150 Ind. 370 | Ind. | 1898
This was an application to the board of commissioners of Hancock county by the appellees to obtain a license to sell intoxicating liquor in a less quantity than a quart at a time to be drank on the premises. From the determination of said board there was an appeal to the circuit court. The appellants remonstrated on the ground, among others, that the room in which it was proposed to conduct such saleswas so situated and constructed as that such sales therein would violate the fourth section of the Nicholson law. Acts 1895, p. 250. A trial of the case in the circuit court resulted in a finding for the applicants, and judgment ¿warding a license to them, as prayed for, over appellants’ motion for a new trial on the ground that the finding was contrary to law.
Error is assigned on the action of the circuit court in refusing a new trial. The trial was upon an agreed statement of facts. It was not in the form of an agreed case under the statute, but the facts agreed upon, took the place of the evidence, as was the case of City of Shelbyville v. Phillips, 149 Ind. 552, and cases there cited.
But we are met with the objection that the bill of exceptions incorporating the agreed statement of facts does not show that such facts constituted all the evidence given in the cause, and the case just cited is referred to as authority for so holding. This case, however, is somewhat different from that. It was stated in the bill of exceptions here that: “The cause was submitted to the court for trial without the intervention of a- jury on the following agreed state
It is a common thing for members of the legal profession to use the words facts and evidence as synonymous, and in some instances we have seen the fact and the evidence thereof is one and the same thing; In viewT of all this, and the whole of the language quoted from the bill of exceptions, it is apparent that the word facts was used for the purpose of conveying the same meaning as the word evidence, and the court and counsel manifestly meant by the word “facts” the evidence; and in such a case it is our duty so to construe the language. Harris v. Tomlinson, 130 Ind. 426. And so construing the language, it is clear that the agreed statement was all the evidence given in the cause. And the bill of exceptions incorporating the agreed statement being properly in the record, it appears that all the evidence given in the cause is properly before us.
The objection, and the sole objection, urged to the finding is that the situation and condition of the room is such as would make it unlawful to sell therein.
It is conceded that the agreed facts entitled appellees to the license, unless the situation and arrangement of the room was such as that a sale therein would violate section 4 of the act in question. And appellants .insist that such was the arrangement and situation of the room, and hence that appellees were not legally entitled to a license, and therefore the finding that they were, was contrary to law.
The appellees, however, contend, that even though such was the situation and arrangement of the room, nevertheless, that was not a sufficient legal objection to defeat their application. And they further con
It must be conceded that at least a part of the things forbidden by the section, for instance, that, “no blinds, screens, or obstructions to the view of said room shall be arranged, erected, or placed so as to prevent the entire view from the street,” etc., relate to acts to be done or suffered after the issue of the license. And even though the license issue, and such obstructions to the view are erected, and no .sale takes place in such room under such license, there is no violation of the section, it has been held. Hipes v. State, 18 Ind. App. 426.
If, therefore, the things forbidden in the section relate to acts and things that may transpire after the grant of the license, it would be unreasonable to suppose that a trial of such questions was intended .to precede the granting of the license. It is true, some of the things forbidden in the section may not relate to future acts and occurrences, but the provisions of the section make no distinction between existing matters and those which occur in the future.
To maintain their position, appellants’ learned counsel refer us to the first section, but it seems to us that that section is against their contention, and not for it. The part of it cited reads thus: “That '-hereafter all persons applying for a license before any board of county commissioners, under the exist
'If the application is not required'to set forth such a description as shows that the interior of the room can be seen from the street in front of it, as we think it is not, it is difficult to see how that question can arise on application for a license. It is claimed by
The fact that the interior of the room could not be seen from the street in front of it has nothing whatever to do with the question of the applicant’s morality or immorality, fitness or unfitness. It has been frequently held that remonstrances under this section must proceed according to its provisions, and not otherwise. Fletcher v. Crist, 139 Ind. 121, and cases there cited; Head v. Doehleman, 148 Ind. 145, and cases there cited. A remonstrance under it can only be based on the immorality or other unfitness of the applicant.
Certainly, it would be extremely unreasonable to suppose that the legislature intended that the situation and arrangement of the room, so far as a view of the interior thereof from the street is concerned, should be investigated before the board of commissioners on an application for a license, unless its determination thereof should be final and conclusive on that question if unappealed from. And yet how absurd it would
It follows that the finding was not contrary to law, and hence there was no error in overruling appellants’ motion for a new trial. Judgment affirmed.