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of property, without being an infringement | On the one hand we have the legislative upon the due process of law clauses of either determination; on the other the impeachConstitution, even though compliance with ment of that determination by the opinion the specific act shall require a large expen- of witnesses, which, if admissible, would seem diture of money, and it will be presumed to cover every phase of the case as presentthat the act is reasonable, unless the con- ing an unreasonable and arbitrary exercise trary appears from the facts of which the of legislative authority. What the evidence courts will take notice. State v. Barrett, might be in another case under the same act, 172 Ind. 169, 87 N. E. 7; State v. Rich- as showing good cause for the enactment, creek, supra, and cases cited. only demonstrates the inadmissibility of this evidence for any purpose. It would be a dangerous rule to declare that the validity or invalidity of an act of the Legislature can be the subject of collateral attack as to the facts upon which the Legislature has acted; that is, that a jury may determine from evidence adduced before it, or from lack of evidence, that an act is or is not invalid, with as many varying conclusions as there might be bodies or triers, or upon such facts as ingenuity might suggest as matter of opinion or actual facts in evidence. The question of the validity of a legislative act is necessarily one of law and not of fact, and is not the subject of inquiry by triers of fact, and cannot be made to depend upon the testimony of witnesses, where the question is one with. in the competency of the Legislature to enact (that is, within its power), and its validity cannot be contested or brought into review by inquiries of fact into matters extraneous of the act itself, of which courts may not take judicial notice. State v. Wheeler, 172 Ind. 584, 89 N. E. 1, 19 Ann. Cas. 834, and cases cited; Pittsburgh, etc., Ry. Co. v. Hartford City, 170 Ind. 674, 82 N. E. 787, 85 N. E. 362, 20 L. R. A. (N. S.) 461, and cases cited; State v. Barrett, supra; Hovey, Governor, v. State, 119 Ind. 395, 21 N. E. 21; Hovey, Governor, v. Foster, 118 Ind. 502, 21 N. E. 39; City of Indianapolis v. Navin, 151 Ind. 139, 47 N. E. 525, 51 N. E. 80, 41 L. R. A. 337; Mode v. Beasley, 143 Ind. 306, 42 N. E. 727; Soon Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. 730, 28 L. Ed. 1145; Lusher v. Scites, 4 W. Va. 11; Stevenson v. Colgan, 91Cal. 649, 27 Pac. 1089, 14 L. R. A. 459, and note, 25 Am. St. Rep. 230, and note; De Camp v. Eveland, 19 Barb. (N. Y.) 81; Cooley's Constitutional Limitations (7th Ed.) p. 267 et seq.; Tiedman on Police Powers, §
 Regulation is the normal form of operation of the police power, and it operates on the relation which the property or rights affected bears to the danger or evil which is to be provided against. The courts can have nothing to do with the wisdom or expediency of legislative measures, or cost of compliance with them, as a rule; but, if the Legislature is the sole judge of the necessity of the measure it enacts, there could be no limitation on the so-called police power, and it is everywhere regarded under constitutional government that a measure must not be unreasonable, and it is necessarily of the very essence of constitutional government and co-ordinated power. Freund, Police Power, §§ 8, 15, 16, 17, 18, 20, 21; Tiedman, Limitations of Police Power, §§ 1, 4, 144. It may be a matter of degree, but it must not be unreasonable, for it is apparent that a measure may be unreasonable from an excess of degree, and the question ordinarily is whether the regulation becomes prohibitive, destructive, or confiscatory, or reasonably adapted to promote some public purpose, or some purpose in which the public is interested, or in which the lives, health, or safety of classes of the public are directly interested, or affecting others indirectly, as, for example, in respect to safety appliances. Republic, etc., Co. v. State, 160 Ind. 379, 66 N. E. 1005, 62 L. R. A. 136; Union Bridge Co. v. United States, 204 U. S. 364, 27 Sup. Ct. 367, 51 L. Ed. 523; Lawton v. Steele, 152 U. S. 133, 137, 14 Sup. Ct. 499, 38 L. Ed. 385; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; Munn v. Illinois, 94 U. S. 145, 24 L. Ed. 77.
 Courts will not attempt fine distinctions with respect to the matter of reasonableness or unreasonableness of a statute, and ordinarily it must be plain that no circumstances 73. could justify an act before courts are authorized to interpose. State v. Barrett, supra.  As here presented, this court is confronted squarely with the proposition whether it is conclusively bound by the presumption that there were reasons presented to the Legislature as the basis for the act, as to which the court cannot be informed, as presented by the act itself, or whether evidence here adduced is admissible as tending to show that the act is arbitrary and unreasonable. The effect of such-evidence is of course a collateral attack upon the legislative inquiry, judgment, and declaration (that is, to impeach it), and we fully appreciate the gravity
If it cannot be made to appear that a law is in conflict with the Constitution by argument deduced from the language of the law itself, or from matters of which a court can take judicial notice, then the act must stand. The testimony of expert or other witnesses is not admissible to show that in carrying out a law enacted by the Legislature some provisions of the Constitution may possibly be violated. People v. Durston, 119 N. Y. 569, 24 N. E. 6, 7 L. R. A. 715, 16 Am. St. Rep. 859, 864, and cases cited; People v. Worden Grocer Co., 118 Mich. 604, 77 N. W. 315; People v. Blerding, 254 Ill. 579, 98 N. E. 982, 40 L. R. A. (N. S.) 893, 898; Bonnett
L. R. A. (N. S.) 486, 128 Am. St. Rep. 1061, the county, then on its cashier, secretary, or 1068.
 We certainly cannot know that a longer car with two adjustable and oscillating four-wheeled trucks, instead of four rigid wheels, will not ride more comfortably, and it is probable with more safety. At least the court cannot say that it is unreasonable, but is bound to presume that there were facts before the Legislature which would show it not to be unreasonable, and we hold that it cannot be the subject of attack, by oral evidence, as is sought to be done in this case as unreasonable, and arbitrary, and confiscatory. We do not place this conclusion on any ground of abstract justice or judicial notions of natural right, or equity, but upon the ground that the act cannot be attacked by oral evidence as to its unreasonableness, or the cost of expense, or the hardship which may result from compliance, for the reason that the question is one of power in the Legislature as a police regulation, with which courts may not interfere, unless they can say that it is not within the power, or that they judicially know that there could be no reason or reasons for the act.
[7, 8] It is next urged that the act is invalid because its going into effect is made to depend upon some other authority that is provided in the Constitution, in violation of article 1, § 25, and in violation of section 26, art. 1, as authorizing the suspension of laws without the authority of the General Assembly, and invalid under articles 3 and 4 of the Constitution, as delegating legislative powers to the Railroad Commission under sec
tions 5 and 7 of the act.
Appellant is not prosecuted here for the violation of any order of the Railroad Commission, the taking effect or suspension, enforcement, or validity of which might be involved under sections 25 or 26 of article 1. but for the violation of sections 1, 2, and 3 of the act which are not involved with sections 5 and 7, and are entirely independent; and if the latter are invalid, as to which we express no opinion, the valid and the invalid sections are independent and readily separable, and appellant cannot complain of an act which, if invalid, is not in question and does not affect it. Hammer v. State, 173 Ind. 199, 204, 89 N. E. 850, 24 L. R. A. (N. S.) 795, 140 Am. St. Rep. 248, 21 Ann. Cas.
The judgment is affirmed.
(181 Ind. 374)
JESTER v. BARRETT et al. 1 (No. 21.841.) (Supreme Court of Indiana. June 4, 1913.) CORPORATIONS (8 507*)-ACTION-SERVICE ON
other specified officers or agents, service of proof an apartment building, managed by a domescess in an action against a nonresident owner tic corporation operating an independent business, and acting incidentally as agent in the management of the building, on the secretary of the corporation is insufficient in the absence of showing that no higher officer could be found in the county.
[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1971-1974, 1976-2000; Dec. Dig. § 507.*]
Appeal from Superior Court, Tippecanoe County; James P. Wason, Judge.
Action by Ella M. Jester against Henry W. Barrett and another. From a judgment for defendants, plaintiff appeals. Affirmed.
George P. Haywood and Charles A. Burnett, both of Lafayette, for appellant. James C. Blacklidge, Conrad Wolf, and Earl B. Barnes, all of Kokomo, for appellees.
MYERS, J. Appellant filed a complaint November 19, 1906, an amended second paragraph of which is set out in substance, in the case of Tippecanoe Loan & Trust Co. v. Jester (No. 21,718) 101 N. E. 915, at last term, against the Tippecanoe Loan & Trust Company and the appellees here, and the elevator boy, upon which a summons was issued to the sheriff of Tippecanoe county, directed against all defendants, and a return "Served the of service made as follows: within summons as commanded on the within named defendants Henry W. Barrett and John W. Barr, Jr., by reading the same to and within the hearing of and by leaving a true copy thereof with Samuel C. Moore, secretary and treasurer of said Tippecanoe Loan & Trust Company, which said company is the agent of said last-named defendants in charge of the business of said defendants in the city of Lafayette, Tippecanoe county, state of Indiana; neither of said last-named defendants and no other agent of said defendants being found within my bailiwick. This 21st day of November, 1906. John W. Ray, Sheriff. M. Roseberry, Deputy."
Appellees Barrett and Barr filed a plea in abatement on the ground of want of jurisdiction over their persons, alleging the filing of the complaint November 19, 1906; that they were then and at all times have been residents of Kentucky; that no attempt was made to serve the summons on any other person or persons than Moore, secretary, and no other summons or process was issued in the cause; that the Tippecanoe Loan & Trust Company was acting for and on their behalf, and "for the sole purpose of renting and collecting the rents and managing a certain parcel of real estate upon which was a flat building, with power to employ servants about the flat building, including the elevator boy in the building, but the trust company was not the agent of defendants for
Under Burns' Ann. St. 1908, § 319, providing that process against a corporation may be served on the president, presiding officer, chairman of the board of trustees, or other chief officer, or, if its chief officer is not found in *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
any other purpose; that Moore was not their agent for any other business or purpose; that the trust company was not authorized to accept or receive service of summons or any other legal process, and especially not authorized to receive or accept service or act for them in this cause; that they did not have an office in Tippecanoe county for the transfer (transaction?) of business, and did not have or maintain any agency whatever in Tippecanoe county for the transfer (transaction?) of business, and no one was authorized to do business for them, except the particular business above set out; that the defendants have not, nor has either of them at any time had, nor do they now have, an office or agency in said county and state for the transaction of business, and no one is authorized to transact any business for the said defendants, or either of them, other than as above set out; that the said Tippecanoe Loan & Trust Company has never at any time been the agent or clerk employed in any office or agency of these defendants, or either of them, in said Tippecanoe county, state of Indiana, or in any other county in said state or elsewhere, and has not at any time been authorized to transact business for these defendants, or either of them, except as above set out; that the said Samuel C. Moore has never at any time, and is not now, the agent or clerk employed in any office or agency of these defendants, or either of them, in said Tippecanoe county, state of Indiana, or in any other county in said state or elsewhere, and has never been authorized to do any business whatever for these defendants, or either of them, except as above set out; that on the said 21st day of November, 1906, the said Tippecanoe Loan & Trust Company was, as these defendants are informed and believe, in charge of an office controlled solely by the said trust company; that it did. not maintain its office as a clerk or employé of any other person or corporation, but acted solely for itself, on behalf of persons having business to do with said corporation; that the trust company was not at the time said summons was so served, nor has it been at any time, in charge of or connected with, or in any manner, any office or place of business of these defendants, or either of them, in Tippecanoe county, state of Indiana, for the transaction of business, except to do the business in the manner and as above set out; that the said Samuel C. Moore was not, at the time said summons was so served, nor has he been at any time since, in charge of or connected with, in any manner, any office or agency of these defendants, or either of them, in Tippecanoe county, state of Indiana, for the transaction of business, and has had no authority to transact any business for these defendants, except as above set out; that, as above alleged, there never has been any attempt whatever to bring these defendants,
court of Tippecanoe county, state of Indiana, in this cause, in any other manner than by the said summons so pretended to be served, as aforesaid, upon the said Samuel C. Moore, secretary of the said Tippecanoe Loan & Trust Company: Wherefore,” etc.
Appellant replied, admitting that this cause was brought on November 19, 1906; that said defendants are each nonresidents of the state of Indiana and residents of the state of Kentucky, as alleged in said plea; that the defendants are now and were at the time of the filing of the complaint in this cause, and on the 28th day of December, 1904, and for more than two years prior thereto, the owners of the ground and the building thereon situated, known as Columbia Flats, located on the northwest corner of Columbia and Seventh streets, in the city of Lafayette, Tippecanoe county, Ind.; that said building on said 28th day of December, 1904, and for more than two years prior thereto was and ever since has been used and managed as an apartment house by said defendants Barrett and Barr, and is and was at all of said times used and occupied by many persons as families and otherwise as tenants of the said defendants Barrett and Barr; that the conduct, management, and operation of said apartment house by said defendants Barrett and Barr is the only business conducted by said defendants Barrett and Barr in said Tippecanoe county; that the Tippecanoe Loan & Trust Company is a corporation organized under and by virtue of the laws of the state of Indiana, with its principal office and place of business in the city of Lafayette, Ind., and was on said 28th day of December, 1904, and for some time prior thereto, ever since has been, and is now the agent of the said defendants Barrett and Barr in the management, conduct, and operation of said apartment house as such, and that as such agent it had the authority and it was its duty to look after, and it did look after, the repairs of said apartment house, and employ and discharge the employés employed in and about the conduct and operation of said apartment house, and did employ as elevator boy George Mohr, who was in charge of said elevator in said apartment house on the said 28th day of December, 1904, as alleged in the complaint in this action, and had authority to rent and did rent the different apartments of said apartment house and collect the rent therefor, and had authority, and it was its duty as such agent, to do and did do and perform all things necessary for the conduct, management, and operation of said building as such apartment house; that said cause of action in this cause, as alleged in the complaint herein, grew out of the management and conduct of said apartment house as conducted by said agent; that said action is a suit to recover damages for personal injuries received by plaintiff, caused by falling into the shaft
of the door to said elevator being left open through the negligence and carelessness of said defendants in the operation of said elevator in said building, and without any fault of plaintiff; that said Tippecanoe Loan & Trust Company has an office in the city of Lafayette, and its business is largely that of transacting business as agent for other persons; that as such agent, during all said times, it transacted the business of the said defendants Barrett and Barr at its said office in the city of Lafayette, Tippecanoe county, Ind., and the office or agency of the said defendants Barrett and Barr for the transaction of their business by said Tippecanoe Loan & Trust Company in the management, control, and operation of said apartment house, as aforesaid, was at the office of said Tippecanoe Loan & Trust Company in said city of Lafayette, and the said office of said Tippecanoe Loan & Trust Company in said city of Lafayette, Tippecanoe county, Ind., was, at all the times herein before mentioned, the office of the said defendants Barrett and Barr for the transaction of their business in Tippecanoe county, Ind.; that said Moore was on the 28th day of December, 1904, for a long time prior thereto, and ever since has been secretary and treasurer of the Tippecanoe Loan & Trust Company; that when said complaint was filed in said court, as aforesaid, summons was issued thereon by the clerk of said court to the sheriff of Tippecanoe county for service upon each and all of the defendants named in said cause; that neither of said defendants Barrett and Barr was found by the sheriff of said county within said Tippecanoe county; that neither of said defendants Barrett and Barr was at said time of the issuing of said summons, or for a long time prior thereto, or at any time since has been within said Tippecanoe county; that the sheriff of said Tippecanoe county, not finding said defendants, or either of them, within said Tippecanoe county, served said summons for said defendants and each of them upon the said Tippecanoe Loan & Trust Company, as the agent for the said defendants Barrett and Barr in charge of the said business of said defendants in the city of Lafayette, Tippecanoe county, Ind., by reading said summons to and within the hearing of and by leaving a true copy thereof with the said Samuel C. Moore, secretary and treasurer of said Tippecanoe Loan & Trust Company: Wherefore, etc.
Appellant filed a second paragraph of reply to appellees' plea to the jurisdiction of the court, alleging substantially the same facts as in the first paragraph, except it is alleged that appellees were during all the time partners in the conduct of the business of operating the apartment house by and through the trust company, and that it was the only business conducted by them as partners in Tippecanoe county, Ind.: Where
Appellees' demurrers to the the first and second paragraphs of reply, for want of facts, was sustained as to each, and appellant excepted and elected to stand on the ruling on these demurrers, and judgment was rendered against her in favor of appellees. The action of the court in sustaining the demurrers present the only question to be determined.
Appellant's position is that facts are averred bringing appellees within the provisions of section 311, Burns 1908. It is contended by appellees: First, that section 311 is not a service section, but a venue section; and, second, that, if it can be considered a service section, service must in case of an agent corporation be made in accordance with section 319, Burns 1908, by service on the "president, presiding officer," etc., and that service on Moore, secretary, is not service on the corporation in the absence of a showing that the "chief officer" could not be found in the county, and that neither the return or the reply discloses such fact, hence the service is not good as to any one; third, this being an action in tort, there could be no agency for the commission of a tort, but agency as such must arise from contract; and, fourth, that if section 311 be so construed as to authorize a personal judgment against a nonresident, on nonresident, on service on an agent under that section, it is in violation of section 2 of the fourth article and of the fourteenth amendment to the federal Constitution as denying the equal protection of the laws and due process of law and abridging the privileges and immunities of citizens of the United States.
In view of the conclusions of the court, it becomes unnecessary to consider the question of the constitutionality of section 311, or to construe it, for the reason that even if constitutional as to nonresidents of the state, as to which we express no opinion, service was not made in the manner required by section 319, Burns 1908. Mr. Moore, secretary of the trust company, was not a proper person upon whom service could be made without a showing that the "president, presiding officer, chairman of the board of trustees," in the order named in the statute, could not be found in the county. If in case of suit against a corporation service must be made in the order named in the statute, there is quite as much, if not more, reason that, if it is to be substituted service for another, the statute must be followed, and such is the requirement as to the corporation itself. Southern, etc., Ry. Co. v. Indianapolis, etc., Ry. Co., 158 Ind. 360, 364, 81 N. E. 65, 13 L. R. A. (N. S.) 197; Toledo, etc., Ry. Co. v. Owen, 43 Ind. 405. The service is shown to be on Mr. Moore, secretary of the company, an officer of the second class, without any showing that no higher officer could be found in the county.
Under the allegations of the answer, the
for a special purpose. It was not an agent P. B. Colerick and Leonard, Rose & Zolwhose business it was to operate appellees' lars, all of Ft. Wayne, for appellant. Harry business, but an independent corporation H. Hilgemann and Thomas & Townsend, all operating an independent business of its of Ft. Wayne, for appellee. own, and, as incident in the operation of its business, was agent in the management of the apartment building. Neither was Mr. Moore, as secretary, agent for appellees, but an officer of a corporation, a mere incident of the business of which was to manage appellees' property. If such service, under the return and showing here made, would not be good as to the corporation, it certainly cannot be good service upon it as agent, in the absence of a showing that the other officers or persons on whom service is authorized could not be found in the county. The judgment must be affirmed, and it is
(179 Ind. 583)
SNIDER v. SNIDER. (No. 21,947.) (Supreme Court of Indiana. June 3, 1913.) 1. DIVORCE (§ 225*) ALIMONY PENDENTE LITE-ALLOWANCE. Both at common law and under Burns' Ann. St. 1908, § 1080, providing that pending a divorce the court will make such orders relative to the expenses of such suit as will insure the wife an efficient preparation of her case and a fair trial, an allowance of suit money may be made to a wife, even though she owns some separate property and by sacrificing it might obtain sufficient funds to conduct the cause; the purpose of the statute and the allowance being to place the parties on an equality.
[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 647-650; Dec. Dig. § 225.*] 2. DIVORCE (§§ 211, 286*)-TEMPORARY ALI
The determination of whether there is a necessity for an allowance for temporary alimony, as well as the amount and the ability of the husband to pay, rests in the sound discretion of the trial court, which will be interfered with on appeal only when an abuse is
[Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 613, 769, 770; Dec. Dig. §§ 211, 286.*]
3. DIVORCE (§ 215*)-ALIMONY-SUIT MONEY. In determining the amount of an allowance to a wife for temporary alimony, the ability of the husband to pay and the wife's necessities
must be considered.
[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 632-634; Dec. Dig. § 215.*] 4. DIVORCE (§ 286*)-ALIMONY-ABUSE OF DIS
COX, J. Appellant sued appellee for a divorce, and she appeared and asked an allowance of $200 for attorney's fees that she might make her defense. After a hearing on this question the court ordered appellant to pay to appellee the sum named within five days. From this interlocutory order this appeal is brought.
The basis of the claim made in behalf of
appellant that the order was improperly made is that it is made to appear that apmade is that it is made to appear that appellee had ample means and credit of her own to enable her to support herself and make her defense, and that therefore the allowance was an abuse of the discretion possessed by trial courts in such cases.
In appellee's verified application for the allowance it shows that the parties were married in 1880 and were separated from bed and board for a limited time by decree of the court rendered in 1909, at which time the court allowed her $1,000 and $20 per month; that appellee at the time the allowance now appealed from was asked owned 50 acres of land in Allen county worth about $50 an acre, of which only 20 acres were cleared and under cultivation; that she also had a note for $1,500 secured by mortgage on real estate; that since the decree of separation she had built a house and barn on this land at an expense of $1,800, and had also been to expense in fencing and buying stock for her farm, and had so used all the money allowed her by that decree and $1,000 which she had borrowed and pledged the mortgage note for $1,500 as security; that she owed various additional sums amounting in the aggregate to something more than $150; that she had no other money or means or sources of income than that stated, and no means of support other than the cleared 20 acres, which was insufficient for her support, and that she cannot borrow more money on the $1,500 note. It is further shown that appellant at the time owned 150 acres Allen county worth $100 an acre, with maof unincumbered, well-improved real estate in chinery, stock, and other personal property worth between $3,000 and $4,000; and that in addition she was informed and believed he was worth, in money in bank and loaned that she was then 64 years old and had borne on real estate, $30,000. It was further shown appellant four children, all of whom had become of age; that she had helped to clear her
Appeal from Circuit Court, Allen County; land and do the work on her farm, but could E. O'Rourke, Judge.
Suit for divorce by Christian Snider against Lavina Snider. From an order allowing defendant suit money, plaintiff appeals. Affirmed.
do so no longer on account of growing infirmity, and that appellant had ceased making the payments of $20 a month under the former decree.
In a verified statement in opposition to the