171 Ind. 175 | Ind. | 1908
Lead Opinion
Appellee was charged before the mayor of the city of Montpelier with selling intoxicating liquors without a license, in violation of a city ordinance. A trial resulted in a judgment in favor of appellee, from which
It is alleged that the circuit, court erred in overruling appellant’s demurrer to the fourth, eighth and ninth paragraphs of answer, and also erred in the conclusions of law stated- upon the special finding of facfe.
The questions raised by appellant’s demurrers to the fourth, eighth and ninth paragraphs of answer are covered by its exception to the conclusions of law announced upon the special finding of facts, and the merits of the controversy can best be determined upon the special findings and conclusions of law stated.
The facts specially found by the court were, in substance, as follows: On July 17, 1906, the common council of the city of Montpelier passed an ordinance to regulate and license the sale of intoxicating liquors, the first section of which defined the business district and prohibited the sale of intoxicating liquors in the residence and suburban parts of the city. Sections two and three were as follows:
“Section 2. It shall be unlawful for any person directly or indirectly, to sell, barter or give away, any spirituous, vinous or malt liquors, or to suffer the same to be drunk in his business room, house, outhouse, yard, garden, or the appurtenances thereto belonging in said city or within two miles of the corporate limits thereof without having first procured from the common council of said city a license to sell such liquor, as hereinafter provided.
Section 3. Every person desiring to make application for a license to sell spirituous, vinous or malt liquors to be drunk on the premises where sold, in said city or within two miles of the corporate limits thereof, shall give notice that he will make such application to the common council of said city, by publication of said notice for twenty days in some newspaper of general circulation printed and published in said city, which notice may be combined with the notice required by law to be given of intention to make application to'the board of county commissionex’s for a county license to sell such liquors; he shall present his application to the common*177 council at a regular session thereof and shall offer and present the same proof required by law to be made before the board of county commissioners on application-for a county license to sell such liquors, and he shall conform to and comply with all rules, regulations, requirements, resolutions and ordinances’of such common council, concerning the application for and granting of such licenses, which are now in force or which may hereafter be adopted by it. ’ ’
Section four provided that upon the granting of such license the applicant should pay to the city treasurer $250 as a fee therefor, and on presenting a receipt for such payment the city clerk should issue a license, to be signed by the mayor and clerk, authorizing the licensee to sell intoxicating liquors for one year at the place described in his application, and for issuing the license the clerk should charge and collect a fee of $1.
Section five made it unlawful to permit any game of chance or skill in such place, or in any room connected therewith, or to keep any wine-rooms, or to suffer any female of bad repute for virtue to loiter in any room where intoxicating liquors were sold, or in any room connected therewith.
Section six was as follows:
“Any person viojating any of the provisions of this, ordinance shall be fined in any sum not less than $10, nor more than $50.”
Section seven provided that the ordinance should take effect from and after its passage and approval,'and publication for two weeks in the Evening Herald.
The ordinance was duly passed, approved by the mayor and published as provided, and no part of the same had been repealed.
On February 9, 1907, appellee, in the city of Montpelier, sold one gill of whisky to Pat Whalen, at and for the price of ten cents, and suffered the same to be drank on the prem
Upon the facts so found, the court stated as conclusions of law that the city take nothing, and that appellee should recover his costs in the action, to which conclusions appellant at the time duly excepted.
In the case of Wiles v. State (1870), 33 Ind. 206, this
In the case of Padgett v. State (1884), 93 Ind. 396, it was held by this court that when an applicant had obtained a judgment declaring his right to a license, and properly tendered the requisite fee and bond, he could not be successfully prosecuted for violating the law upon a charge of selling without license, and that such applicant could not be in the wrong where he had done all that it was in his power to do. That holding is unsupported by citation of authority, and, in our opinion; is opposed to governing principles of law, and is therefore overruled.
The court erred in the conclusion of law -stated. The judgment is reversed, with directions to restate conclusions of law in favor of appellant, and to render judgment accordingly.
Dissenting Opinion
Dissenting Opinion.
As I view this case, under the fa'ets disclosed by the record, I am of opinion that the judgment of the trial court, acquitting appellee of having violated the ordinance in controversy, should be affirmed. Therefore I dissent from the holding of the majority of the court.
As the record discloses, appellee, at the time he applied to the council, was the holder of a license to retail intoxicating liquors in the city of Montpelier, which had been granted to him by the Board of Commissioners of the County of Blackford. It is shown by the special findings that the council “refused to permit the defendant [appellee herein] to submit his proofs and evidence, and refused to allow his witnesses to testify for him upon said subject-matter, and made therein the following order in reference to the matter, viz.: The application for liquor license, filed by Lee B. Mills, was presented, and on motion by Smith, seconded by Bain, was ordered not heard by the following vote [here the vote is set out].” The council, in refusing to permit appellee to introduce any evidence to establish that tinker the provisions of the ordinance he was entitled to the license for which he had applied, certainly exhibited a very high grade of arbitrary action. Having arbitrarily refused to grant appellee a hearing, or in any manner to direct that a license be issued to him, and he having endeavored in every manner to comply with all the requirements of the ordinance, manifestly appellant city is not iu position to maintain this action. The time.for which the license by the,board of commissioners had been granted was, when appellee .applied for a city license, already running, and he had paid the required fee for such license. In reason can it be said that he must employ the writ of mandamus to compel the common copncil to discharge a clear and unquestionable duty, and thereby possi
To hold, after he had done or offered to do everything required by the ordinance to entitle him to receive the docu-’ ment denominated a “license,” that he is liable to be prosecuted by appellant for the sale of the liquors in question, because at the time he did not actually hold such document, is to have more regard for the shadow than for the substance. The license is not of itself the right or privilege granted, but is more properly, as the authorities affirm, the evidence of such right or privilege. That the acquittal of appellee was right' is fully sustained by the following authorities: Houser v. State (1862), 18 Ind. 106; Padgett v. State (1884), 93 Ind. 396 (overruled by the majority opinion) ; Prather v. People (1877), 85 Ill. 36; Bennett v. People (1863), 30 Ill. 389; Zanone v. City of Mound City (1882), 11 Ill. App. 334.
In the case last cited the court held that if the applicant for a license had complied with all the requirements of the city ordinance, but the municipal authorities had. failed to act on his application, he could not be prosecuted for selling without a city license. It would be true in this State that in case an applicant for a license to retail intoxicating liquors, to be granted by the board of county commissioners, is denied a hearing by that body, and thereafter offered to pay the required fee to the proper officer and give the bond exacted by the statute, he would not be justified, under such circumstances, in retailing intoxicating liquors, but would be required to resort to mandamus to compel the board to award him a hearing. The board of commissioners in granting a license to retail liquors acts judicially, and before an applicant therefor is entitled to be granted a license by that
In this case the common council possessed no power or right under the ordinance to inquire, as does the board, into the fitness or qualifications of appellee to receive a city license. It was not invested with any judicial power, but the duty to be performed by it was merely ministerial. Such license is but the equivalent of a receipt to show the payment of the fee exacted by the city ordinance, the payment or proper tender of which fee would exempt appellee from a prosecution by the city as a retailer without license.
Many of the cases cited in the majority opinion, in view of the facts therein and the law of the particular jurisdiction in which they were decided, are not applicable to the question involved in this appeal. I conclude that the judgment of the lower court should be affirmed.