168 Ind. 8 | Ind. | 1906
Lead Opinion
This cause and the other cases hereinafter mentioned were consolidated by order of court, and were all heard and considered together upon the argument of the respective counsel appearing for the several parties. Consequently the decision in this appeal will virtually rule and control in the determination of the other appeals. The causes consolidated are the following. No. 20,782; Regadanz v. Haines; No. 20,812, Jones v. Alexander; No. 20,820, Lanham v. Woods; No. 20,891, Kunhle v. Abell. In this case and in each of the other cases the question in regard to the constitutional validity and the construction of section nine of an act of the legislature approved March
The facts in this appeal are as follows: Three days before the beginning of the regular June session, 1905, of the Board of Commissioners of the County of Owen, State of Indiana, what may be termed a general or “blanket” remonstrance against the granting of a license to retail intoxicating liquors in Washington township, Owen county, was filed with the auditor of the county by appellees herein. The remonstrance was addressed to the Board of Commissioners of the County of Owen, and, omitting the formal parts thereof and the names of the remonstrators, reads as follows:
“We, the undersigned, legal voters in the township of Washington, in the county and State aforesaid, do hereby respectfully represent that we are opposed to the traffic in intoxicating liquors and we hereby object to the granting of a license to any person for the sale of intoxicating liquors in said township.”
This remonstrance was filed under and in pursuance of said section nine as the same is amended. 'The names of appellees appear to have been subscribed thereto by Albert B. Milligan, under and through a power of attorney, duly executed to him and William M. Christ by each of the appellees herein. The appointment of Milligan and Christ and the authority conferred upon them to act for appellees in signing their names to a general remonstrance and filing the same was not conferred by a single instrument or document signed jointly by all of appellees, but was through and under several separate instruments, executed separately by each of the appellees. Each of these instruments so executed, omitting the formal parts, is as follows:
“I, the undersigned, a resident and qualified voter in Washington township, Owen county, Indiana, do*12 hereby authorize, empower, and request William M. Christ and Albert B. Milligan, or either of them, to sign my name to any and all remonstrances against the granting of license to any and all applicants for the sale of intoxicating liquors in said township, and to sign my name to any and all remonstrance or remonstrances against the granting of a license to any person for the sale of intoxicating liquors in said township, and also properly to file said remonstrance or remonstrances with the auditor of said county and to present the same to the board of commissioners, and do hereby deliver this appointment to them for the purpose herein stated.”
Ro person appears to have given notice of his intention to apply at said June session, 1905, of the board of commissioners for a license to retail intoxicating liquors in said Washington township, and no ap2)lication was filed at said session whereby such license was sought to be secured. At said June session of the board of commissioners appellees herein a23peared by their attorneys and presented to the board the remonstrance which had been filed with the county auditor, as heretofore stated. It was taken up and considered, and thereupon the board made and entered the following finding and order:
“In the matter of a remon- ' strance against the selling of . Commissioners Court, intoxicating liquors, in Wash- June term, 190.5. ington township. * * * “And now the board, being fully advised in the premises, and the evidence being heard, finds that the above remonstrance was filed with the auditor of Owen county three days before the regular June session, 1905, being the present session of the board of commissioners of this county, to wit, on Friday, June 2, 1905. And it further appearing by the evidence, to the satisfaction of the court, that said remonstrance is signed by a majority of the legal voters of said Washington township, in said Owen county, on said date, it is therefore ordered and adjudged that it*13 shall be unlawful for, and this board of commissioners will not grant a license to, any person to sell spirituous, vinous, malt, or other intoxicating liquors under the laws of the State of Indiana, with the privilege of allowing the same to be drunk on the premises where sold, within the limits of said Washington township, during a period of two years from the date of filing such remonstrance, to wit, from June 2, 1905.”
It appears that the appellant, Cain, was not in any manner a party to the proceedings at said June session, and no notice was given to him that the board was going to consider and take action upon the remonstrance at that session. At the September session, 1905, of the board of commissioners, appellant, having given the notice required by §7278 Burns 1901 (Acts 1875 [s. s.], p. 55, §3), an act of the legislature to regulate and license the sale of intoxicating liquors, to which we will refer hereafter as “the act of 1875” —applied to the board, under the provision of said statute, for a license to retail intoxicating liquors in said Washington township. On motion of the remonstrators the board dismissed his application and denied him the right to a hearing thereon and also the right to be heard as to whether the remonstrance in question at the time of the filing thereof had been signed by a majority of the legal voters of the township. From this decision he appealed to the Owen Circuit Court, wherein appellees renewed their motion to dismiss his application upon substantially the following grounds, namely: That the record of the board of commissioners discloses that three days before the June session, 1905, of the board, a majority of all of the legal voters of Washington township, in said county, had filed a remonstrance in the office of the county auditor, remonstrating against the granting of a liquor license to any person whatever, which remonstrance had ever since remained on file in the auditor’s office; that the board at that session had duly inquired into the matters and things alleged in the remonstrance, and had found that
Counsel for appellees seek to sustain the decision of the court in dismissing appellant’s application and rendering judgment against him on the following grounds: (1) That a remonstrance under section nine as amended is an ex parte proceeding; that it raises no issue' between the remonstrators and ail applicant for license; that it concerns voters only; (2) . that the hoard of commissioners at the June session following the filing of the remonstrance had the right and power to pass upon its sufficiency, and, upon finding it to be sufficient, thereupon to order and adjudge that it he unlawful to grant a license in said township to any applicant for a period of two years from the date of the filing of the remonstrance; that, inasmuch as no appeal was taken hy appellant from this order of the hoard of commissioners, he had no standing in the commissioners’ court, and, consequently, had none in the circuit court on ap
“If three days before any regular session of the board of commissioners of any county, a remonstrance in writing, signed by a majority of the legal voters of any township, or ward in any city situated in said county, shall be filed with the auditor of the county against the granting of a license to any applicant or against such granting to all applicants for the sale of spirituous, vinous, malt or other intoxicating liquors, under the law of the State of Indiana, with the privilege of allowing the same to be drunk on the premises*16 where sold within the limits of said township, or city ward, it shall be unlawful thereafter for such board of commissioners to grant license to any such applicant therefor during the period of two years from the date of filing of such remonstrance; or if such remonstrance shall he against all applicants then it shall he unlawful for said commissioners to grant a license to any applicant therefor during a period of two ’years from the date of the filing of such remonstrance against all applicants; if any such license should be granted by said board during said period, the same shall be null and void, and the holder thereof shall be liable for any sales of liquors made by him the same as if such sales were made without license, and such violator of the law shall he subject to arrest and punishment as if no license had heen issued. The number to constitute a majority of the voters herein referred to shall be determined by the greatest aggregate vote cast in said township or ward for candidates for any office at the last election preceding the filing of such remonstrance. Provided, however, that any remonstrance which is not directed personally against an individual, hut which is directed against all applicants, shall he separate and distinct, shall contain the name of no individual, hut shall he directed to the hoard of county commissioners directly against the issuing of any such license to any person during the said two years. And provided further, that the following forms of remonstrance shall he sufficient under the foregoing provisions of this section, viz.”
Rehearing
On Petition for Rehearing.
It must be remembered that section nine of the Nicholson law, as originally enacted, contained no provision authorizing the filing of a general or “blanket” remonstrance, as it does since it has been amended. In State v. Gerhardt, supra, the question was propounded on page 473: “Does the remonstrance provided in section nine apply to the particular applicant whose application is then' pending and against which it is addressed ?” In answer to this interrogation the court said: “We are of the opinion that the remonstrance, provided for by section nine, has application
We are satisfied that our decision at the former hearing in regard to the time in which a remonstrator may withdraw his name from a general remonstrance, which he has legally signed by himself or agent, was right, and we reaffirm that he is not entitled, under the law, to withdraw his name from such a remonstrance after the beginning of the three-day period immediately preceding the regular session of the board of commissioners, prior to which time such remonstrance was filed as provided by the statute, but must abide thereby for the entire period of two years.
Petition for rehearing overruled.