Sexton v. Goodwine, No. 4,561

No. 4,561 | Ind. Ct. App. | Nov 18, 1903

Lead Opinion

Robinson, C. J.

Application by appellant for a liquor license. The court found appellant, to be a fit person to be entrusted with such license, and that he gave the required notice of his intention to apply for a license at' the September term, 1901, of the board, commencing Septemher 2, 1901. Prior to August 30, 1901, remonstrances had been circulated and signed by 173 legal voters. The remonstrances were filed in the county auditor’s office on August 30, 1901, at 9 o’clock p. m. The total number of votes cast in the township for the highest office at the November election in 1900 was 332. Prior to the 30th day of August, 1901, Victor White, Lewis Reynolds, Charles Lape, William P. Dowell, and James M. Tharp, who were legal voters, had signed the remonstrance. After attaching their names to the remonstrance and delivering the same into the custody of other remonstrators who were circulating the same, they signed, at the request of the applicant, a paper reading: “We, the undersigned legal voters of Pike township, Warren county, Indiana, hereby withdraw our names from the remonstrance against John Sexton for a license to sell intoxicating liquors in said township, and ask that our names be not counted as remonstrators against the granting of such license. Witness our hands this August 30, 1901.” After signing this paper, it was delivered to appellant, the applicant, and was by his attorney filed in the auditor’s office at 5:30 o’clock p. m., August 30, 1901. Appellant’s application for a license was filed in the auditor’s office August 31, 1901. Upon these facts the court denied the application.

The only question presented is whether the five names should have been counted as remonstrators. As the remonstrance was filed on Friday, August 30, 1901, before the meeting of the board on Monday, September 2, 1901, it was filed in time. Flynn v. Taylor, 145 Ind. 533" court="Ind." date_filed="1896-06-19" href="https://app.midpage.ai/document/flynn-v-taylor-7052888?utm_source=webapp" opinion_id="7052888">145 Ind. 533. The remonstrators, having the right to file the remonstrance on Friday, had the -night to file it at any time during that day; that is, they had the whole of Friday to file it. Adams v. Dale, 29 Ind. 273" court="Ind." date_filed="1868-05-15" href="https://app.midpage.ai/document/adams-v-dale-7037671?utm_source=webapp" opinion_id="7037671">29 Ind. 273. The word “day” in a statute means the entire twenty-four hours. “It commences at 12 o’clock p. m. and ends at 12 o’clock p. m., running from midnight to midnight.” Benson v. Adams, 69 Ind. 353" court="Ind." date_filed="1879-11-15" href="https://app.midpage.ai/document/benson-v-adams-7043456?utm_source=webapp" opinion_id="7043456">69 Ind. 353, 35 Am. Rep. 220. As a general rule, the law knows no division of a day. But this rule is never allowed where it will promote injustice or wrong, and fractions of a day will be regarded when important in the settlement of conflicting interests, as in determining the priority of different mortgages, deeds, or other instruments executed by one person to different parties on the same day. Gibson v. Keyes, 112 Ind. 568" court="Ind." date_filed="1887-12-23" href="https://app.midpage.ai/document/gibson-v-keyes-7049093?utm_source=webapp" opinion_id="7049093">112 Ind. 568; Pressley v. Board, etc., 80 Ind. 45" court="Ind." date_filed="1881-11-15" href="https://app.midpage.ai/document/pressley-v-board-of-commissioners-7044850?utm_source=webapp" opinion_id="7044850">80 Ind. 45.

However, the question presented by this appeal is expressly decided by the Supreme Court. In State v. Gerhardt, 145 Ind. 439" court="Ind." date_filed="1896-06-19" href="https://app.midpage.ai/document/state-v-gerhardt-7052878?utm_source=webapp" opinion_id="7052878">145 Ind. 439, 473, 33 L. R. A. 313, the court, discussing this section of the statute, said: “Until the beginning of this three-days’ period, whether the remonstrance has been placed on file or not, any remonstrator must be deemed to have the absolute right, by some affirmative act of his own, to withdraw his name from such remonstrance. But if this right is not exercised prior to the beginning of the first day of this three-days’ period, it no longer exists.” And in White v. Prifogle, 146 Ind. 64" court="Ind." date_filed="1896-06-19" href="https://app.midpage.ai/document/white-v-prifogle-7052929?utm_source=webapp" opinion_id="7052929">146 Ind. 64, the court said: “It follows therefore that the preceding Friday is the first day of the three-days’ period, and we held in State v. Gerhardt, 145 Ind. 439" court="Ind." date_filed="1896-06-19" href="https://app.midpage.ai/document/state-v-gerhardt-7052878?utm_source=webapp" opinion_id="7052878">145 Ind. 439, that if the right to withdraw from a remonstrance Was not exercised prior to the beginning of the first day of this period, that it no longer existed.” See, also, Conwell v. Overmeyer, 145 Ind. 698" court="Ind." date_filed="1896-06-19" href="https://app.midpage.ai/document/conwell-v-overmeyer-7052918?utm_source=webapp" opinion_id="7052918">145 Ind. 698; Sutherland v. McKinney, 146 Ind. 611" court="Ind." date_filed="1897-01-26" href="https://app.midpage.ai/document/sutherland-v-mckinney-7053016?utm_source=webapp" opinion_id="7053016">146 Ind. 611.

Judgment affirmed.

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Rehearing

On Petition for Rehearing.

Robinson, J.

Appellant’s counsel earnestly insist upon a rehearing, and the argument rests upon the following in Ludwig v. Cory, 158 Ind. 582" court="Ind." date_filed="1902-05-23" href="https://app.midpage.ai/document/ludwig-v-cory-7054357?utm_source=webapp" opinion_id="7054357">158 Ind. 582: “The right of voters remonstrating through the agency of another, or any of them, entirely to 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" court="Ind." date_filed="1896-06-19" href="https://app.midpage.ai/document/state-v-gerhardt-7052878?utm_source=webapp" opinion_id="7052878">145 Ind. 439, White v. Prifogle, 146 Ind. 64" court="Ind." date_filed="1896-06-19" href="https://app.midpage.ai/document/white-v-prifogle-7052929?utm_source=webapp" opinion_id="7052929">146 Ind. 64, and Sutherland v. McKinney, 146 Ind. 611" court="Ind." date_filed="1897-01-26" href="https://app.midpage.ai/document/sutherland-v-mckinney-7053016?utm_source=webapp" opinion_id="7053016">146 Ind. 611, must also be granted.” It will be noticed that in the Ludwig case the right of remonstrators to withdraw was not directly in issue, but that the above language was used in considering the nature of the right exercised by a person signing a remonstrance, either in person or through an attorney in fact.

In the Gerhardt case Was this question: “Has a remonstrant, after the expiration of the time within which a remonstrance may be filed, the absolute right without cause to Withdraw from it, leaving the remonstrance, which theretofore had contained sufficient remonstrants to defeat the granting of the license, insufficient on account of the withdrawal of the signatures to accomplish the result?” After stating that this question must be answered in the negative, the court said: “Until the beginning of this three-days’ period, whether the remonstrance has been placed on file or not, any remonstrator must be deemed to have an absolute right, by some affirmative act of his own, to withdraw his name from such remonstrance. But if this right is not exercised prior to the beginning of the first day of this three-days’ period, it no longer exists.” (Our italics.) This language states a general rule with reference to withdrawals, and is plain. We can not agree with the statement of counsel that if anything can be said to be contained in the above language supporting appellees’ position, it must be admitted to be obiter. We think the language used by the court is plain, and that it applies to the case at bar. The remonstrance in the case at bar could be filed on Friday (Flynn v. Taylor, 145 Ind. 533), but the case of State v. Gerhardt, supra, plainly holds that the right to withdraw did not exist after the beginning of Friday.

Petition overruled.