Lee v. Shull

May 25, 1909
No. 21,341
Reporters:
, ,
Before:
Hadley
Hadley, J.

On May 29, 1908, three days before the regular June session of the Board of Commissioners of the County of Wells, a general remonstrance against the granting to any one of a license to sell intoxicating liquors at retail, within the second ward of the city of Montpelier, was filed with the auditor of said county, which remonstrance, when filed, contained the names of 131 persons. Appellant had previously given notice that he would, at the June ses*311sion of said board, apply for a license to retail liquors ‍‌​‌​​‌​​​‌​​​‌‌​​​‌​​​​​​‌‌​‌​​‌​​​​​​‌‌​​‌‌‌‌​‌‌​‌‌​‌​‌​​‌‌​​​​‌‌‌‌‌​​​​​‌​‌​‌‌​‌‌​​​​‌‌​​​​​​​‍in said ward. At the last preceding election there were 213 legal votes cast in the ward, of which number 107 constituted a majority. Of the 131 signers to the remonstrance, seven were shown to be not legal voters of the ward. Four others of the number had revoked the powers of attorney before their names had been attached to said remonstrance, thus reducing the number of remonstrators to 120. Of these 120, twenty-two had, on Thursday, May 28, executed and filed with the auditor their written withdrawals from the remonstrance, and on the next day, to wit, Friday, May 29, reexecuted the remonstrance by attorneys in fact, who were authorized so to do by new powers executed after the filing of the withdrawals, and before the filing of the remonstrance.

So the case comes to this: If the twenty-twp persons who withdrew from the remonstrance on Thursday, and reexecuted the same on Friday, before filing, are to be counted as remonstrators, then a majority of the legal voters of the ward were remonstrators, and neither the ‍‌​‌​​‌​​​‌​​​‌‌​​​‌​​​​​​‌‌​‌​​‌​​​​​​‌‌​​‌‌‌‌​‌‌​‌‌​‌​‌​​‌‌​​​​‌‌‌‌‌​​​​​‌​‌​‌‌​‌‌​​​​‌‌​​​​​​​‍commissioners nor the circuit court acquired jurisdiction to authorize the issuance of a license to appellant, as was held by the court below, and the case must be affirmed.’ If said twenty-two persons were bound by their withdrawals, filed with the auditor on Thursday, and their effort to reexecute the remonstrance on Friday was a nullity, as contended by appellant, then the cause must be reversed.

1. *3122. 3. *311Relating to the construction of section nine of the act of 1895 (Acts 1895, p. 248, § 7283i Burns 1901), known as the Nicholson law, and as amended by the act of 1905 (Acts 1905, p. 7, § 8332 Burns 1908), known as the Moore amendment, the following propositions may be deemed as settled: (1) A remonstrance against the issuance of a license to retail intoxicating liquors may be filed on Friday immediately preceding the Monday on which a regular session of the board of commissioners begins. § 1350 Burns 1908, § 1280 R. S. 1881; Flynn v. Taylor (1896), 145 Ind. *312533, 536; Conwell v. Overmeyer (1896), 145 Ind. 698; White v. Prifogle (1896), 146 Ind. 64, 65; Shaffer v. Stern (1903), 160 Ind. 375; Cain v. Allen (1907), 168 Ind. 8, 28. (2) Voters may ‍‌​‌​​‌​​​‌​​​‌‌​​​‌​​​​​​‌‌​‌​​‌​​​​​​‌‌​​‌‌‌‌​‌‌​‌‌​‌​‌​​‌‌​​​​‌‌‌‌‌​​​​​‌​‌​‌‌​‌‌​​​​‌‌​​​​​​​‍sign a remonstrance, and may withdraw therefrom in person, or by duly authorized attorneys. Castle v. Bell (1896), 145 Ind. 8, 11; Ludwig v. Cory (1902), 158 Ind. 582; Ragle v. Mattox (1902), 159 Ind. 584; Shaffer v. Stern, supra; Cain v. Allen, supra. (3) Persons who have signed a remonstrance in person, or by attorney, which has been placed on file in the auditor’s office before the Friday next preceding a regular session of the board of commissioners, may withdraw their names therefrom at any time not later than Thursday midnight next before such regular session. In such case the document becomes effective as a remonstrance on the beginning of Friday, and it is then too late to withdraw.

4. As to a paper not filed in the auditor’s office, as a remonstrance, until sometime during the preceding Friday, signers may withdraw their names therefrom at any time before filing, and may revoke a power of attorney to sign the same at any time before the power is exercised. State v. Gerhardt (1896), 145 Ind. 439, 33 L. R. A. 313; White v. Prifogle, supra; Sutherland v. McKinney (1897), 146 Ind. 611; Cain v. Allen, supra; Miller v. Resler (1909), post, 320; Davis v. Affleck (1905), 34 Ind. App. 572.

5. The twenty-two persons aforesaid having, on Thursday, May ‍‌​‌​​‌​​​‌​​​‌‌​​​‌​​​​​​‌‌​‌​​‌​​​​​​‌‌​​‌‌‌‌​‌‌​‌‌​‌​‌​​‌‌​​​​‌‌‌‌‌​​​​​‌​‌​‌‌​‌‌​​​​‌‌​​​​​​​‍28, executed and filed with the auditor their withdrawals from the remonstrance, on Friday morning the legal status of the intended remonstrance was the same as if it had never been signed by those who had withdrawn; and, the withdrawals having reduced the number of remonstrants to less than a majority of the voters of the ward, the document, as a remonstrance, was thereby rendered of no consequence. It had not reached the files of the *313auditor’s office, and had never been effective for any purpose, and those who had signed, and those who had withdrawn therefrom, had the same freedom of action with respect to any subsequent remonstrance that they would have enjoyed had they never signed the unsuccessful document. The record shows that after the withdrawals of May 28 the defunct remonstrance was wholly abandoned, and on May 29 a new remonstrance was executed and filed in the auditor’s office, containing the names of a majority of the legal voters of the ward in question. The filing was timely, and, having the names attached at ‍‌​‌​​‌​​​‌​​​‌‌​​​‌​​​​​​‌‌​‌​​‌​​​​​​‌‌​​‌‌‌‌​‌‌​‌‌​‌​‌​​‌‌​​​​‌‌‌‌‌​​​​​‌​‌​‌‌​‌‌​​​​‌‌​​​​​​​‍the time of filing, it was wholly immaterial when the several acts of signing took place, or whether any o£ the signers had ever before signed, and withdrawn from, a document intended, but which had proved abortive, as a remonstrance. It is only those who sign a remonstrance that is timely filed with the auditor, and becomes and remains effective to suspend the power of the board of commissioners for two years, who are themselves concluded by the act for the same period. The record presents no error.

Judgment affirmed.