The Indianapolis times. [volume] (Indianapolis [Ind.]) 1922-1965, 1933-01-04
BY JAMES A. CARVIN


enjoy the necessary comforts of
life shall be recognized by whole
some laws exempting a reasonable
amount Of property from seizure
or sale for the payment of any
debt or liability hereafter con-
tracted q" Art. I, Sec. %, Con-
stitution Of Indiana.
ANY amount of property not
exceeding in value $500, owned by
any resident householder shall not
be liable for sale on execution or
any other final process of a court,
for any debt growing out Of or
founded upon a contract, eX-
pressed or implied, after the TAX
ing effect of this act Sec. 769
Burns Rev. St, 1926.
With the fourteenth amendment
to the Constitution Of the United
States and the above two quotations
from Indiana law as principal cita-
tons, arguments tending to show
the unconstitutionality Of the Indi-
ana garnishee law have been up
held by Marion county courts.
Furthermore, these decisions have
provided a precedent which has con-
WINGED contemporary judges and
members of the bar that the law
not only can not be enforced legally,
but that it works tremendous hard
: ships.
Held Unconstitutional
On Feb. q, 1892, Judge Russell j.
Ryan, in superior court five, sus-
tanned a motion TO quash an exc
cution for judgment in the first con-
test of the statutes constitution
atty.
Only a few weeks ago, on Dec. 7,
1892, Judge Clarence E. Weir, in
superior court four, overruled a de-
murrer to a complaint for a re-
straining order to enjoin execution
of a punishment.
Although they yet have not been
called upon to consider the question,
the three other Marion county SUI
perior court judges, prevented from
expressing opinions before actually
handing down decisions, have indi-
Gated their concurrence in the find
ing of the other courts.
Judge William A. Pickens, in SUI
perior court three, declared, Al
though I have not ruled on the law,
I never have enforced it
McMaster Fights Cases
William S. McMaster, local attor-
ney and former municipal court
judge, has played an active part in
the fight on the law. He prepared
and submitted the case on which
Judge Ryan ruled and also acted as
counsel in the more recent case be-
fore Judge Weir.
There now is pending in circuit
court a case in which McMaster also
will act as counsel and will submit
argument based on the premise that
the garnishee law lis in contraven-
ton of the provisions of the four
teenth amendment"
Contention of McMaster upheld
by the courts, is that the garnishee
law docs not provide for notice
or hearing of the defendant before
the order is issued and, therefore,
does not follow due process Of law"
James A. Collins, Criminal court
judge for many years and now en-
gagged in law practice, also has
struck hard at the garnishee stat
ute. In a brief submitted in SUI
perior court five, Collins set out five
points contending the laws uncon-
Stitutionality. The case was dis
missed prior to hearing.
No Provision for Hearing
Quoting from the brief, Collins
pointed out that the mandatory pro-
vision of the law denies the judg-
ment debtor to claim his statutory
exemption of $500" singles out a
certain class of judgment debtor"
makes no provision for a hearing
that the Judgment debtor might be
placed in position to take adj
vantage of the exception provided
by law" and makes no provision for
notice to him TO be present in
court"
Collins final Indictment of the
measure states that the law pro
vides for a hearing and finding sole
ly for the judgment creditor, Great
ing one of the greatest legal alb
surdities ever fastened upon courts
of this commonwealth"
Political "log-rolling" during the
period in which the law was passed
also is subject to scathing criti-
cism from Collins, and he charged
openly that unusual pressure was
brought upon the legislature to pass
the measure.
Cites Klan-Dry Rule
The act was passed at a time
when We were as near suffering
from mob rule as was witnessed in
the legislatures of the south during
the days of reconstruction. Two
powerful minority groups. parading
under the banner Of a great political
party. were so intrenched that each
could be of help to the other.
80 intoxicated with power were
these groups that they enacted one
piece OF legislation that was an
afTront to the great medical pro-
fession and an other to the I'M
fortunate debtor from whom his
creditor could demand a pound OF
flesh"
The legislation to which Collins
refers is the law forbidding pre-
scription of medicinal whisky and
the garniShee statute. The Khan
and the Anti-Saloon League were
active in state politics at the time.
Firms Join in Fight
Although the garniShee law is
mandatory in its application and
offers no method of relief. promi-
nent business firms of Indianapolis
have joined in the fight against it,
and have succeeded in SOfteninp