178 Ind. 142 | Ind. | 1912
The Board of Commissioners of the County of Marion, Indiana, at its July term, 1911, made and specified on its own motion certain charges against appellee, by a proceeding entitled “In the matter of charges against James Scanlan, Licensee,” directed “To James M. Scanlan, 38 and Kissel Sts City.”
The charges are as follows: “On complaint lodged with the Board of Commissioners of Marion County, Indiana, the following separate charges are hereby preferred against you, pursuant to Section 19 of a law enacted by the General Assembly of Indiana at its Regular Session of 1911, and entitled ‘An act concerning intoxicating liquors’, approved March 4th, 1911: 1. That on the 12th day of July, 1911, you were tried, plead guilty and fined in the Criminal Court of Marion County, Indiana, of having sold intoxicating liquors at an hour when the sale of such liquors is prohibited by law, all as provided by section 8326 Revised Statutes of
The demurrer was sustained. Appellant excepted, and refusing to plead further, electing to abide by such ruling, the court rendered final judgment thereon that the board of
The error assigned is that the court below erred in sustaining this demurrer.
The propositions of appellant are (a) that under the act of 1911, supra, boards of commissioners have the power of their own motion to prefer and try charges against a licensed saloon-keeper as to alleged violations of the law, and on conviction to suspend or revoke the license, and (b) that the charges here made are sufficient.
Appellee’s position is substantially that taken by the different specifications of his demurrer.
The point is vigorously presented by appellee’s learned counsel, that the title of the Proctor law “is so general that it states neither the subject of the law, nor even the object sought to be accomplished,” and “that the means by which the object of the act is to be accomplished are wholly lacking, and that the title gives no information of the statutory means to be used to accomplish the object of the legislature.”
The title of the act is “An Act concerning intoxicating liquor. ’ ’
Under what more leading subject would one look, to expect to find enactments to carry liquor legislation into effect, than under a title “An act concerning intoxicating liquor,” as broad enough to cover every branch of licensing and regulating the liquor traffic.
We have no difficulty in adjudging the title of the act as sufficient, and we are advised by the briefs that this view was entertained by the learned trial judge.
Representative Wise, moved “to amend engrossed senate bill No. 244, by adding the following to §19 of the printed bill.” Then follows the third proviso of §19, which amendment was adopted. House Journal (1911) pp. 1482, 1483.
Section 20 provides for the institution of complaints by voters before boards of commissioners to revoke or suspend licenses.
It is apparent that the proviso was intended to be added to §20 instead of to §19, for both sections were complete without it, and authorized the institution of proceedings on the initiation of the board, or that of a voter, and the proviso confers concurrent jurisdiction on the board and on “any circuit or superior court” when an application is made for revocation or renewal or transfer of a license.
But there is another strong reason for our conclusion that such transposition should be made, as indicative of the legislative intent.
The general subject of issuing license to sell intoxicating liquors is committed to boards of commissioners, as to places, conditions and the fitness of applicants, and we have recently held, under a cognate act (Atkinson v. Disher [1912], 177 Ind. 665, 98 N. E. 807), that the matter of selection among applicants, where there is a surplus, is committed solely to that body, and said §19 evinces a legislative intent to confer further powers for summary action upon boards of commissioners, as excise officers, in furtherance of their powers of licensing and regulating, and plenary powers are given them to act summarily.
Prior to this time, power of revocation of license was vested in circuit, superior, criminal, justice and police courts, mayors of cities and presidents of boards of trustees of towns (§8327 Burns 1908, Acts 1895 p. 248, §§8893, 8682 cl. 8 Burns 1908, Acts 1905 p. 219). Whether they still have the power we need not determine.
The power is now also vested in boards of commissioners, and in circuit and superior courts, at least, as further evidence of the legislative intent to extend the power of regulation of the liquor traffic, and the history of the times and of the legislation of this State evinces an intention to extend, rather than to relax or restrict surveillance.
It will be noted that by §20, supra, the provision for complaint by a voter before the board of commissioners is for “revocation o.r suspension of such license”, while the terms
A rule of construction of a proviso should not be adopted which will defeat a prior enactment, or the purview of an act, by reason of repugnancy or nullification, or will itself be void by reason of such repugnancy, but one which will give all pai’ts of the act effect if possible, by assigning to a proviso its proper place, as excepting something from the act, or qualifying some feature or features of it, and the construction claimed by appellee for said §19 is claimed by biin to destroy the prior portion of the section, which authorizes action on motion of boards of commissioners, while as applied to §20 it is in full accord with the latter, both in language and purpose, and consistent with the express intent to separate, and to provide for two distinct proceedings; except that proceedings, both for revocation and suspension of license, may be had before boards of commissioners on application of a voter, but only proceedings for revocation of a license or a renewal or transferred license may be instituted in circuit or superior courts.
But even if we take §19 as it reads, there is no difficulty in its application.
Suppose instead of §§19, 20 being divided as they are, they were included in one section? Being adopted at one. time as part of one general system, we should have no difficulty if the third proviso of §19 remains where it is, in connection with the following matter, in §20, in understanding that two classes of proceedings for revocation or suspension are provided for. The last clause and the last clause of §20 of the proviso, and the requirement under the proviso, that application may be made “by the applicant complying with the requirements as is provided for the same proceedings before the board of commissioners,” further enforce the proposition, and is a sufficient indication that the “applicant”
An instructive case is Newman v. Lake (1905), 70 Kan. 848, 79 Pac. 675. See, also, Parrent v. Little (1904), 72 N. H. 566, 58 Atl. 510; In re Hallran (1900), 63 N. Y. Supp. 1024, 30 Misc. 515.
The judgment is reversed, with instructions to the court below to overrule the demurrer to the complaint or charges, and for further proceedings not inconsistent with this opinion.
Note.—Reported in 98 N. E. 801. See, also, under (1) 36 Cyc. 1017, 1028; 64 Am. St. 74; 20 Ann. Cas. 323; (2) 36 Cyc. 1022; (4) 36 Cyc. 1031; (5) 36 Cyc. 1163; (6) 23 Cyc. 158, 159.