182 Ind. 7 | Ind. | 1914
A proviso to §4 of the Proctor liquor law stipulates, ‘ ‘ That the number of retail licenses which may be granted in any city or township under this act shall not be more than one for each five hundred inhabitants thereof,
Appellee applied to the board of commissioners of Pulaski County at its April term, 1912, for a license to sell intoxicating liquors at retail in Cass Township of the county. This township at that time had more than 500 and less than 1,000 inhabitants. Appellants appeared and remonstrated against the grant of the license to appellee by the board on the ground that, as the population of the township was under 1,000 inhabitants, no license to retail in that township could lawfully be granted. In such township the sale of liquor at retail had not been excluded by local option election (Acts 1911 p. 363, §8316 Burns 1914) nor by general remonstrance under the provisions of the Moore Remonstrance Law. Acts 1905 p. 7, §8332 Burns 1914. The board sustained appellants’ remonstrance and rejected appellee’s application for license. On the trial of his appeal to the circuit court an opposite result was reached and from a judgment granting the license this appeal comes. The error assigned is that the court erred in overruling appellants’ motion for a new trial. The only cause assigned for a new trial which is properly presented and relied on for reversal is that the decision of the court is contrary to law; and this involves the one question whether the legislature, by the provision of the act of 1911, above quoted, intended to prohibit entirely the retail sale of intoxicating liquors in cities or townships whose total population did not reach the numerical standard fixed or,
What the measure of the number of licenses authorized by the act should be held to be when the question presented is one of plural licenses in a city or township is not a question of difficulty and has been determined by this court. In such ease the words of the proviso may be given the ordinary meaning which they may fairly be said to convey without infringing on the very manifest intent of the legislature which is to regulate and restrict the sale of intoxicating liquor. And that is, that the unit of number for which a license may be granted, in a city or township where the number of inhabitants clearly authorizes one license and where it is claimed the number is sufficient to authorize more than one, must be a full unit for each of the plural licenses. State, ex rel. v. Board, etc. (1913), 179 Ind. 513, 101 N. E. 813. The effect ef the words of the proviso in such a case does not result in positive prohibition of the granting of any license at all in any city or township, but is merely a limitation on the number of licenses which may be granted therein.
But to say that the words of the proviso forbid the granting of a license in townships which contain less than 1,000 inhabitants necessarily leads to a positive legislative prohibition of the licensing and sale of intoxicating liquors in such townships. The inquiry then leads to the ascertainment whether such a construction is in harmony with the intention of the legislature, for always in the construction of a statute the intent of the lawmaking body must be sought and when discovered, it must control even to the modification of some particular words or parts of a statute. The injunction of the statute and canons of construction that particular words and phrases used in a statute are to be taken in their plain, ordinary sense are effective only when there is no obviously repugnant intent on the part of the legislature. This contrary or inharmonious intent may be sought in the context of tke same statute, in the general pur
Section 240 Burns 1914, §240 R. S. 1881; Shea v. City of Muncie (1897), 148 Ind. 14, 46 N. E. 138; Greenbush Cemetery Assn. v. Vanatta (1912), 49 Ind. App. 192, 94 N. E. 899; Johnson v. City of Indianapolis (1910), 174 Ind. 691, 93 N. E. 17; Thorn v. Silver (1910), 174 Ind. 504, 89 N. E 943, 92 N. E. 161; Princeton Coal, etc., Co. v. Lawrence (1911), 176 Ind. 469, 95 N. E. 423, 96 N. E. 387, and cases there cited. In the latter case it was said: “The rule is general that all consistent statutes that can stand together, as related to the same subject, shall be construed together and with reference to the whole system of which they form a part, and harmony and effect given to all, if this can consistently be done, so as to make the law consistent in all its parts and uniform in its application and results; and the intent, as collected from an examination of the whole, will prevail over the literal import of particular terms, and control the strict letter of such terms, when the latter would lead to injustice and contradictions. ’ ’ And this rule applies with added force in the ease of statutes passed at the same legislative session, for in such case it is to be presumed that they are equally in the minds of the legislators and, being related to the same subject-matter, they are to be impressed with a harmonious construction so that, if possible, all may stand and be fully effective. Princeton Coal, etc., Co. v. Lawrence, supra, and cases there cited. These rules must be held to apply with at least full force when the consideration is given to the terms of a proviso in a statute. That part of the Proctor Law particularly under consideration is in form and substance a typical example of a proviso and, as such, is to be strictly construed and limited to the objects fairly within its terms. The question to be answered, therefore, is whether, in view of the other provisions of the act and of other laws relating to the same subject-matter, the positive prohibition of the sale of intoxicat
But the construction contended for would do more than destroy the harmony of purpose which pervades the act. “Laws of a general nature are such as relate to a subjeet of a general nature, and a subject of a general nature is one that exists or may exist throughout the state, or which affects the people of the state generally, or in which the people of the state have an interest.” 1 Lewis’ Sutherland, Stat. Constr. (2d ed.) §197. The law before us clearly wTas intended by the legislature to be a general law. Such a law must operate uniformly throughout the State. Constitution, Art. 4, §23. Now if the first of the provisos under consideration is to be construed as forbidding the licensing of the sale at retail of intoxicating liquors in townships under the fixed numerical measure and the second one, as it clearly does, authorizes licenses in such townships where they existed at the time of the passage of the act, the uniform operation of the law is destroyed, for it permits license in one township and denies it in another where the circumstances and conditions are the same. In one the sale may be licensed indefinitely, while the law remains in force, unless prevented by remonstrance or local option election, while in the other it can never be, even though authorized by local option election. Doubtless the legislature might, in the exercise of the police power, provide by law, that the sale of intoxicating liquors should not be licensed in any rural town
That considerations of public policy arising from the disorder inherent in the traffic in intoxicating liquors and the known lack of police surveillance and protection in rural communities might well have raised an intention in the legislative mind to provide for the exclusion of the traffic from townships of less than 500 or 1,000, is clear. But this they have done by provisions less vague than the words of the
Section 28 of the Proctor Law expressly names the Moore Remonstrance Law and the Nicholson Law and continues them in force. It appears very palpably that the legislature, by its recognition of these laws which provide for restriction and regulation and not prohibition except such as is optional with the people of the particular local community and by the later introduction and passage of the local option election law (Acts 1911 p. 244, §8323 Burns 1914), put its own construction on this proviso. That construction is obviously contrary to the one contended for by appellants.
The conclusion is, that one license may lawfully be granted in any township of the State although the number of inhabitants do not reach the total of the full unit fixed, provided that the contrary has not been decreed by the people of the community by local option election or remonstrance.
Judgment affirmed.
Note. — Reported in 105 N. E. 479. As to the general question of discretion as to granting of licenses for sale of intoxicating liquors, see 21 L. R. A. 580. As to the discretion of local authorities as to the number of licenses to be granted for sale of intoxicating liquors, see 18 L. R. A. (N. S.) 386. As to the validity of a statute, ordinance or order limiting the number of saloons in a municipality, see Ann. Cas. 1913 E 365. As to rules for construing statutes, see 12 Am. St. 827. See, also, under (1, 5) 23 Cyc. 1915 Ann. 80-64; (2) 36 Cyc. 1106, 1151; (3, 4) 36 Cyc. 1161; (6, 10) 36 Cyc. 1128; (7) 36 Cyc. 985, 998; (8) 36 Cyc. 1130; (9) 8 Cyc. 801.