146 Ind. 350 | Ind. | 1896
Appellant was an applicant, at the regular March session, 1896, of the board of commissioners of the county of Gibson, for a license to sell intoxicating liquors in the Second ward in the city of Princeton, in said county.
A remonstrance in writing, under section 9 of an act of the legislature, approved March 11, 1895 (Acts 1895, p. 248), purporting to be signed by a majority of
The questions which the learned counsel for appellant urge upon us for consideration are:
1st. Is a remonstrance on the part of a majority of the legal voters of a township in which an incorporated city is situated sufficient, under the ninth section of the act in question, to defeat an application for a license to sell intoxicating liquors in a particular ward of said city?
2d. Does this section authorize two or more applicants to be joined and remonstrated against in the same remonstrance?
3d. What must be considered the highest office within the meaning of the last clause of section 9, and what election is meant or intended by said clause?
Section 9 of the act mentioned is as follows:
“If, three days' before any regular session of the board of commissioners of any county a remonstrance
The language of the section is: “If, etc., a remonstrance in writing, signed by a majority of the legal voters of any township or %oard in any city, etc., shall be filed, etc., against the granting of a license, etc., to any applicant for the sale of spirituous, etc., liquors * * * 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,” etc. This section mentions but two districts wherein the will of a majority of the legal voters thereof can defeat the granting of a license, to-wit: 1st. A township, and 2d, a city ward.
Under the act of 1875, an applicant for a license is
But where the application is made for a license to sell intoxicating liquors at some designated place in a township, but which place is beyond the limits of an incorporated city therein, then the law contemplates and requires that a majority of the legal voters of such township, residing anywhere therein, shall remonstrate in order to defeat such application. It follows then that, in the case at bar, the remonstrance in question should have been confined to the voters of the second ward of the city of Princeton, that being the particular district in which the appellant desired to conduct his saloon, and it was necessary to show that a majority of the voters-residing therein had signed the remonstrance, in order to thereby prohibit the board of commissioners in the first instance, or the circuit court upon appeal, from granting a license to the appellant. The general rule is, that where per
In the case of State v. Gerhardt, 145 Ind. 439, this court said: “We are of the opinion that the remonstrance, provided for by section 9, has application only to some particular applicant, and does not contemplate a general remonstrance, but one directed against each individual who desires to secure a license.” We still adhere to this view of the law, and are of the opinion that under a reasonable. construction of the statute, it must be held that it does not authorize persons remonstrating to join two or more applicants in the same remonstrance. From the language of the law we do not think that the legislature intended to authorize what might be termed a “blanket” remonstrance, covering all applicants for a license at the same session of the board of commissioners, but, upon the contrary, intended that there should be a separate remonstrance directed against each applicant. The fact is well recognized that there are persons in every community who are opposed to the traffic in ardent spirits, regardless of any legal restrictions imposed upon the sale thereof, or the required fitness, under the law, of the person desiring to engage in such business; while there are others who entertain views to the contrary, and do not object to a license for the sale of such liquors being granted to an applicant whom they
All “maneuvering,” “jockeying,” or “log-rolling,” in order to secure voters to sign a remonstrance, or to prevent them, if they so desire, from signing the same, ought to be condemned. The evident intention or policy of the law is, that the voters of the particular district may be permitted, without restraint or undue influence, to register their will against a liquor license being granted to an applicant therefor to sell his liquors in their midst.
We are next asked to give an interpretation to the following clause of section 9, namely: “The number of votes to constitute a majority of voters, herein referred to, shall be determined by the aggregate vote cast in said township or city ward for candidates for the highest office at the last election preceding the filing of such remonstrance.” Appellant raises a number of inquiries relative to the meaning of this clause,
It is to be regretted that the legislature did not draft this law in such a manner that its meaning in every particular could not be questioned. All our State, county, and township elections, under existing laws, occur biennially at the same time, namely, on the first Tuesday after the first Monday in November. All city elections, in cities like Princeton, organized under the general laws of the State, are now also held biennially, on the first Tuesday in May. Acts of 1893, p. 50; Burns’ R. S. 1894, section 3476. It is clear that where the application is made for a license to conduct a saloon at some place in the township outside of the limits of an incorporated city therein, that the majority of the voters of the township should be determined by the aggregate vote cast therein for candidates for the highest office at the November election last preceding the filing of the remonstrance, and that a majority of that vote must be deemed and held to be within the meaning of the law, a.majority of all the legal voters of the township at the time of filing the remonstrance. In the event the applicant desires to obtain a license to operate a saloon in a ward of an incorporated city, whether incorporated and acting finder the general laws of the. State relating to the incorporation of' cities, or otherwise, then the majority of the voters should be determined by aggregating the vote of that particular ward as cast therein at the last general city election preceding the filing of the remonstrance for candidates for the highest municipal office to be filled at said election.
The next inquiry is, what did the legislature mean by the phrase “for the highest office?” One of the
The adjective “high” is used in various senses, frequently meaning prominent. It was employed by the legislature in the section in controversy in the superlative degree, thereby meaning, in a popular or political sense, we think, the most prominent office upon the election ballot at the last preceding election.
Counsel for appellant say: “At the last State election, held in November, 1894, no Governor was elected, but three constitutional administrative officers, namely: Secretary of State, Auditor, and Treasurer, were elected, and also two judges of the Supreme Court. Is the Secretary of State a higher office than judge of the Supreme Court?” The Governor is the highest executive officer of the State, and the judges of the Supreme Court, are the highest judicial officers. The former standing at the head of one of the co-ordinate branches of the State government, and the latter at the head of another. Therefore, in a legal sense, it may be properly said, that the former and latter are of equal official rank. But the Governor has always been understood to be the highest officer chosen by the
The mayor of a city is properly considered the highest official thereof; standing as he does at the head of the executive department of the municipal government, and that of councilman may be considered next in rank. It would follow, therefore, that where the application is for a license to sell intoxicating liquors in a ward of an incorporated city, a majority of the legal voters of the ward must be determined by the aggregate vote cast by the electors thereof for the candidates for mayor at the last preceding city election, and in the event no mayor was elected at said election, then the majority must be determined, in like Manner, by the vote cast in the ward for candidates for councilman.
From the conclusions reached the contentions of appellant as to the errors alleged must be sustained.
The judgment is reversed at the cost of appellees, and the cause remanded, with instructions to the lower court to grant a new trial and sustain appellant’s motion to strike out the remonstrance.