145 Ind. 8 | Ind. | 1896
— The appellant applied to the board of commissioners of the county of Warren, at its December session, 1894, for a license to sell intoxicating liquors, in a less quantity than a quart. The board, upon a hearing, refused to grant the license, and an appeal was taken by the appellant to the Warren Circuit Court, from which a change of venue was granted to the Fountain Circuit Court, wherein, upon a trial by the court, a license was again denied the appellant and judgment rendered against him for cost. Before the board of commissioners, a written remonstrance was filed, objecting to the issuing of a license to the appellant upon the grounds that he was in the habit of becoming intoxicated, and of other unfitness therein specified. In this remonstrance it was alleged, that the remonstrators were voters of the township wherein the appellant was intending to sell the intoxicating liquors, and the names of George Bell and some eleven other persons were signed to the remonstrance. After the names of these remonstrators, were the words: “By William L. Rabourn, attorney for remonstrators.77 Appellant unsuccessfully moved, both before the commissioners and in the circuit court, to strike out this remonstrance upon the ground that it disclosed upon its face, that the names of the remonstrators were signed by attorney. The overruling of this motion is the error assigned.
Counsel for appellant insist, that under the law, the names of the remonstrators were required to be affixed in person or by some one especially directed to do so by the person remonstrating, and not by some one acting under the limited authority of an attorney at law. It has been held by this court that the proceeding for a license to sell intoxicating liquors, under the statute, is a judicial proceeding. Halloran v. McCullough, 68 Ind. 179; List v. Padgett, 96 Ind. 126.
This onus rests upon the applicant, and such proof is required of him before he can obtain a license, without regard to the fact that a remonstrance as to his unfitness has or has not been interposed to the granting thereof.
Of course, it must be understood that if upon the hearing of the application, the remonstrators seek to establish the grounds of unfitness, as charged in their remonstrance, the burden, in this respect, is upon them to do so by a preponderance of evidence. Where evidence upon the point of the applicant’s fitness is introduced pro and con, the question then to be determined upon a consideration of all the evidence given in the cause is, does the same preponderate in favor of his fitness to be intrusted with the license in question? If it does, the law awards it to him, otherwise his request therefor should be denied.
Under section 7278, E. S. 1894 (section 5314, R. S. 1881), it is the privilege of any voter of the township, wherein the applicant desires to retail intoxicating liquors, to- remonstrate in writing, against the granting of the license to him, on account of his immorality or other unfitness. Upon a reasonable interpretation of this provision of the statute, it is manifest that its purpose was to authorize a voter, by a remonstrance in writing, duly filed before the board of commissioners, to make himself an adverse party to the petitioner in the proceedings instituted by the latter to ob
Judgment affirmed.
