171 Ind. 58 | Ind. | 1908
Appellee in this case applied to the Board of Commissioners of the County, of Howard, at its regular October session, 1907, for a license to retail intoxicating liquors in the city of Kokomo. The application was made under and in compliance with the provisions of a statute of this State authorizing boards- of commissioners to .grant a license for the retail of intoxicating liquors. Acts 1895, p. 248, §1, §8324 Burns 1908. No remonstrance against granting a license was filed in the proceedings before the board of commissioners. The latter tribunal, after hearing the. evidence upon, the application, found adversely t.o the applicant, and refused to grant him a license. Prom this decision of the board he appealed to the Howard Superior Court, wherein the ease was docketed for trial de novo as an ex parte proceeding. After the cause had reached the Howard Superior Court, the Attorney-General filed an application in said superior court, seeking thereby to have the State
“Comes now The State of Indiana, by its Attorney-General, James Bingham, and respectfully moves that The State of Indiana be recognized as a party defendant in this cause and be permitted to defend this ea§e, and that the State be accorded all the rights of a party defendant, and be allowed and permitted to file all proper pleadings as defendant, to make all motions and objections necessary in that behalf, and to take exceptions to all rulings of the court that may be right and proper to be taken upon behalf of the defendant for the following reasons, to wit: That in this cause the people of the State of Indiana are interested in the granting or refusing of license,, and 'for that reason have a right, by and through the State of Indiana, to exercise all the rights of a party hereto. And said State of Indiana does tender herewith its answer to said application of the applicant herein, and prays that the same be filed and become a part of the record of this cause. Wherefore, The State of Indiana moves that it be recognized as a party defendant,” etc. Signed: “The State of Indiana, by James Bingham, Attorney-General. ’ ’
Upon the objections of the applicant, the court denied this application, and also overruled the Attorney-General’s demand to appear in said cause as a matter of right, and to produce and examine witnesses in opposition to the application, and to cross-examine the witnesses who testified on •behalf of the applicant; to all of which rulings and decisions of the court the State, through the Attorney-General, excepted. . Upon the trial, at the conclusion of the evidence given on the part, of witnesses produced by the applicant, and also of those called and examined on the court’s motion, the State produced certain witnesses and demanded the right to introduce and examine them in opposition to the application. This demand the court also overruled, to which ruling the State through its Attorney-General, excepted, the
2. Certain provisions of the statute authorize a legal voter to become an adverse party to such a proceeding by signing and filing a remonstrance, as provided and required by the statute; but no person can become a party as a remonstrant under the statute in such cases by filing a remonstrance for the first time after an appeal has been taken to the circuit court from the decision of the board of commissioners. Miller v. Wade (1877), 58 Ind. 91; List v. Padgett, supra; Ex parte Miller (1884), 98 Ind. 451; Head v. Doehleman (1897), 148 Ind. 145.
This court, in List v. Padgett, supra, affirmed that a voter who remonstrates exercises thereby a personal privilege. “He does not represent the public or any portion of the
In Castle v. Bell, supra, this court said: “When a person •becomes a petitioner for a license to sell intoxicating liquors, under the act of 1875, the burden is east upon him to prove, both before the commissioners and in the circuit court, in the event of an appeal, that he is not in the habit of becoming intoxicated, and is otherwise, under the law, a fit person to be intrusted with a license to sell such liquors. * * * This onus rests upon the applicant, and such proof is required of him before he can obtain a license, without regard to the fact that a remonstrance as to his unfitness has or has not been interposed to the granting thereof.”
But a proceeding to obtain a license under the statute is neither a suit by nor against The State of Indiana. As affirmed by the authorities cited, it is a civil statutory proceeding. The defense or opposition to such an application is authorized by the statute only by way of remonstrance upon the part of the voters. Had the legislature deemed it necessary and proper to have The State of Indiana appear as a defendant in such a case, it would undoubtedly have granted such authority by a positive enactment to that effect. But under the law as it now exists the court has no power or authority to admit the State of Indiana, or its Attorney-General, as a party defendant in a proceeding like the one at bar.
In Lowery v. State Life Ins. Co. (1899), 153 Ind. 100, we
It is argued that the State has such an interest in the welfare of all its citizens as will entitle it to appear and become a party defendant, -and oppose the granting of a license to retail intoxicating liquors, in a proceeding under the statute for that purpose. There is no merit or force in such argument. It may truly be said that the State, in its governmental capacity, has such an interest in the welfare of its citizens as will prompt it, through its legislative department, to enact all constitutional laws necessary to protect the lives, property, morals and health of its citizens in general, and also in coercing respect and obedience to such laws when enacted. But such interest alone, in the absence of authority granted by the legislature, does not invest or give the State the right to appear as a party litigant and contest the granting of a license to an applicant to retail intoxicating liquors. It has been well said by Mr. Justice Brewer, in the appeal of Missouri, etc., R. Co. v. Missouri R., etc., Comm. (1901), 183 U. S. 53, 60, 22 Sup. Ct. 18, 46 L. Ed. 78: “It is true that the state has a governmental interest in the welfare of all its citizens, in compelling obedience to the legal orders of all its officials, and in securing compliance with
Appeal dismissed.