Anderson v. Weber

39 Ind. App. 443 | Ind. Ct. App. | 1907

Rabb, J.

A blanket remonstrance was filed with the auditor of Olay county three days before the regular July term, 1905, of the board of commissioners of said county against the granting of a license to sell intoxicating liquors in less quantity than a quart, under the provisions of the Moore law of 1905 (Acts 1905, p. 7, §7283i Burns 1905), in the township of Washington, in said county, said remonstrance purporting to be signed by a majority of the legal voters of said township. The board of commissioners assumed that the filing of this remonstrance brought before it and under its jurisdiction, for decision, the question as to the sufficiency of such remonstrance, and proceeded to take cognizance of the remonstrance, heard evidence as to its sufficiency and its form, and adjudged that it was signed by a majority of the legal voters of the township and filed with the auditor of the county three days before the meeting of the board. The appellee in this case, George F. Weber, whom the record recites was before the board as an applicant for a license to sell intoxicating liquors, appeared in said proceeding and resisted the action of the board. He afterwards filed an affidavit to the effect that he was a legal voter in said township, and, after reciting the action of the board of commissioners upon the remonstrance, stated that he had on file an application to sell at retail intoxicating liquors in said township, but owing to the finding of such board such application was defeated; that the board failed to act on the same, and that he therefore had an interest in the matter determined by the board, and that he was aggrieved by its decision, and prayed an appeal to the circuit court. He filed his appeal bond which was approved by the auditor, and a record of the proceeding certified to the circuit court and entered upon said court as a proceeding pending therein in the name of the appellee as plaintiff, and of the remonstrators, the appellants herein, as defendants. The remonstrators appeared to said proceeding and moved to dismiss the appeal. Among reasons assigned was that the court had no jurisdiction of the case. This motion was overruled, and presents one of the questions raised by the record in this cause by a proper assignment of errors in this court, and the only question which we deem it necessary to consider*.

1. The provisions of the act of 1905, supra, amendatory of section nine of the Nicholson law (Acts 1895, p. 248, §7283i Burns 1901) axxthorized the filing of a blanket remonstrance against the granting, by the board of commissioners, of a license to sell intoxicating liquors at retail in any township or city ward. When this remonstrance is signed by a majority of the voters of the township or city ward, and is filed with the auditor of the coxxnty three days before the regular session of said board of commissioners, the board is thereby deprived of all power and authority to grant a license to any applicant to sell at retail intoxicating liqxxors within the particular township or city ward.

2. Under the provisions of the law the filing of snch remonstrance does not .invoke the exercise of any judicial power by the board of commissioners. It is not called upon judicially' to determine whether the remonstrance is in due form of law, whether it is signed by a majority of the voters of the township or city ward, or whether it has been filed with the auditor within the proper time, or to take any cognizance whatever of the remonstrance.

3. The filing of the remonstrance simply creates a condition that deprives the board of commissioners of' authority to act in a given case when its action shall be invoked to grant licenses to sell liquor at retail. It has no power to adjudicate any question with reference to the remonstrance until some one invokes its power judicially to determine whether a license to retail intoxicating liquors shall be granted. When that is done, the board of commissioners must determine judicially whether it has the power to proceed with the hearing of the application for a license.

4. The only judgment the board of commissioners can properly render in such case is whether a license shall be granted or refused, and not whether a remonstrance against the granting of a license to sell intoxicating liquor has been filed in proper form, signed by the requisite number of voters, and filed with the auditor within the proper time. The license applied for shall either be granted or refused, and, in determining what its judgment shall be in granting or refusing the license, it necessarily passes upon the question as to whether the remonstrance has been properly filed and signed by a majority of the legal voters of the township. If it finds it has been, it refuses the license and adjudges that the party is not entitled to a license. The reasons why he is not entitled to a license are not proper to be set forth in the judgment. If it should determine that the remonstrance is insufficient, for any reason, and that the party is entitled under the law to a license, its judgment is that lie should be granted a license. Nor is it necessary or proper that in this judgment anything should appear about the remonstrance.

5. In this case the appellee appealed from an order of the board of commissioners that simply passed upon the question as to the sufficiency of the remonstrance, and nothing else. There was no judgment of the commissioners refusing him a license. There is a refer-, ence to the fact that, on account of the action of the board in that matter, they had, on his application for a license, refused to act. From that action the appeal is not taken, but from this order of the board. The order of the board of commissioners in the case was a mere nullity. It was not a judgment from which an appeal might be taken. This is decided by the Supreme Court in the case of Cain v. Allen (1907), 168 Ind. 8, the court in that case saying: “The action of the board in assuming jurisdiction over the remonstrance herein, as shown, and in making an order therein, was wholly unwarranted by law. Consequently, as it had no jurisdiction over the matter, the proceedings had upon the remonstrance in question and order made thereon were a mere nullity. * * * The law is well settled in this State that boards of commissioners are invested only with statutory power, and they have no power to act except as it is expressly or impliedly conferred upon them by statute.” Citing, Gavin v. Board, etc. (1885), 104 Ind. 201; Hoop v. Affleck (1904), 162 Ind. 564. There being no judgment of the board of commissioners to appeal from, the motion to dismiss the appeal should have been sustained.

Cause reversed, with instructions to'the court below to sustain appellants’ motion to dismiss the appeal.