ON PETITION FOR REHEARING. Upon a reconsideration of the questions involved in the instant case, and the additional authorities cited in support of the petition for a rehearing, I am convinced that a rehearing should be granted, but not for the reason that the law is unconstitutional because of an insufficient title.
The title of the Act in this case questioned expresses the subject of the legislation generally, as will appear from a consideration of the title and the body of the Act. True, the title does not give a complete abstract of the contents of the Act, but such detail is unnecessary. Baltimore, etc., R. Co. v.Town of Whiting (1903), 161 Ind. 228, 68 N.E. 266; Wright v.House (1919), 188 Ind. 247, 121 N.E. 433.
Courts will endeavor to discover legislative intention and effectuate the manifest purpose of the statute from a consideration of the legislative language, but they will not be permitted to legislate, nor are they authorized to give the language used an unnatural interpretation.
The prevailing opinion in this case gives considerable space on the power of the legislature to enact laws licensing or taxing multiple stores. I have no fault to find with revenue laws or a taxing system which is designed especially for the reasonable protection of a lawful industry, whether classed as industrial or merchandising. The courts of this country with general unanimity have sustained legislative enactments which tend to encourage legitimate business activities of general public interest against monopolies and war on *Page 710 reasonable returns which result from a prudent and discrete management. Such was the object of the Anti-Trust law, lately seldom mentioned. What is commonly known as the police power, not yet conclusively defined, is generally considered a power of government reserved to the states for the establishment of such rules and regulations for the conduct of all persons essentially conducive to the public interest or the greater welfare of the state, even though its exercise is not for the suppression of what is offensive, disorderly, or unsanitary.
To my way of thinking, the sole question in this case, under the facts pleaded, is whether appellant is without the legislative definition of the word "store." The majority opinion has chosen to give the word "store," as used in the Act, its dictionary definition instead of the limited meaning given to it by the legislature. The title of the Act relating to stores is general, but in the Act it is specific. In such cases, in the construction of statutes, a specific provision will prevail over a general provision involving the same subject matter. StrausBrothers Company et al. v. Fisher et al. (1928), 200 Ind. 307,163 N.E. 225.
In a commercial sense, lexicographers define the word "store" as "any place where goods are kept for sale, whether by wholesale or retail; a shop." Webster. But the legislature was not content to use the broad dictionary definition when defining "store" in what is commonly known as "The Chain Store Act," ch. 207, Acts 1929, p. 693, for, by § 8, it specifically states the meaning of the word intended as follows: "The term `store' as used in this act shall be construed to mean and include any store or stores or any mercantile establishment or establishments which are owned, operated, maintained or controlled by the same person, firm, corporation, co-partnership or association, either domestic or foreign, in which goods, wares or merchandise of any kind, are *Page 711 sold, either at retail or wholesale." The dictionary definition includes the words "any place," which might well be construed as applying to peanut pushcarts and street corner venders, for they are at a place when the sale is made, while the word "store" in the so-called Chain Store Act is construed to mean any store inwhich goods, wares or merchandise of any kind are sold either at retail or wholesale.
It is said if the legislature intended to exclude filling stations along the roadside, or bulk stations, it would have said so, but on the other hand it may as well be said that if it was the legislative intention to include roadside filling stations and bulk stations without naming them, the legislature would have said a store is "any place where goods are kept for sale," thus indicating an intention to adopt the dictionary definition.
The question at bar involves a penal statute, which is given a liberal construction by the majority opinion, contrary to the settled law in this jurisdiction that penal statutes must be strictly construed and nothing will be added by inference or intendment. VanArsdall v. Indiana Bell Tel. Co. (1926),84 Ind. App. 257, 151 N.E. 19, and cases there cited.
In my opinion the identical question for our decision was considered and decided adversely to the majority opinion in this case by a three-judge United States District Court for the Southern District of West Virginia, Standard Oil Co. of NewJersey v. Fox, Tax Commissioner (1934), 6 F. Supp. 494. The opinion in that case, in my judgment, rests upon sound legal principles, and I am persuaded to adopt it as controlling of the case at bar.
The petition for rehearing should be granted. *Page 712