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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 [3] Regulation is the normal form of op- evidence for any purpose. It would be a daneration of the police power, and it operates gerous rule to declare that the validity or inon the relation which the property or rights validity of an act of the Legislature can be affected bears to the danger or evil which the subject of collateral attack as to the is to be provided against. The courts can facts upon which the Legislature has acted; have nothing to do with the wisdom or ex- that is, that a jury may determine from evipediency of legislative measures, or cost of dence adduced before it, or from lack of evicompliance with them, as a rule; but, if the dence, that an act is or is not invalid, with Legislature is the sole judge of the neces- as many varying conclusions as there might sity of the measure it enacts, there could be be bodies or triers, or upon such facts as no limitation on the so-called police power, ingenuity might suggest as matter of opinand it is everywhere regarded under constitu- ion or actual facts in evidence. The question tional government that a measure must not of the validity of a legislative act is necesbe unreasonable, and it is necessarily of the sarily one of law and not of fact, and is not very essence of constitutional government and the subject of inquiry by triers of fact, and co-ordinated power. Freund, Police Power, cannot be made to depend upon the testimony $$ 8, 15, 16, 17, 18, 20, 21; Tiedman, Limi- of witnesses, where the question is one with. tations of Police Power, $8 1, 4, 144. It may in the competency of the Legislature to enact be a matter of degree, but it must not be un-(that is, within its power), and its validity reasonable, for it is apparent that a meas-cannot be contested or brought into review ure may be unreasonable from an excess of by inquiries of fact into matters extraneous of degree, and the question ordinarily is wheth- the act itself, of which courts may not take er the regulation becomes prohibitive, de- judicial notice. State v. Wheeler, 172 Ind. structive, or confiscatory, or reasonably adapt. 584, 89 N. E. 1, 19 Ann. Cas. 834, and cases ed to promote some public purpose, or some cited; Pittsburgh, etc., Ry. Co. v. Hartford purpose in which the public is interested, or City, 170 Ind. 674, 82 N. E. 787, 85 N. E. in which the lives, health, or safety of classes 362, 20 L. R. A. (N. S.) 461, and cases cited ; of the public are directly interested, or af- State v. Barrett, supra; Hovey, Governor, fecting others indirectly, as, for example, v. State, 119 Ind. 395, 21 N. E. 21; Hovey, in respect to safety appliances. Republic, Governor, v. Foster, 118 Ind. 502, 21 N. E. etc., Co. v. State, 160 Ind. 379, 66 N. E. 1005, 39; City of Indianapolis v. Navin, 151 Ind. 62 L. R. A. 136; Union Bridge Co. v. Unit- 139, 47 N. E. 525, 51 N. E. 80, 41 L. R. A. ed States, 204 U. S. 364, 27 Sup. Ct. 367, 51 337; Mode v. Beasley, 143 Ind. 306, 42 N. E. L. Ed. 523; Lawton v. Steele, 152 U. S. 133, 727; Soon Hing v. Crowley, 113 U. S. 703, 137, 14 Sup. Ct. 499, 38 L. Ed. 385; Mugler 5 Sup. Ct. 730, 28 L. Ed. 1145; Lusher v. Sciv. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 tes, 4 W. Va. 11; Stevenson v. Colgan, 91: L. Ed. 205; Munn v. Illinois, 94 U. S. 145, 24 Cal. 649, 27 Pac. 1089, 14 L. R. A. 459, and L. Ed. 77.

note, 25 Am. St. Rep. 230, and, note; De [4] Courts will not attempt fine distinctions Camp v. Eveland, 19 Barb. (N. Y.) 81; Coowith respect to the matter of reasonableness ley's Constitutional Limitations (7th Ed.) p. or unreasonableness of a statute, and ordi- 267 et seq.; Tiedman on Police Powers, 8 narily it must be plain that no circumstances 73. could justify an act before courts are author- If it cannot be made to appear that a law ized to interpose. State v. Barrett, supra. is in conflict with the Constitution by argu

[5] As here presented, this court is con- ment deduced from the language of the law fronted squarely with the proposition wheth-itself, or from matters of which a court er it is conclusively bound by the presump- can take judicial notice, then the act must tion that there were reasons presented to the stand. The testimony of expert or other Legislature as the basis for the act, as to witnesses is not admissible to show that in which the court cannot be informed, as pre- carrying out a law enacted by the Legislature sented by the act itself, or whether evidence some provisions of the Constitution may poshere adduced is admissible as tending to sibly be violated. People v. Durston, 119 N. show that the act is arbitrary and unreason-Y. 569, 24 N. E. 6, 7 L. R. A. 715, 16 Am. able. The effect of such-evidence is of course St. Rep. 859, 864, and cases cited; People v. a collateral attack upon the legislative inqui- Worden Grocer Co., 118 Mich. 604, 77 N. W. ry, judgment, and declaration (that is, to im- 315; People v. Blerding, 254 Ill. 579, 98 N. peach it), and we fully appreciate the gravity 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.

other specified officers or agents, service of pro[6] We certainly cannot know that a long-of an apartment building, managed by a domes

cess in an action against a non resident owner er car with two adjustable and oscillating tic corporation operating an independent busifour-wheeled trucks, instead of four rigid ness, and acting incidentally as agent in the wheels, will not ride more comfortably, and management of the building, on the secretary of it is probable with more safety. At least the the corporation is insufficient in the absence of court cannot say that it is unreasonable, but in the county.

showing that no higher officer could be found is bound to presume that there were facts [Ed. Note. For other cases, see Corporations, before the Legislature which would show it Cent. Dig. 88 1971-1974, 1976-2000; Dec. Dig. not to be unreasonable, and we hold that it 8 507.*]

§ cannot be the subject of attack, by oral ev- Appeal from Superior Court, Tippecanoe idence, as is sought to be done in this case County; James P. Wason, Judge. as unreasonable, and arbitrary, and confis- Action by Ella M. Jester against Henry W. catory. We do not place this conclusion on Barrett and another. From a judgment for any ground of abstract justice or judicial defendants, plaintiff appeals. Affirmed. notions of natural right, or equity, but upon the ground that the act cannot be attacked

George P. Haywood and Charles A. Burby oral evidence as to its unreasonableness, nett, both of Lafayette, for appellant. James or the cost of expense, or the hardship which c. Blacklidge, Conrad Wolf, and Earl B. may result from compliance, for the reason Barnes, all of Kokomo, for appellees. that the question is one of power in the Legislature as a police regulation, with which

MYERS, J. Appellant filed a complaint courts may not interfere, unless they can November 19, 1906, an amended second parsay that it is not within the power, or that agraph of which is set out in substance, in they judicially know that there could be no the case of Tippecanoe Loan & Trust Co. v. reason or reasons for the act.

Jester (No. 21,718) 101 N. E. 915, at last [7,8] It is next urged that the act is in- term, against the Tippecanoe Loan & Trust valid because its going into effect is made to Company and the appellees here, and the depend upon some other authority that is elevator boy, upon which a summons was provided in the Constitution, in violation of issued to the sheriff of Tippecanoe county, article 1, $ 25, and in violation of section 26, directed against all defendants, and a return art. 1, as authorizing the suspension of laws of service made as follows: "Served the without the authority of the General Assem within summons as commanded bly, and invalid under articles 3 and 4 of the on the within named defendants Henry W. Constitution, as delegating legislative pow

Barrett and John W. Barr, Jr., by reading ers to the Railroad Commission under sec

the same to and within the hearing of and tions 5 and 7 of the act.

by leaving a true copy thereof with Samuel Appellant is not prosecuted here for the C. Moore, secretary and treasurer of said violation of any order of the Railroad Com Tippecanoe Loan & Trust Company, which mission, the taking effect or suspension, en-said company is the agent of said last-named forcement, or validity of which might be in-defendants in charge of the business of said volved under sections 25 or 26 of article 1. defendants in the city of Lafayette, Tippe

, but for the violation of sections 1, 2, and 3 canoe county, state of Indiana; neither of of the act which are not involved with sec. said last-named defendants and no other tions 5 and 7, and are entirely independent; agent of said defendants being found withand if the latter are invalid, as to which in my bailiwick. This 21st day of Novemwe express no opinion, the valid and the in-ber, 1906. John W. Ray, Sheriff. M. Rosevalid sections are independent and readily

berry, Deputy." separable, and appellant cannot complain of

Appellees Barrett and Barr filed a plea in an act which, if invalid, is not in question abatement on the ground of want of jurisand does not affect it. Hammer v. State, 173 diction over their persons, alleging the filing Ind. 199, 204, 89 N. E. 850, 24 L. R. A. (N. of the complaint November 19, 1906; that S.) 795, 140 Am. St. Rep. 248, 21 Ann. Cas. they were then and at all times have been 1034.

residents of Kentucky; that no attempt was The judgment is affirmed.

made to serve the summons on any other person or persons than Moore, secretary, and

no other summons or process was issued in (181 Ind. 374)

the cause; that the Tippecanoe Loan & Trust JESTER V. BARRETT et al. 1 No. 21.841.) Company was acting for and on their behalf, (Supreme Court of Indiana. June 4, 1913.)

and "for the sole purpose of renting and CORPORATIONS ($ 507*)--ACTION-SERVICE ON collecting the rents and managing a certain SECRETARY.

parcel of real estate upon which was a flat Under Burns' Ann. St. 1908, § 319, pro- building, with power to employ servants viding that process against a corporation may about the flat building, including the elebe served on the president, presiding officer, chairman of the board of trustees, or other chief vator boy in the building, but the trust com. officer, or, if its chief officer is not found in / pany was not the agent of defendants for *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

! Rehearing denied,

any other purpose; that Moore was not their court of Tippecanoe county, state of Indiagent for any other business or purpose; ana, in this cause, in any other manner than

, that the trust company was not authorized by the said summons so pretended to be to accept or receive service of summons or served, as aforesaid, upon the said Samuel any other legal process, and especially not C. Moore, secretary of the said Tippecanoe authorized to receive or accept service or Loan & Trust Company: Wherefore,” etc. act for them in this cause; that they did Appellant replied, admitting that this cause not have an office in Tippecanoe county for was brought on November 19, 1906; that said the transfer (transaction?) of business, and defendants are each nonresidents of the state did not have or maintain any agency what. of Indiana and residents of the state of ever in Tippecanoe county for the transfer Kentucky, as alleged in said plea; that the (transaction?) of business, and no one was defendants are now and were at the time of authorized to do business for them, except the filing of the complaint in this cause, the particular business above set out; that and on the 28th day of December, 1904, and the defendants have not, nor has either of for more than two years prior thereto, the them at any time had, nor do they now have, owners of the ground and the building therean office or agency in said county and state on situated, known as Columbia Flats, lofor the transaction of business, and no one cated on the northwest corner of Columbia is authorized to transact any business for and Seventh streets, in the city of Lafayette, the said defendants, or either of them, other Tippecanoe county, Ind. ; that said building than as above set out; that the said Tip-on said 28th day of December, 1904, and for pecanoe Loan & Trust Company has never more than two years prior thereto was and at any time been the agent or clerk employed ever since has been used and managed as in any office or agency of these defendants, an apartment house by said defendants Baror either of them, in said Tippecanoe coun- rett and Barr, and is and was at all of said ty, state of Indiana, or in any other county times used and occupied by many persons in said state or elsewhere, and has not at as families and otherwise as tenants of the any time been authorized to transact busi- said defendants Barrett and Barr; that the ness for these defendants, or either of them, conduct, management, and operation of said except as above set out; that the said Sam- apartment house by said defendants Barrett uel C. Moore has never at any time, and is and Barr is the only business conducted by not now, the agent or clerk employed in said defendants Barrett and Barr in said any office or agency of these defendants, or Tippecanoe county; that the Tippecanoe either of them, in said Tippecanoe county, Loan & Trust Company is a corporation orstate of Indiana, or in any other county in ganized under and by virtue of the laws of said state or elsewhere, and has never been the state of Indiana, with its principal office authorized to do any business whatever for and place of business in the city of Lafaythese defendants, or either of them, except ette, Ind., and was on said 28th day of Deas above set out; that on the said 21st day cember, 1904, and for some time prior thereof November, 1906, the said Tippecanoe Loanto, ever since has been, and is now the agent & Trust Company was, as these defendants of the said defendants Barrett and Barr in are informed and believe, in charge of an the management, conduct, and operation of office controlled solely by the said trust com- said apartment house as such, and that as pany; that it did not maintain its office as such agent it had the authority and it was a clerk or employé of any other person or its duty to look after, and it did look after, corporation, but acted solely for itself, on the repairs of said apartment house, and behalf of persons having business to do with employ and discharge the employés employsaid corporation; that the trust company ed in and about the conduct and operation was not at the time said summons was so of said apartment house, and did employ as served, nor has it been at any time, in elevator boy George Mohr, who was in charge charge of or connected with, or in any man- of said elevator in said apartment house on ner, any office or place of business of these the said 28th day of December, 1904, as aldefendants, or either of them, in Tippecanoe leged in the complaint in this action, and county, state of Indiana, for the transaction had authority to rent and did rent the difof business, except to do the business in the ferent apartments of said apartment house manner and as above set out; that the said and collect the rent therefor, and had auSamuel C. Moore was not, at the time said thority, and it was its duty as such agent, summons was so served, nor has he been to do and did do and perform all things at any time since, in charge of or connected necessary for the conduct, management, and with, in any manner, any office or agency operation of said building as such apartof these defendants, or either of them, in ment house; that said cause of action in Tippecanoe county, state of Indiana, for the this cause, as alleged in the complaint heretransaction of business, and has had no au- in, grew out of the management and conduct thority to transact any business for these of said apartment house as conducted by defendants, except as above set out; that, as said agent; that said action is a suit to reabove alleged, there never has been any at-cover damages for personal injuries received tempt whatever to bring these defendants, by plaintiff, caused by falling into the shaft

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of the door to said elevator being left open Appellees' demurrers to the first and through the negligence and carelessness of second paragraphs of reply, for want of said defendants in the operation of said facts, was sustained as to each, and appelelevator in said building, and without any lant excepted and elected to stand on the fault of plaintiff ; that said Tippecanoe Loan ruling on these demurrers, and judgment was & Trust Company has an office in the city rendered against her in favor of appellees. of Lafayette, and its business is largely that The action of the court in sustaining the deof transacting business as agent for other murrers present the only question to be depersons; that as such agent, during all said termined. times, it transacted the business of the said Appellant's position is that facts are averdefendants Barrett and Barr at its said office red bringing appellees within the provisions in the city of Lafayette, Tippecanoe county, of section 311, Burns 1908. It is contended Ind., and the office or agency of the said de- by appellees: First, that section 311 is not fendants Barrett and Barr for the transac- a service section, but a venue section; and, tion of their business by said Tippecanoe second, that, if it can be considered a seryLoan & Trust Company in the management, ice section, service must in case of an agent control, and operation of said apartment corporation be made in accordance with sechouse, as aforesaid, was at the office of said tion 319, Burns 1908, by service on the “presTippecanoe Loan & Trust Company in said ident, presiding officer,” etc., and that service city of Lafayette, and the said office of said on Moore, secretary, is not service an the Tippecanoe Loan & Trust Company in said corporation in the absence of a showing that city of Lafayette, Tippecanoe county, Ind., the "chief officer” could not be found in the was, at all the times hereinbefore mentioned, county, and that neither the return or the the office of the said defendants Barrett and reply discloses such fact, hence the service Barr for the transaction of their business in is not good as to any one; third, this beTippecanoe county, Ind.; that said Moore ing an action in tort, there could be no was on the 28th day of December, 1904, for agency for the commission of a tort, but a long time prior thereto, and ever since agency as such must arise from contract; has been secretary and treasurer of the Tip- and, fourth, that if section 311 be so conpecanoe Loan & Trust Company; that when strued as to authorize a personal judgment said complaint was filed in said court, as against a nonresident, on service on an aforesaid, summons was issued thereon by agent under that section, it is in violation of the clerk of said court to the sheriff of Tip- section 2 of the fourth article and of the pecanoe county for service upon each and all fourteenth amendment to the federal Conof the defendants named in said cause; that stitution as denying the equal protection of neither of said defendants Barrett and Barr the laws and due process of law and abridgwas found by the sheriff of said county with ing the privileges and immunities of citizens in said Tippecanoe county; that neither of of the United States. said defendants Barrett and Barr was at In view of the conclusions of the court, it said time of the issuing of said summons, becomes unnecessary to consider the quesor for a long time prior thereto, or at any tion of the constitutionality of section 311, time since has been within said Tippecanoe or to construe it, for the reason that even county; that the sheriff of said Tippecanoe if constitutional as to nonresidents of the county, not finding said defendants, or ei- state, as to which we express no opinion, ther of them, within said Tippecanoe county, service was not made in the manner required served said summons for said defendants by section 319, Burns 1908. Mr. Moore, secand each of them upon the said Tippecanoe retary of the trust company, was not a propLoan & Trust Company, as the agent for er person upon whom service could be made the said defendants Barrett and Barr in without a showing that the "president, precharge of the said business of said defend siding officer, chairman of the board of ants in the city of Lafayette, Tippecanoe trustees,” in the order named in the statute, county, Ind., by reading said summons to could not be found in the county. If in case and within the hearing of and by leaving of suit against a corporation service must be a true copy thereof with the said Samuel made in the order named in the statute, C. Moore, secretary and treasurer of said there is quite as much, if not more, reason Tippecanoe Loan & Trust Company: Where that, if it is to be substituted service for anfore, etc.

other, the statute must be followed, and such Appellant filed a second paragraph of reply is the requirement as to the corporation it. to appellees' plea to the jurisdiction of the self. Southern, etc., Ry. Co. v. Indianapolis, court, alleging substantially the same facts etc., Ry. Co., 158 Ind. 360, 364, 81 N. E. 65, as in the first paragraph, except it is al. 13 L. R. A. (N. S.) 197; Toledo, etc., Ry. Co. leged that appellees were during all the time v. Owen, 43 Ind. 405. The service is shown partners in the conduct of the business of to be on Mr. Moore, secretary of the comoperating the apartment house by and pany, an officer of the second class, withthrough the trust company, and that it was out any showing that no higher officer could the only business conducted by them as be found in the county. partners in Tippecanoe county, Ind.: Where- Under the allegations of the answer, the fore, etc.

trust company was the agent of appellees


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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

COX, J. Appellant sued appellee for a of the apartment building. Neither was Mr. divorce, and she appeared and asked an alMoore, as secretary, agent for appellees, but lowance of $200 for attorney's fees that she an officer of a corporation, a mere incident might make her defense. After a hearing on of the business of which was to manage ap- this question the court ordered appellant to pellees' property. If such service, under the return and showing here made, would not pay to appellee the sum named within five

days. From this interlocutory order this be good as to the corporation, it certainly

appeal is brought. cannot be good service upon it as agent, in

The basis of the claim made in behalf of the absence of a showing that the other officers or persons on whom service is au- made is that it is made to appear that ap

appellant that the order was improperly thorized could not be found in the county. The judgment must be affirmed, and it is pellee had ample means and credit of her

own to enable her to support herself and so ordered

make her defense, and that therefore the al

lowance was an abuse of the discretion pos(179 Ind. 583)

sessed by trial courts in such cases. SNIDER V. SNIDER. (No. 21,947.)

In appellee's verified application for the

allowance it shows that the parties were (Supreme Court of Indiana. June 3, 1913.)

married in 1880 and were separated from 1. DIVORCE ($ 225*) ALIMONY PENDENTE bed and board for a limited time by decree LITE-ALLOWANCE.

Both at common law and under Burns' of the court rendered in 1909, at which time Ann. St. 1908, § 1080, providing that pending a | the court allowed her $1,000 and $20 per divorce the court will make such orders relative month; that appellee at the time the allowto the expenses of such suit as will insure the ance now appealed from was asked owned 50 wife an efficient preparation of her case and a fair trial, an allowance of suit money may be acres of land in Allen county worth about made to a wife, even though she owns some sep- $50 an acre, of which only 20 acres were arate property and by sacrificing it might obtain cleared and under cultivation; that she also sufficient funds to conduct the cause; the pur- had a note for $1,500 secured by mortgage pose of the statute and the allowance being to place the parties on an equality.

on real estate; that since the decree of sep[Ed. Note. For other cases, see Divorce, aration she had built a house and barn on Cent. Dig. $$ 647-650; Dec. Dig. § 225.* ] this land at an expense of $1,800, and had 2. DIVORCE (8$ 211, 286*)-TEMPORARY ALI- also been to expense in fencing and buying MONY-ALLOWANCE.

stock for her farm, and had so used all the The determination of whether there is a money allowed her by that decree and $1,000 necessity for an allowance for temporary alimony, as well as the amount and the ability which she had borrowed and pledged the of the husband to pay, rests in the sound dis- mortgage note for $1,500 as security; that cretion of the trial court, which will be inter- she owed various additional sums amounting fered with on appeal only when an abuse is in the aggregate to something more than shown.

[Ed. Note.--For other cases, see Divorce, $150; that she had no other money or means Cent. Dig. $8 613, 769, 770; Dec. Dig. 88 211, or sources of income than that stated, and 286.*]

no means of support other than the cleared 3. DIVORCE ( 215*)—ALIMONY-SUIT MONEY. 20 acres, which was insufficient for her sup

In determining the amount of an allowance port, and that she cannot borrow more monto a wife for temporary alimony, the ability of ey on the $1,500 note. It is further shown the husband to pay and the wife's necessities that appellant at the time owned 150 acres must be considered.

of unincumbered, well-improved real estate in [Ed. Note. For other cases, see Divorce,

. Cent. Dig. $$ 632–634; Dec. Dig. § 215.*]

Allen county worth $100 an acre, with ma

, 4. Divorce ($ 286*)—ALIMONY-ABUSE OF Dis-chinery, stock, and other personal property


worth between $3,000 and $4,000; and that The mere showing of an allowance of tem- in addition she was informed and believed porary alimony or suit money to a wife having he was worth, in money in bank and loaned some property or credit will not establish an abuse of discretion on the part of the trial judge. on real estate, $30,000. It was further shown

[Ed. Note.-For other cases, see Divorce, that she was then 64 years old and had borne Cent. Dig. $$ 769, 770; Dec. Dig. § 286.*] appellant four children, all of whom had be

come 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.

do so no longer on account of growing inSuit for

for divorce by Christian Snider firmity, and that appellant had ceased makagainst Lavina Snider. From an order al- ing the payments of $20 a month under the lowing defendant suit money, plaintiff ap- former decree. peals. Affirmed.

In a verified statement in opposition to the

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