Hanley v. STATE, DEPT. OF CONSERVATION

On Rehearing

Henley, C. J.

The Indiana General Assembly in its 1945 Session passed an act which became law, one provision of which exempted former members of the armed services of the United States from paying any consideration for hunting and fishing licenses and providing they be admitted to that class free. The act reads as follows :

“ (a) The director is hereby authorized and required to prescribe and furnish permits to hunt, trap and fish in this state to honorably discharged soldiers, sailors, marines, nurses, or women’s corps of the army, navy and marines, who served in the army, navy, or marine corps of the United States during the Civil War, the War with Spain, the Phil-
*350ippine Insurrection, the service on the Mexican Border during 1916 and 1917, the World War I or the World War II, who, at the time of application for such permit, and who for a full period of six (6) months next preceding the date of application, •where (were) bona fide residents of this state.
“ (b) The form of such permits and the application therefor shall be prescribed by the director. Such permits shall be issued in each county of the state by the clerk of the circuit court, without charge to permittee, only to such soldiers, sailors, marines, nurses, and women’s corps of the army, navy and marines, above mentioned who are, at the time of making application, bona fide residents of such county; except that in the county of Marion, such permits shall be issued only by the director, without charge to permittee, to said soldiers, sailors, marines, nurses, and women’s corps of the army, navy and marines only who are bona fide residents of that county.
§11-1424, Burns, 1953 Cum. Supp., Acts 1945, ch. 93, §1, p. 209.

The appellant, a non-veteran, brought this action in Marion County, venued to Hancock County, praying in an amended complaint a declaratory judgment that the legislative enactment is void as violative of Art. 1, §23 of the Constitution of the State of Indiana, which reads as follows:

“The General Assembly shall not grant to any citizens, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.”

The appellant also contends in his said complaint that the act involved also violates Section 1 of the Fourteenth Amendment of the Constitution of the United States, which provides:

“. . . No state shall make or enforce any law which shall deny ... to any person within its jurisdiction the equal protection of the laws.”

*351The trial court held in favor of the defendant-ap-pellees and against the plaintiff-appellant, whereupon plaintiff-appellant, upon overruling of his new trial motion, prayed and perfected this appeal. His assignment of error and briefs, as well as the briefs of several organizations of veterans, raise the single question of whether the act involved violates the Indiana and United States Constitutions, or either of them.

This court, by an opinion written by GilMson, C. J., prior to his untimely death and concurred in by three other then Judges of this court (with dissent by Em-mert, J.), held that the act involved is unconstitutional and reversed the judgment below for that reason.

Appellees filed a petition for rehearing and, since a majority of the present Judges had assumed the bench subsequent to the judgment of reversal, a re-argument was held and the cause is now ready for final decision on the petition for rehearing filed by appellees. The question now before this court is the same on which confronted Chief Justice Gilkison and was decided by him and three of his then associate Judges.

We recognize the rule that in passing on the question of whether an act is constitutional we may indulge in presumptions in favor of its validity, and we have applied that rule in our present consideration. The State ex rel. Harrison v. Menaugh et al. (1898), 151 Ind. 260, 266, 51 N. E. 117, 51 N. E. 357; Kirtley v. State (1949), 227 Ind. 175, 179, 84 N. E. 2d 712. The right to legislate is vested exclusively in the General Assembly. Art. 4, §1 of the Constitution of the State of Indiana. Under its broad police powers to protect the public health, morals, order, safety and welfare, the General Assembly can go to substantial lengths in ordinary affairs of life and conduct. However, these legislative rights are always limited by the limitations of the state and federal *352constitutions. Kirtley v. State (1949), 227 Ind. 175, 179, supra; The State ex rel. Harrison v. Menaugh et al. (1898), 151 Ind. 260, supra; Townsend v. The State (1897), 147 Ind. 624, 47 N. E. 19; Weisenberger v. State (1931), 202 Ind. 424, 175 N. E. 238; Bedford Quarries Co. v. Bough (1907), 168 Ind. 671, 80 N. E. 529, 14 L. R. A. (N. S.) 418.

Appellees, supported by the Indiana Department of the American Legion, Veterans of Foreign Wars District of Indiana, and Disabled American Veterans, Department of Indiana, Inc., each of which has filed a brief on the petition for rehearing as amicus curiae, have in such briefs stressed the proposition that a classification of veterans for special reward or consideration is constitutional and proper. We have no quarrel with the statement that in many cases the classification of veterans for special rewards or consideration for services rendered their country is constitutional and proper. Military service does furnish a proper basis for legislative classification but only when confined within the limits of the Constitution.

It is of great importance to the peace and prosperity of the state and nation that men and women should be returned from military service in an orderly way to self-supporting occupations, and that those things of which they were deprived by reason of such service be restored to them in as great a measure as possible. However, military service does not relieve a man or woman veteran from the restrictions and limitations imposed upon all the citizens of the state by our Constitution.

Indiana and practically all other states in the union from which citizens have enlisted or been drafted for military service have given to returned veterans, both men and women, bonuses and other gratuities and pref*353erential treatment as compensation or rewards for services rendered. Such considerations have been valid and proper because the acts granting them did not exceed those constitutional limitations established for the welfare and protection of all of the people. The legislature, when granting compensation or special considerations to veterans, is required to act within the limits of the Constitution.

There is a clear distinction between the case at bar and those cases which involve the granting of bonuses or other considerations as compensation or rewards for services rendered. The' whole purpose of such acts is to assist the veterans in readjusting himself to civilian life. The purpose of the act here in question has been concisely stated by appellees themselves in their brief as follows:

“The statute in question clearly shows that its purpose is for the protection of fish and game for the benefit of the citizens of the state.”

The title of the Act (ch. 21, Acts 1937, as amended), of which the section here under consideration is a part, is as follows:

“An Act concerning fish, frogs, mussels, game, wild birds and wild animals and offenses relating thereto.”

Section 10, Acts 1937, ch. 21, as amended, being §11-1401, Burns’ 1942 Replacement, provides:

“It shall be unlawful for any person to fish in, or take, catch, or attempt to take or catch, any fish from the waters of this state, or to hunt, shoot, take, pursue, or trap any wild bird or wild animal in this state, without first procuring a license therefor, as in this act provided, unless such person shall be by this act specifically exempt from so doing.”

To show the persistent legislative intent zealously to *354guard the state’s wildlife it is only necessary to examine certain conservation statutes beginning as early as 1881, excerpts of which are as follows:

“It shall be the duty of said Commissioner to examine the various . lakes, rivers, streams and water courses in this State, and ascertain whether they can be rendered more productive in the supply of fish; also what measures are desirable and expedient to effect this object either in propagating and protecting the fish that at present frequent the same, or in the selection and propagation of other species of fish therein (or both); said Commissioner shall also inquire into and test the. best modes of the artificial propagation of fish in the various waters of the State, and shall procure and superintend the procuring of the fish, fish eggs or spawn, as shall be necessary for said waters and the propagation of the same therein.” Acts 1881, ch. 53, §2, p. 516, R. S. 1881, §5725.
“. . . The best methods of preserving and propagating the game birds and song birds now in the State and shall introduce such varieties of food and Game birds, foreign to the State, as may be deemed for the best interests of the people of the State.
. . . Said Commissioner shall also see that all laws for the protection of fish and game are enforced ____” Acts 1899, ch. 31, §2, p. 44.
“. . . No monies accruing to the state of Indiana from license fees paid by hunters shall be diverted for any other purpose than the administration of the division of fish and game of the department of conservation.” §11-912 Burns’ 1942 Replacement, Acts 1939, ch. 101, §1, p. 517.
“Any and all license fees and any and all monies taxed and collected by, or coming into the hands of the director pursuant to, or by virtue of any of the provisions of this act shall be paid into the state treasury and shall become a part of the fish and game protection and propagation fund, and said fund shall be expended in the propagation of, protection, and purchase of fish, frogs, mussels, wild birds, wild animals, or game, and all other expenses in connection therewith.” §11-1803, Burns’ 1942 Replacement, Acts 1937, ch. 21, §151, p. 64.

*355Section 12 of ch. 21, supra, as amended by Acts of 1951, ch. 286, §1, 879, being §11-1403, Burns’ 1953 Cum. Supp., provides that the licenses therein listed shall be issued “upon the payment of the following respective license fees for the same.”

See §11-1403, Burns’ 1953 Cum. Supp. for list of fees charged for various grades of licenses.

Subsection (d) of §13, of ch. 21, Acts 1937, being §11-1404, Burns’ 1942 Replacement, supra, provides that “All monies received into the hands of the director from the sale of licenses shall be deposited in the state treasury as a part of the fish and game protection and propagation fund.”

Title to wild game and fish is in the state in its sovereign capacity as the trustee of all the citizens in common. No individual has a property right in fish or game while in its natural state. Smith v. State (1900), 155 Ind. 611, 58 N. E. 1044.

The taking of fish or the killing of game is not a right but is a privilege granted by the state under such conditions as it may see fit to impose. Smith v. State, supra.

Under ch. 21, supra, the State of Indiana has granted to her citizens the privilege of hunting and fishing upon the conditions:

(1) That certain game be killed only during the periods and in the amount specified in the act;
(2) That the time of fishing and the daily catch be limited as provided in the act;
(3) That any person desiring to avail himself of the privilege of hunting or fishing procure a license therefor by paying to the duly authorized issuing agent the license fee provided in the act.

*356The clear purpose of the license fee and the legislative intent behind it is to provide funds for the protection and propagation of fish and game. §11-1404, Burns’ 1953 Cum. Supp., supra. May the legislature extend the privilege of hunting and fishing to veterans without requiring them to comply with the condition that every person who desires to exercise the privilege of hunting and fishing shall, in return for such privilege, pay as a license fee a contribution to the fish and game protection and propagation fund? In other words, may this privilege be extended to veterans without requiring them to pay anything toward the expense of regulation, protection, propagation and replenishment of fish and game as non-veterans are required to do? We think not, without a plain violation of Art. 1, §23 of the Constitution of the State of Indiana, set out hereinbefore.

This court, in Fairchild, Prosecuting Atty., etc. v. Schanke et al. (1953), 232 Ind. 480, 487, 113 N. E. 2d 159, reaffirmed the rule pertaining to legislative classification as limited by Art. 1, §23, supra, as stated in Bedford Quarries Co. v. Bough (1907), 168 Ind. 671, 674, supra, as follows:

“The legislature may make a classification for legislative purposes, but it must have some reasonable basis upon which to stand. It is evident that differences which would serve for a classification for some purposes would furnish no reason for a classification for legislative purposes. Such legislation must not only operate equally upon all within the class, but the classification must furnish a reason for and justify the making of the class; that is, the reason for the classification must inhere in the subject-matter, and rest upon some reason which is natural and substantial, and not artificial. Not only must the classification treat all brought under its influence alike, under the same conditions, but it must em*357brace all within the class to which it is naturally related. Neither mere isolation nor arbitrary selection is proper classification. (Citing numerous authorities.) ”

The classification attempted by §11-1424, supra, must be considered with reference to the subject-matter of ch. 21 of the Acts of 1937, as amended. When this act is considered with its amendments and supplementary acts, it must be conceded that the subject-matter of the act is fish and game, and its purpose is their conservation and propagation for the benefit of all the citizens of the state. Is there any distinction between a citizen of- the state who is a veteran and one who is a non-veteran, in the manner and results of catching fish and hunting wild game? Would a citizen with former military service catch less fish or kill less game than one without military service? Is there any reason, with reference to the protection and propagation of fish and game, why a citizen who has had military service should be exempt from contributing to the fund for the conservation and replenishment of the fish and game supply of the state, while another citizen who catches no more fish or kills no more game during the open season, but who was not in military service, must pay for the privilege of fishing and hunting and thereby contribute to such fund?

No valid reason has been furnished us either by appellees or any of the amicus curiae, nor have we been able to find any on our own account. Can it be said that military service and the receipt of an honorable discharge bear any relation to the conservation and propagation of fish and game?

There is no substantial distinction between the present conditions and circumstances of veterans in the attempted classification here in question and those of *358other citizens of Indiana in relation to the protection and conservation of fish and game. In fact, as relates to the subject-matter of the act (ch. 21, supra,) they are all of the same class, i.e., citizens interested in fishing and hunting and in the protection, preservation and propagation of fish and game.

The classification here attempted is so clearly not based upon a substantial distinction with reference to the subject-matter of the fish and game act (ch. 21, Acts 1937 as amended, supra) that we deem it unnecessary to prolong this opinion with further discussion of the question.

It is also suggested on rehearing that the attempted classification here should be sustained because bonus legislation has, in many states, “generally been held constitutional on the theory that the tax provided by the statute for the payment of the bonus was for a public purpose.” There is no question relating to a tax for the payment of a bonus involved in the case now before us, and the authority cited by amicus curiae lends no support to their position. Anyway, the public purpose of the act of which ch. 21, supra, is a part, is the protection, preservation and propagation of game. The exemption allowed tends to increase the take and catch of fish and game and at the same time reduce the funds for protection, preservation and propagation of wild life. The provisions of ch. 21, supra, are therefore artificial, unreasonable and in direct conflict with the purpose of the act. Such attempted classification was not for a public purpose and for these reasons is clearly unconstitutional.

War veterans patriotically risked life, limb and liberty for the principles of constitutional democracy. Their solemn reflection on the issue of this case will surely result in the satisfaction that by sacrificing the *359benefits of free hunting and fishing they are reaffirming an established broad general fundamental constitutional safeguard, transcending their loss of free licenses.

The petition for rehearing is denied.

Bobbitt, J., concurs. Achor, J., concurs with opinion to follow. Emmert, J., dissents with opinion in which Levine, J., concurs.