35 Ind. App. 262 | Ind. Ct. App. | 1904
The appellee, William T. Inman, on March 2, 1903, filed with the board of commissioners of the county of Putnam his application for license to sell intoxicating liquors at retail in the third ward of the city of Greencastle, Indiana, under the act of March 11, 1895 (Acts 1895, p. 248, §§l283a-l283k Burns 1901). Notice was given as required by law, and the premises where sales were to be made were described. At the proper time J. B. Abbott and 198 other voters of the third ward of said city filed a remonstrance against granting said license. Said applicant in due time filed with the auditor of said county a paper containing the names of 31 persons purporting to be withdrawals from said remonstrance. The case came on for hearing before said board on application, remonstrance and withdrawals. After the evidence Ivas submitted, the board found that said remonstrance was not signed by a majority of the legal voters of said third ward, as the law requires, and entered an order granting said applicant a license, as prayed for in his petition. Erom this order and finding the remonstrants appealed to the circuit court. When the case was called in the circuit court, said remonstrants, by their attorneys, filed a motion for a struck jury. To this motion the objection of the attorneys of the applicant was sustained, to which ruling the remonstrants excepted. Upon application of remonstrants a change was granted from the regular judge, and the Hon. George A. Knight was appointed and qualified to try said cause. Bpon request of the remonstrants the court made a special finding of facts, stated
The special findings are, in substance, as follows: The city of Greencastle was prior to May 13, 1902, a municipal corporation, and divided into three wards. The third ward of said city included all the territory lying south of Hanna street. Said ward was at said time divided into two voting precincts — the .east and west. An election for mayor was held in said city on May 6, 1902. At said election the aggregate vote cast in said ward for mayor was 320 — 150 being cast in the east precinct and 170 in the west precinct —and the total number of persons who voted at said election in said west precinct was 176. On the 13th day of May, 1902, the common council of said city redistricted said ware!, for ward purposes, into four wards, and- took off of the original third ward, as it existed at the time of said election, that part of the west precinct of said third ward which lies south of Hanna street, north of Olive street and west of College avenue, and put it into said new fourth ward, and said original third ward was not otherwise changed thereby, but included all the territory lying south of Hanna street, except said four blocks. At the March session, 1903, of the board of commissioners of said county, appellee applied for license to sell intoxicating liquors in the third ward of said city, having previously given notice of his intention to file such application. On February 27, three days before the meeting of said board at its March session, a remonstrance in writing, signed by the plaintiff John B. Ab,bott and 198 other voters of the third ward of said city, was filed with the auditor of said county, remonstrating against granting a license to said applicant for the sale of intoxicating liquors. Of the 199 persons whose names were attached to said remonstrance 22 had revoked said power by withdrawing their names therefrom before the filing of said remonstrance, by written withdrawals filed with the auditor the day before the remonstrancé was filed. Of the
' The conclusions of law are as follows: (1) That the remonstrance ought to be, and hereby is, dismissed; (2) that the applicant Inman ought to recover his costs herein against the remonstrants. To the conclusions of law, and to each of them, the appellants excepted.
The errors relied upon for a reversal are the action of the court (1) in refusing a trial by jury; (2) in the conclusions of law stated, and each of them.
Under the view'taken by the learned trial court, a remonstrance might be rendered wholly unavailing if no election had previously been held in a ward -in which license was sought. In the case before us the court found specially that after the last preceding election a part of the third ward in question, as it existed at that election, was taken to form a part of the fourth ward, so that the third ward as it existed at' the time of the election was not identical with the third ward as it existed when appellee’s application was acted upon. The court also found the aggregate vote as it originally existed, and the exact number of voters in the part de
The statute fixes a convenient rule for determining the number of voters at a given time. This rule, however, ought not to exclude from consideration pertinent facts transpiring since said election. Appellee can not reasonably complain of a construction of the statute in harmony with its purpose, and which gives to the legal resident voters of a given territory a voice in a matter affecting their interest as citizens and as individuals.
The judgment is reversed, and the trial court directed to restate the conclusions of law, and render judgment in accordance with this opinion.