled to respect in any other

tribunal.’ 30A Am. Jur., Judgments, § 26. See also:

Windsor v. McVeigh (1876), 93 U.S. 274, 23 L. Ed.

914.”

Due process requires that the notice given a defendant must

also give that defendant an opportunity to make a defense.

State ex rel. Red Dragon Diner v. Superior Ct. (1959), 239

Ind. 384, 158 N.E. 2d 164.

In the case of Town of Walkerton v. N.Y.C. & St.L.R.R. Co.

(1939), 215 Ind. 206, 214, 18 N.E. 2d 799, it was said:

. . Due process requires notice in some proper form

and an opportunity to be heard before some tribunal, not

necessarily a court or before a jury. Campbell v. State

(1909), 171 Ind. 702, 87 NE 212. There must be a fair

Opportunity to be heard before the matter is finally deter-

es

Finally, this court held in the case of Kaiser Alum. & Chem.

Sales v. Dickerhoff (1964), 136 Ind. App. 258, 199 N.E. 2d

719 that an attorney must be given adequate time to prepare

a defense and file any motions pertinent to the cause and that

the denial of this time is a denial of due process of law. See.

also, Indiana Constitution, Article I, § 12.

In the case at bar Attorney Clouse had no opportunity to file

any answer or any other responsive pleading. He was given no

opportunity to test the validity of the information and the record

discloses that the hearing ensued as soon as Attorney Clouse was

handed the papers. The sufficiency of the information is subject

to aétack, and responsive pleadings are proper in a contempt

action. Holler v. State (1914), 183 Ind. 268, 106 N.E. 364;

Stewart v. State (1894), 140 Ind. 7; Cheadle v. State (1886),

110 Ind. 301.

— A-12 —

For the reasons given and from the authorities cited above it

is our opinion that the first contempt proceeding resulted in a

fundamental denial of due process of law in that Attorney

Clouse was given no opportunity to prepare a defense and ade-

quately represent his client. Although we have held that this is

a civil contempt, in the area of attorney preparation time a

strong analogy exists between the criminal law and the case at

hand. This court has held, in the case of Hartman v. State

(1973), — Ind. Ct. of App. —, 292 N.E. 2d 293, that the

right to counsel involved in due process involves the corollary

right to effective counsel. This court held that to have effective

counsel, that counsel must have adequate preparation time. In

the case at bar not only was the preparation time not adequate.

it was non-existent.

The remaining issue in the first contempt conviction is the

matter of the $1,000 fine assessed against the defendants. A

fine is proper in civil contempt only to repair damage or to

compensate the plaintiffs for injuries resulting from contempt.

Denny v. State, supra.

The test for the determination of damages is set out in the

case of Chadwick v. Alleshouse (1968), 250 Ind. 348, 233

N. E. 2d 162:

. Moreover, that determination or decision may be

considered as final in all respects where, as here, it may

readily be said that it was supported by substantial evi-

dence of probative value.”

We have hereinabove held that this first contempt action was

civil in nature and the authorities cited herein establish that

damages or fines must be compensatory and supported by sub-

stantial evidence. In the case at bar we find no evidence to

support the $1,000 fine assessed. These requirements not having

been met by the trial court, we necessarily hold that the $1,000

fine was improper and void and contrary to law.

Rated caw

we

The defendants were cited for criminal contempt at the second

contempt proceeding because of the refusal of the defendants to

pay the $1,000 fine discussed above. Inasmuch as we have

determined that said fine was improper and void we hold that

the criminal contempt conviction must be reversed, as a void

order cannot serve as the basis of a contempt citation. State

ex rel. Taylor v. Circuit Court (1959), 240 Ind. 84, 162 N. E.

2d 90.

Second Contempt Proceeding

Issues 1 and 4 raised by the second motion to correct errors

relate to the jurisdiction matter discussed and resolved in the

first portion of this opinion and present no new question to this

court.

Issue 2 is based on insufficient evidence. The first segment

of this issue relates to the damages assessed, based upon Indiana

State Police costs incurred in connection with the rock festival.

The court awarded $17,217, based on testimony of officers, but

a field examiner for the State Board of Accounts, called by

plaintiffs, testified that the $17,217 cost would have been in-

curred even if no rock festival had occurred. Damages must be

supported by sufficient evidence, and the evidence does not

support this award to the Indiana State Police. Chadwick v.

Alleshouse, supra.

The second portion of this argument is based on the proposi-

tion that the second contempt citation was criminal in nature.

The trial court in its second judgment specifically differentiated

between criminal and civil contempt. We have heretofore held

that the finding of criminal contempt was improper. The de-

fendants in this section or argument contend that the evidence

fails to show an intent by the defendants to commit contempt.

The judgment of the court recognized that no evidence showed

intent to defy authority of the court, as the verified answer of

ere TT pen 4

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the defendants denied such intent and the trial court recognized

that this answer was binding on that court and specifically found

no intent on the part of the defendants to defy authority of the

court and at the same time found a civil contempt which re-

quired only actual intent to violate the court’s order. (Chad-

wick v. Alleshouse, supra.)

Having determined that the second contempt citation was

civil, it would be redundant to repeat all of the law applicable

thereto. Suffice it to say that the basic elements discussed in the

first portion of this opinion, i.e., the damages to recompense

plaintiffs, information filed by the same parties, offense against

parties rather than the dignity of the court, etc., are all present

in the second contempt proceeding.

Finally, defendants contend that there was no evidence con-

necting the defendant Tom Duncan with the sale of tickets at the

rock festival in violation of the restraining order. An examina-

tion of the record discloses conflicting testimony by the Deputy

Sheriff as to whether or not Mr. Duncan could be identified as

one of the ticket sellers. This, of course will not be reviewed by

this court, as we look only to the evidence most favorable to

the appellze where the evidence is conflicting. (Chicago, Indpls.

& Louisville R.R. Co. v. Carter (1971), — Ind. Ct. of App. —,

274 N.E. 2d 537, 539.)

Issue 3 is whether the court erred in overruling the motion

to discharge the rule to show cause. Defendants cite Burns

§ 3-908, which requires that the rule to show cause set out the

facts which are alleged to constitute the contempt along with the

time and place of such facts. Defendants contend that the rule

to show cause does not meet these requirements. However, the

rule to show cause referred to the petition and information for

contempt and made the same a part of and ordered it attached

to the rule to show cause. The information incorporated with

the rule to show cause fully meets all of the requirements of

§ 3-908, supra.

ee ee

IN NES oe Be

— so

Issue 5 pertains to questions propounded by the plaintiffs con-

cerning violations of the restraining order occurring on Septem-

ber 3, 4, and 5, 1972. Defendants objected at trial to any evi-

dence of violations occurring after September 2, 1972.

The information charged contemptuous actions by the de-

fendants occurred “after 1:00 o'clock P.M. on the 2nd day of

September, 1972, . . . and continuously thereafter until said

rock festival had concluded its activities. . . .” Thus, evidence

concerning violations on September 3, 4, and 5, 1972, was ad-

missible for the reason that the festival continued through said

dates.

Issue 6 concerns the admissibility of evidence of damages re-

sulting from the contemptuous conduct. Defendants contend

that this evidence is not consistent with the pleadings, namely

the information, and that the information does not ask for

money damages and is misleading.

The information alleges violations of the restraining order

and we have held that the proceedings were civil in nature. Our

Supreme Court in Duemling v. Fort Wayne Community Con-

certs, Inc., supra, stated:

“We find this proceeding in harmony with that theory.

It was brought, not in the name of the State, but rather

in the name of the aggrieved party. It was filed in the civil

proceeding out of which it grew, rather than as a separate

proceeding. The relief asked was not punitive, but rather

coercive, and relief granted by the court was coercive

rather than punitive. The judgment served to protect the

interests of the aggrieved party. Denny v. State (1932),

203 Ind. 682, 182 N.E. 313.”

Damages for injuries resulting from the contempt of the re-

straining order are proper if supported by the evidence. Chad-

wick v. Alleshouse, supra. The trial court had the right and duty

— A-16 —

to hear evidence relating to these damages and no error was

committed in hearing such evidence.

Issue No. 7 deals with the alleged constitutional violations

that arose when the trial court assessed the fines in this cause

along with jail sentences if the fines were not paid. Defend-

ants had filed with the trial court two affidavits for remission

of fine; the first affidavit dealt with the $1,000 fine imposed at

the first contempt proceeding and the second affidavit with the

$31,319.41 damages imposed at the second proceeding. The

petitions stated, in essence, that the Internal Revenue Service

had levied upon all of the property of the defendants in the

amount of $52,875; the State of Indiana and County of Posey

had secured a writ of attachment against the property of the

defendants; Milton J. Reis d/b/a Reis Catering Service, had

petitioned the Vanderburgh Superior Court for a writ of at-

tachment against all the property of the defendants; the City

of Evansville had a writ of attachment ($10,000) attaching all

the money and funds of the defendants. Defendants point out

that with all of these attachments and liens against their. prop-

erty they properly informed the court that they did not have

the funds to pay the damages assessed. The trial court over-

ruled both affidavits.

Defendants contend that by overruling the affidavits in ques-

tion and imposing the fines (or imprisonment) they were, in

effect, being sent to prison for failing to pay a debt which would

be in direct conflict with the Constitution of Indiana, Article

I, § 22.

However, the Supreme Court of Indiana stated in the case of

Perry v. Pernet (1905), 165 Ind. 67, — N.E. —, that im-

prisonment in contempt is not imprisonment for debt within the

meaning of the Constitution. See, also, Duemling v. Fort Wayne

Community Concerts, Inc., supra.

Defendants also contend that decisions by the United States

Supreme Court, along with Indiana decisions, prohibit imprison-

ote ll? oe

ment for the failure to pay a fine when the defendant is unable

because of his indigency to pay said fine. Defendants cite the

cases of Williams v. Illinois (1970), 399 U.S. 235, 90 S. Ct.

2018, 26 L. Ed. 2d 586, and Tate v. Short (1971), 401 U.S.

395, 91 S. Ct. 668, 28 L. Ed. 2d 130, where in criminal cases

fines followed by imprisonment for failure to pay the same were

held to be unconstitutional because of an invidious discrimina-

tion worked on a defendant solely because he was too poor to

pay the fine. These cases found this practice to be a violation

of the equal protection clause of the Fourteenth Amendment.

Our Supreme Court, in Perry, supra, stated as follows:

. and the court below, under the terms of said order

of commitment, on the application of appellant and no-

tice to the party to whom the money is due, has the power

to discharge him from custody on his showing that his

failure to pay said amount since the commitment is due

to an actual inability to do so. . .

It was said in Hendryx v. Fitzpatrick, supra, on page

814: ‘We do not mean to be understood that the court has

a general discretion to annul orders passed for the benefit

of a'party to the suit; but that where inability is shown to

comply with the order—as, for instance, insanity, if the

decree requires an act to be done, or poverty, if the de-

cree is for the payment of money—it is according to the

course of the court, and of all courts, to discharge the im-

prisonment, of which the end is proved to be unattain-

able.” ”

In the case of Brown v. Brown (1933), 205 Ind.*664, 187

N.E. 836, our Supreme Court stated that when one has been

imprisoned for failure to comply with an order (similar to the

case at bar) and where said defendant is able to show that he

has not the actual ability to pay for any one of a number of valid |

reasons, then said defendant is entitled to be discharged. The

shes RSD sahoaee |

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MEL GPa ci SORE ADIT pe ht IEEE eo

—s

court went on to hold that a defendant cannot be kept im-

prisoned indefinitely because of a failure to. pay support money

where it is shown that he does not have an ability to make

such payments and cites such a practice as being unconstitu-

tional on the grounds of cruel and unusual: punishment.

In this cause the defendants had the burden of proving they

did not have the actual ability to pay the damages assessed.

The defendants’ affidavits standing alone were not specific

enough to fully inform the trial court of their inability to pay.

Said affidavits only alleged generalities as to the liens and

attachments against their property, did not specifically identify

the source and details of the liens and attachments nor the

amounts of some of the attachments. And, finally, the de-

fendants did not specify their assets, if any.

It is our opinion that these affidavits were not sufficient to

show an inability to pay and the trial court properly denied

the remission of the fine assessed against the defendants. Hav-

ing found the affidavits to be deficient, defendants’ constitu-

tional argument becomes moot.

Issue No. 8 raises the question of whether the decision of

the court was contrary to law and sets up several areas which

the defendants believe are contrary to law.

The first ground is that the decision is indians to law be-

cause the same is not sustained by sufficient evidence. We

have heretofore discussed this issue and determined that said

issue must be resolved at least in part, against the defendants.

The second ground is that the court erroneously held that

the action was in civil contempt. There is no merit in this

contention, as we have heretofore determined this to be civil

contempt.

Defendants also contend once more that the decision is con-

trary to law because the court’s restraining order was void for

— so

lack of jurisdiction. We have heretofore disposed of this argu-

ment by holding to the contrary and shall not consider this

specification further.

The next ground is based upon the premise that the proceed-

ing was in criminal contempt. Defendants contend that the

punishment was in excess of the court's authority, as the statute

provides for fines not exceeding $500 in criminal contempt.

Since this is civil contempt the fines were based on injuries

done to the plaintiffs as a result of the contempt and were in

a compensatory nature. Having determined this is a case of

civil contempt, this specification raises no question.

Finally, the defendants assert that the decision was contrary

to law because “the enjoining of defendants’ business enterprise

is contrary to Federal statutory law: and the court's decision

restrains interstate commerce in violation of the Federal Con-

stitution, being Article I, Section 8, Para. (3) thereof.” De-

fendants contend that their business enterprise (rock festival)

was in the nature of interstate commerce and that the Consti-

tution of the United States prohibits the states from interfering

with interstate commerce as this power was reversed in Article

I § 8 for the Congress of the United States.

The rock festival, although it was held primarily in Illinois,

was based in part at least in Indiana since all ticket sales were

made in Indiana and all land traffic had to pass through Indiana.

The restraining order did not enjoin interstate commerce (i.e.,

the holding of a festival in Illinois), it only enjoined the de-

fendants from holding their rock festival in Indiana, and there

is not a violation of the Constitution or a restraint on interstate

commerce.

The basis of the restraining order was that the festival would

be a danger to the safety and health of the citizens of Posey

County, the State of Indiana, and persons attending the festival.

— A-20 —

It is stated in 15 I.L.E., Health and Safety, § 1, p. 127, that:

“The power of the Federal government to regulate inter-

state commerce does not disable the State from adopting

reasonable measures designed to secure the health and

safety of its people, even though the legislation might in-

directly affect the commerce of the country.”

The court now, for the reasons set out above, reverses the

contempt conviction decreed in the first proceeding herein.

The court further reverses the conviction for criminal con-

tempt for failure to pay the $1,000 fine assessed in the first

proceeding.

The court now finds that the civil portion of the second pro-

ceeding should be modified by the trial court’s striking the

award of $17,217, payable to the Indiana State Police for

salaries and for other expenses from the judgment heretofore

entered in this cause.

Cause remanded to the trial court for entry of a corrected

judgment in compliance with the terms of this opinion. The

civil portion of the second proceeding is now affirmed as herein-

above modified.

Robertson, P.J., and Lybrook, J., Concur.

Se SRD ae UR

te ee See ee

RR a te) mnt

— A-21 —

APPENDIX B

Indiana Court of Appeals Ruling on

Petition for Rehearing

In the Court of Appeals of Indiana

First District

Robert Alexander Smith, et al. .

vs. . No. 1-573 A 78.

Indiana State Board of Health, et al. .

Appellee’s Petition for Rehearing denied this 14th day of

December, 1973.

Appellants’ Petition for Rehearing denied this 14th day of

December, 1973. Hoffman, Jr., Chief Judge.

Indiana Supreme Court Ruling on

Petition to Transfer

In the Supreme Court of Indiana

Robert Alexander Smith, et al. ) (Court of Appeals

= No. 1-573 A 78.

vs. - Le

Indiana State Board of Health, et al.

Appellants’ Petition to Transfer to Supreme Court is denied

this 19th day of April, 1974.

Appellees’ Petition to Transfer to Supreme Court is denied

this 19th day of April, 1974.

Hunter, Actis.2 Chief Justice. DeBruler, Justice, dissents.