179 Ind. 196 | Ind. | 1912
This was an action for mandate brought under the act of March 6,1911 (Acts 1911 p. 541), which abolished the writ of mandate and provides that the causes of action theretofore remedial by means of such writs shall exist and be remedial by complaint and summons, in the name of the State on relation of the party in interest, as other civil actions. This appeal involves a construction of §23 of the act .approved March 4, 1911 (Acts 1911 p. 244), known as the Proctor Law, which section reads as follows: “Every person, firm or corporation to whom a license for the sale of intoxicating liquors at’ retail or any renewal thereof is granted, shall, before making any sales of intoxicating liquors' under such license, or renewal, pay into, the treasury of said township, city or incorporated town, the license fees as follows, to wit: That if such premises are located within the corporate limits of any city of the first and second classes, or within four miles thereof, the city shall charge a license fee of three hundred ($300) dollars; if within the corporate limits of any other city or within two miles of such corporate limit, the sum of two hundred ($200) dollars; and if within the corporate limits of any incorporated town or within two miles of the corporate limits thereof, the sum of one hundred and fifty ($150) dollars; if located without the corporate limits of any city or incorporated town and not within the distance from such city or incorporated town as hereinabove provided, the sum of fifty ($50) dollars shall be paid into the treasury of the township: Provided, That the common council of any city or the board of trustees of any incorporated town may in
On March 20, 1911, within thirty days from the time the act took effect, the city of Gary, then a city of the State of the fourth class, provided by ordinance duly enacted that the license fee to be exacted under the authority of §23 should be the maximum sum of $500. On February 19,1912, the common council of the city passed an ordinance which was duly approved by the mayor and which purported to repeal the former ordinance by which «the city had fixed the license fee at $500. On May 6, 1912, the relator, Eisler, was granted a license to sell intoxicating liquors at retail in the city of Gary by the board of commissioners of Lake County and on May 7, 1912, he produced and exhibited his county license to the controller and to the city treasurer, tendered $201 and demanded a city license. The demand was refused and this action was to compel these officers t.o accept the sum named and issue to
The judgment is reversed with instructions to the lower court to sustain the demurrer to appellee relator’s complaint.
Note.—Reported in 99 N. E. 980. gee, also, under (1, 8) 28 Cyc. 383; (5) 28 Cyc. 258; (6) 23 Cyc. 67. As to police power of state to regulate the sale or manufacture of intoxicating liquors, see 1 Am. St. 645; 35 Am. Dec. 331 ; 44 Am. Rep. 634.