ON PETITION FOR REHEARING. In their petition for a rehearing the appellees insist that the court erred in holding that chapter 61 of the Acts of 1925 was in conflict with section 23, article I, of the state Constitution. They assert that the decision improperly classifies property, and that the classification made by the act is between income and accumulated property. The amicus curia, in support of their contention, cites two authorities: Jones v. Nicoll (1911), 131 N.Y.S. 341; Trapp v. Brown (1918), 91 N.J.L. 481, 104 A. 302.
In the Jones-Nicoll case the New York court had under consideration the construction of the New York statute, similar to ours, in making a levy of an execution upon a salary due to a city official. From the facts stated in the opinion it appears that the official did not receive a salary or wage by the day, week, or month, but it is shown that the judgment debtor had a sum due to him in excess of $2,000.00 on account of services rendered to the city of New York and at that time in the hands of the comptroller. The Supreme Court held that the execution law providing for a levy upon ten per cent of the "wages, salary, or earnings" did not apply to the judgment debtor in that particular case; that the amount due to him was neither wages, salary, nor earnings; that under the New York statute "this section only affects a case where earnings, wages, or salary are paid in stated amounts, at stated times, or where the method of computation is such that it is so paid"; that the statute did not apply to sums paid in bulk. There is nothing further in the opinion that may be said to apply in the slightest to the case at bar. The *Page 357 opinion illustrates the strict construction placed upon the New York statute.
Likewise the same strict construction is present in Trapp v.Brown, supra. Under a somewhat similar statute providing for a levy and continuing execution against the wages, debts, earnings, salary, income from trust funds, or profits due and owing to the judgment debtor, the Supreme Court of the State of New Jersey held that a levy could not be made upon a sum due to the judgment debtor for the rent of a building in Atlantic City, the amount of the rent due being $4,250.00. It is said that the statute does not include a claim of that nature. In discussing the New Jersey law that court said (p. 483):
"The act itself is in derogation of the procedure at common law, and takes from a debtor and his creditors, regardless of priorities, property in invitum, and without hearing or a notice thereof to creditors. The procedure, therefore, must be in strict compliance with the express requirements of the statute, and no intendment will be made to enable the court or a judge to assume jurisdiction, in the absence of the jurisdictional facts properly evidenced." (Citing authorities.)
The New Jersey statute, like the Indiana statute, provided for the issuance of the continuing execution upon an affidavit and proper showing by the judgment creditor, and without notice. The court there held that an affidavit made by plaintiff's attorney was not sufficient proof. The court pointed out that there was no explanation as to how the judgment debtor was entitled to rent for a building in the sum of $4,250.00 and not be the owner of the building, and why an execution had not been issued and levied upon the building; that there was no explanation as to the nature of the debtor's title to the building. The court clearly indicated the strict *Page 358 rule to be enforced in such procedure by the following language (p. 484):
"The cogent force of this requirement becomes particularly apparent upon the meager facts presented by the petition, because while it becomes manifest that the defendant is the owner of property amply capable of satisfying an execution, for the amount involved, it is nowhere explained whether the property is encumbered, or what the equity of the defendant therein may be. Nor is it made apparent whether other and prior lienors to this judgment creditor may not be entitled to a preference over this plaintiff as to what particular fund. The result may be that upon a mere ex parte application of this nature, without notice or hearing to any party in interest, the vested rights of prior lienors may be eliminated and in effect subverted. In such a situation, a party whose interests would be injuriously affected might well insist that there was an absence of due process of law, and successfully invoke that provision of the fourteenth amendment of the federal constitution as a barrier to the deprivation of his rights."
It is held that the New Jersey law did not apply in that case. The Supreme Court was affirmed by the Court of Errors and Appeals of that state as reported in 107 A. 413 and 822.
The New Jersey opinion is more of an authority against the appellees than for them. Appellees seem to overlook the fact that this court in the original opinion held that the 1925 garnishee law granted to one class of citizens privileges and immunities which upon the same terms did not equally belong to all citizens. The court was not called upon and did not undertake to define the meaning and distinction of the words "debts, earnings, salaries, wages, income from trust funds, or profits," but it measured the statute by the standard set up in section 23, article I, of the Constitution and the equality clause of the Fourteenth Amendment of *Page 359 the Federal Constitution. The appellees give little attention to that subject, but point out the numerous definitions and distinctions of the words "income," "earnings," "profits," "tangible and intangible property," etc., as defined by various statutes which apply the terms to uses and purposes of the particular statute.
Appellees concede necessarily that every resident householder is entitled to his exemption to the amount of six hundred dollars out of property owned by him at the time the execution is levied, but they contend that wages and earnings to become due in the future cannot be included for the reason that they are not property present at the time. They are correct in this contention. But when such future earnings, wages, and income become due, they will then become a present asset upon which an execution could be levied, and which the judgment debtor could claim as exempt.
It must not be overlooked that the statutes of this state afford many provisions for the collection of debts. Liens of various kinds are provided; proceedings supplementary to 8. execution and other methods for attaching property and satisfying judgments. On the other hand the Constitution, section 22, article I, of this state, together with the householder's exemption laws and the statutory laws against the assignment of wages, the latter being included in sections 40-201 to 40-212, Burns 1933, provides for the protection of the wage earner and his family. All of these statutes must be construed inpari materia when dealing with the question of executions and exemptions. The constitutional provision for exemptions and the laws enacted pursuant thereto, together with the decisions of this court, are convincing that their purpose is to extend protection to those in need. In Cleveland, etc., R. Co. v.Marshall (1914), 182 Ind. 280, 105 N.E. 570, this *Page 360 court had under consideration the statute prohibiting a husband from assigning his future wages without his wife's written consent. Section 4 of the act prohibits him from making such assignment without her consent. The court said (p. 285):
"It is evident that in enacting § 4, supra, of the act of 1909, our legislature was controlled by the same purpose which led the framers of our Constitution to command, by § 22 of our bill of rights (Art. I, § 22, Constitution), that liberal exemption laws be enacted, and which inspired the subsequent enactment of our many statutes designed for the protection of the wives and children of resident householders."
It has been the policy of our laws for years, and it is within the spirit of section 22, article I, of our Constitution that the unfortunate and needy shall be protected, and a 9. construction most favorable to that class will be adopted by this court, especially in passing upon a law such as ch. 61 of the act of 1925, which provided for a procedure in derogation of the common law.
The appellees have pointed out no reason to convince the court that the act in question does not unjustly and unequally and arbitrarily discriminate between persons of the same class similarly situated. In strong language they condemn those who do not pay their debts and insist that the court's decision herein helps that class to be dishonest. The Constitution guarantees to all citizens the equal protection of the law. The court is not passing upon a moral question, but a legal one in construing the garnishee act. If it were a moral question the Constitution extends protection to the debtor at least equal to the protection it extends to the creditor (section 22, article I, Constitution). The creditor extends credit to the debtor voluntarily and in anticipation of profit to himself. He could withhold credit. It *Page 361 so happens in many cases that credit is extended upon the moral risk and in the belief that the profit to be realized justifies the credit.
Appellee argues that it is of great benefit to the debtor to be able to secure credit upon his future unearned income; that the privilege of mortgaging his future earnings places him upon an equality with the man of property. Whether such privilege is or is not beneficial is, to say the least, quite controversial, and though that point is pressed with much vigor by the appellees in their brief, still this court is of the opinion that it is not to be called upon to pass upon such question in this proceeding.
Finding no reason to reverse the decision heretofore rendered the petition for rehearing is denied.