158 Ind. 582 | Ind. | 1902
Appellant, John M. Ludwig, applied to the board of commissioners of Marion county, under §7278 Burns 1901, §5314 Horner 1901, for a license to sell intoxicating liquors at the village of Oaklandon, in Lawrence township, Marion county, Indiana. Written remonstrances, based on §7283i Burns 1901, purporting to have been signed by a majority of the legal voters of Lawrence township, were filed with the auditor of said county. By virtue of these remonstrances
The record discloses the following facts: Appellant gave the notice required by §7278 Burns 1901, §5314 Horner 1901, of his intention to apply for a license to sell intoxicating liquors, at the regular session of the board of commissioners of Marion county, beginning on the first Monday in May, 1900. On May 3, 1900, three days before the commencement of said session, two written remonstrances were filed with the auditor of said county. These remonstrances, which for convenience may be denominated number 1 and number 2, are as follows: “We, the undersigned residents and voters of Lawrence township, Marion county, Indiana, do hereby remonstrate against the granting of a license to John M. Ludwig to sell intoxicating, spirituous, vinous, or malt liquors in less quantities than five gallons at a time, with the privilege of allowing the same to he drank on the premises, in said township, as described in his application, in the town of Oaklandon.” “We, the undersigned residents and legal voters of Lawrence township, Marion county, State of Indiana, do hereby remonstrate against the
The first contained the names of 196 legal voters of said Lawrence township, and the second contained the names of’ 137 of the legal voters of said township. The names to birth remonstrances constituted a total of 333, which, as hereinafter shown, were a majority of all the legal voters of said township. The names of the remonstrators to the remonstrance number 1 were all signed thereto by Perry C. Apple, pursuant to the authority or power invested in him by a written instrument or document denominated a “Power of Attorney” duly signed, executed, and acknowledged by all of the remonstrators whose names said Apple thereafter subscribed to said remonstrance. This instrument, by which Apple was constituted as the attorney or agent of the remonstrators whose names were subscribed to remonstrance number 1, omitting the signatures and certificate of acknowledgment, is as follows: “Know all men by these presents, that we, the undersigned legal voters of Lawrence township, Marion county, Indiana, have constituted and appointed, and do hereby constitute and appoint, Perry O. Apple, of Lawrence township, Indiana, our true and lawful attorney for us, and in our names, place, and stead, to sign any and all necessary papers and remonstrances against the granting by the board of commissioners of Marion county, Indiana, to any applicant therefor, a license to sell spirituous, vinous, malt, or other intoxicating liquors under the laws of the State of Indiana, with the privilege of allowing the same to be drunk on the premises, at any and all places or locations within said Lawrence township. Witness our hands this 10th day of February, 1900.”
Appellant, in his verified motion filed in the circuit court to reject or strike out the remonstrances in question, alleged that Apple and Hindman had no authority to sign the names of the remonstrators to the remonstrances filed in the office of the auditor of Marion county, and that these documents were not signed and filed pursuant to any authority. Before appellant filed his motion to strike out and reject the remonstrances, it was agreed by the parties in open court “that M. M. Hindman signed the names of all the panties to said remonstrance purporting to be signed by John Smith and others (being remonstrance number 2), and that before said Hindman so signed said names each of the three powers of attorney had been executed; that the persons whose names were signed to said remonstrance by said Hindman
The questions arising under the facts in this case, and, in truth, the only ones discussed by the parties, are: (1) Were the legal voters of Lawrence township, appellees here
We are of the opinion that these questions must be answered in the affirmative. Section 9 of the statute commonly known as the “Nicholson law”, in force since June 28, 1895, being §7283i Burns 1901, upon which the remonstrances in this case are based, which law, as held by this court, is supplemental to the liquor law of 1875, provides: “If, three days before any regular session of the board of commissioners of any county a remonstrance in writing, signed by a majority of the legal voters of any township or ward in any city situated in said county shall be filed with the auditor of the county against the granting of a license to any applicant for the sale of spirituous, vinous, malt or other intoxicating liquors under the law of the State of Indiana, with the privilege of allowing the same to be drunk on the premises where sold within the limits- of said township or city ward, it shall be unlawful thereafter for such board of commissioners to grant such license to such applicant therefor during the period of two years from the
In Cochell v. Reynolds, 156 Ind. 14, an attempt was made to obtain a decision of this court in regard to the right of the legal voters of a township or ward to exercise their right of remonstrance under this section through a duly appointed and constituted agent; but the question was left undecided for the reason that, in that case, the matter of remonstrating or not remonstrating under the authority conferred by the power of attorney was left wholly to the discretion of the agent. In the course of the opinion in that appeal, Baker, J., said: “To each voter is committed the right to decide whether or not he will oppose any or all applications. He may be hostile to the commerce and determine that he will resist every application. He may favor a well regulated traffic and conclude to thwart only those applicants he deems unfit.”
In the appeal of Castle v. Bell, 145 Ind. 8, the question in respect to the right of voters of a township to remonstrate, under §1218 Burns 1901, §5314 Horner 1901, through an attorney, against the granting of a license to sell intoxicating liquors, on the ground of immorality or unfitness of the applicant, was presented and decided. It was affirmed in that appeal, as had been previously affirmed by this court, that a proceeding before the board of commissioners to obtain a license to sell intoxicating liquors under the liquor law of 1875 was a judicial proceeding, in the nature of a civil action, which might be prosecuted or defended in person or by attorney, and the right of a voter or
The Nicholson law of 1895, as we have said, is supplemental to the liquor law of 1875, and it in no more manner deprives a voter or voters of a township, wherein an applicant for a license desires to sell intoxicating liquors, of the right or privilege to remonstrate under §7278 Burns, supra,, being section 3 of the liquor law of 1875, on the grounds of immorality or unfitness of the applicant. Under §9, supra,, of the “Nicholson law,” in case a majority of the voters desire to oppose the granting of a license, they are relieved of the burden of basing their remonstrance on the grounds of immorality or unfitness of the applicant, and are not required to assign any cause whatever for their opposition to the granting of the license. A remonstrance filed under said §9, §7283i Burns 1901, has no regard whatever for the merits of the application. It will operate to’ defeat and bar the applicant who is fit to be intrusted with a license, in like manner as it does one who is unfit. When the board of commissioners, upon a hearing, finds that such a remonstrance was signed by a majority of the legal voters of the township or ward, as the case may be, and that the same was filed with the auditor of the county within the time prescribed by the statute, the power or jurisdiction of the board in the matter of the application in the particular case is thereby terminated, and the board can proceed no further therein, but must dismiss the application at the cost of the applicant. State v. Gerhardt, 145 Ind. 439, 33 L. R. A. 313; Massey v. Dunlap, 146 Ind. 350.
The proposition is evident, we think, that when the voters avail themselves of the privilege to remonstrate under §9 of the act of 1895, they thereby become, to an extent at least, adverse parties to the applicant in the particular proceedings for a license, as do those who remonstrate for the reason of his unfitness. Of course, the former interpose their remonstrance for the single purpose of ousting the board of
The exercise of the right of remonstrating under the statute in controversy is not in the nature of exercising a right to vote against the liquor traffic in general. The right or privilege conferred is that of permitting the voters of a township or ward, after an applicant for a license has instituted his proceedings, to register their opposition through a written remonstrance against granting him a license to retail liquors, without assigning any reasons for their opposition. Consequently, when the agents of appellees in this ease, under the authority given them, subscribed the names of their principals, appellees herein, to the remonstrances involved, and placed the same on file in the office of the auditor, they did not thereby cast the votes of appellees against the traffic of intoxicating liquors, but they simply registered, as they were directed to do under the power of attorney, the opposition of appellees against granting the particular license to appellant, and thereby tendered a special issue relating to the jurisdiction of the board, to be determined by that body, subject to an appeal by the aggrieved party to a higher court. If the question was in respect to the right of any of the appellees to appoint and employ some attorney at law of their choice to appear in any or all of the courts of justice in Marion county, and defend them in-any and all actions or suits that might thereafter be instituted against them, and to sign for them all necessary answers and pleadings in making their defense, certainly such right could not be successfully controverted. Under the provisions of the power of attorney involved in the ease at bar, the parties designated and constituted as the attorneys or agents of appellees herein were, in effect, directed to register, through the written remonstrance, the protest of each of their principals against the granting of a license to every applicant that might thereafter apply, and
The right of voters remonstrating through the agency of another, or any of them, to entirely revoke or modify the power conferred upon their agent before the remonstrance is filed, must be conceded; and their further right, after the filing of the remonstrance, and before the beginning of the three days’ limitation, of any or all of such remonstrators, to withdraw their names from the document, as held in State v. Gerhardt, 145 Ind. 439, White v. Prifogle, 146 Ind. 64, and Sutherland v. McKinney, 146 Ind. 611, must also be granted.
It is insisted by counsel for appellant that the words “any applicant”, as employed in the power of attorney in this case, serve to invest the attorney or agent thereby appointed with a discretion to remonstrate against the granting of a license to some applicants, and not against others. This contention is untenable. The instrument in question must be construed to effectuate the object or purpose, if the same can be ascertained, of those by whom it is executed. From the positive language employed therein, it is certainly evident that those executing the instrument intended that the attorney or agent designated should remonstrate in their names, and for them, against granting a license in all cases in which such privilege was sought by an applicant, for the purpose of vending intoxicating liquors in their township. While perhaps it would have been better, in drafting the
Without further comment, we are constrained, under the facts in this case, to hold that the remonstrances in dispute were valid, and are therefore sustained, and by reason of their force and effect the lower court was justified in dismissing appellant’s application, and in rendering judgment against him for costs. There is no error prejudicial to appellant in any of the rulings of the court, and the judgment is therefore affirmed.