173 Ind. 173 | Ind. | 1909
In March, 1908, appellant was, by the board of commissioners, and later by the circuit court on appeal, refused a license to sell intoxicating liquors at retail in the first ward of the city of Garrett.
It appears from the special finding of facts that at 11 o’clock p. m., on Thursday, January 30, 1908, an instrument in writing, signed by forty-one persons, was filed with the county auditor, giving notice to the board of commissioners that each of said signers desired to withdraw his name from any and all remonstrances that might be thereafter filed against the granting of a license to sell liquors in said first ward of Garrett. The name of each of said forty-one persons had been signed to the withdrawal paper by duly appointed attorneys, whose power was full and explicit to execute a withdrawal from any remonstrance the principal had signed, and to be effective on the day of actual signing. At the time said withdrawal paper was filed, and at the time of the execution to the attorneys of the power to sign the withdrawals, thirty-four of the persons whose names were at
After appellant had given notice in February that he would apply for a license at the March term, the remonstrance of January 31 was brought forward and renewed in identical language and names — the latter being subscribed by attorneys with renewed powers — except that it had attached to it the names of thirteen additional persons, making a total of 156, and the same was filed with the auditor on Friday, February 28, 1908.
To the second remonstrance appellant filed a sworn plea that seventeen of the signers were not legal voters of the ward, and also his plea questioning the right of any one to sign the remonstrance who had signed and filed with the auditor a withdrawal on January 30. On the day before the second remonstrance was filed with the auditor, a paper was filed in said office which purported to be a notice of withdrawal, from any and all remonstrances, by a large number of persons whose names appeared on the remonstrance of January 31, and also appeared on the pretended withdrawal paper filed January 30.
It thus appears that, notwithstanding the hysterical action of divers persons, the trial resulted in showing that 129 qualified persons signed the remonstrance of January 31, two more than a majority of the legal voters of the ward; and conceding, without considering, all that appellant claims in his answer, to wit, that seventeen of the signers of the remonstrance of February 28 were not legal voters of the ward, there remain 139 names on the remonstrance; and conceding further that four of the 139 had executed valid withdrawals and one other person’s name was duplicated, we still have left to the remonstrance a clear majority.
The sufficient remonstrance of January 31 not only determined for two years the power of the commissioners to grant a license within the district, but it also fixed for a like period the status of all signers as that of remonstrators, and the effort made by some of those who signed the January remonstrance to become withdrawers by filing such declaration with the auditor on February 27 was wholly nugatory. Cain v. Allen (1907), 168 Ind. 8; Regadanz v. Haines (1907), 168 Ind. 140.
Further, those who filed with the auditor, on the evening of January 30, withdrawals from all remonstrances, when they had in fact, neither in person nor by attorney, signed any remonstrance, did a foolish and frivolous thing. It is inconceivable how they could withdraw from a paper that they had not signed.
Those who had signed a paper intended as a remonstrance could withdraw therefrom on Thursday, January 30, and on Friday, January 31, could reconsider, and by person or attorney reexeeute the remonstrance at any time before the latter was filed in the auditor’s office as such. State v. Gerhardt (1896), 145 Ind. 439, 473, 33 L. R. A. 313; Lee v. Shull (1909), 172 Ind. 309.
Those Avho had in person or by attorney signed a document intended to be, but not, filed as a remonstrance, could withdraw therefrom iu person or by attorney on Friday, February 28, at any time before the document reached the files of the auditor’s office. Ludwig v. Cory (1902), 158 Ind. 582; White v. Prifogle (1896), 146 Ind. 64.
The distinction is this: As to a paper that has been lodged
But as to a paper that is designed to be filed and presented as a remonstrance, but is still in the possession and control of agents, and has never reached the auditor’s office as a remonstrance, persons may, during the Friday next before a regular session of the board of commissioners, before it is filed, sign it; or, having previously signed, may withdraw their names therefrom; or may revoke a power of attorney to do either, at any time before the power is exercised. The filing of the instrument, however, on Friday, precludes any further changes by either withdrawals or additional signatures. Flynn v. Taylor (1896), 145 Ind. 533; State v. Gerhardt, supra; Lee v. Shull, supra; Miller v. Resler (1909), 172 Ind. 320.
There is nothing mysterious or novel in the matter of executing, and withdrawing names from, a remonstrance against the liquor traffic. All questions pertaining thereto are governed by the ordinary and established pertinent rules which pertain to the doctrine of principal and agent. McClanahan v. Breeding (1909), 172 Ind. 457; White v. Furgeson (1902), 29 Ind. App. 144.
Appellant argues that the January remonstrance was insufficient, because the court reached the number of 129 remonstrators by means of an erroneous finding, the contention being that finding eight, to the effect that of the fourteen persons whose names appeared upon the remonstrance, and were challenged by appellant’s
The ultimate substantive fact to be determined was whether the persons challenged were legal voters of the ward. The facts of date of birth, when they severally established domiciles in the State, county, township and ward, were only important as each tended to prove, or was evidence of, the substantive or ultimate fact to be determined. Each standing alone fell far short of the mark, but each supplied some evidence for or against the main fact, and, if found consistent with the substantive fact, the court could properly infer from the body of such subsidiary and evidentiary facts the existence of the main or ultimate fact. Such is a conclusion of fact and not of law. See illustrations in Taylor v. Canaday, supra.
Appellant relies upon Quinn v. State (1871), 35 Ind. 485,
To constitute a voter, various attributes must coexist, the absence of any one of which will disqualify him; and in a prosecution for illegal voting there is much reason for the holding that the defendant is entitled to be informed of the particular qualification he is charged with lacking, and thus enable him to prepare his defense.
We think the special finding complained of was proper, and that the conclusions of law thereon were sufficient to sustain the judgment.
Upon appellant’s presentation to the commissioners of his application for a license, in March, 1908, the very introduction of the subject, by offering proof of notice, called into the case, by operation of law, the preceding January remonstrance then on file in the auditor’s office. It then became the first duty of the commissioners to determine the sufficiency of said remonstrance, and if the board found that the same was filed in the auditor’s office three days before a regular meeting of the board, and that at the time of filing it was executed by a majority of the legal voters of the ward, that was the end of the inquiry. Such a result would be equivalent to finding that the board had no power and no jurisdiction to grant a license to any one to sell liquor in the ward for two years, without reference to formality or fitness of the applicant, and the board
One Metcalf was a remonstrator, but not a witness at the trial. His qualification as a voter was called in question by appellant’s verified plea, and, during the trial, appellant, while examining his witness Behler, requested the witness to state fully what Metcalf had said to him, in a previous conversation, about his place of residence, and what was his intention as to residence when he left Garrett and when he returned to Garrett. The exclusion of testimony solicited is made a ground of complaint. Assuming that the answer of the witness would have disclosed that Metcalf was not a voter, it would not have affected the result of the trial, for, excluding Metcalf, there would have remained on the remonstrance a majority of the legal voters of the ward. If erroneous, therefore, the ruling was harmless, and we pass it without consideration.
We have found no available error. Judgment affirmed.