157 Ind. 360 | Ind. | 1901
Appellee was prosecuted in the lower court for the crime of selling intoxicating liquors without being duly licensed according to the laws of this State. On a trial before a jury he was acquitted of the charge, and the court rendered its final judgment discharging him. The State, under §1915 Burns 1901, §1846 Horner 1897, reserved certain questions of law arising on the charge of the court to the jury, and by virtue of the provisions of section eight of an act of the legislature entitled “An act concerning appeals,” etc., approved March 12, 1901 (Acts 1901, p. 565), §1337h Burns 1901, this appeal is taken directly to this court for the purpose of presenting and having determined the question in respect to the proper construction of the second proviso of section four of an act of the legislature, to regulate and license the sale of intoxicating liquors, etc., approved March 17, 1875 (Acts 1875, p. 55), §7279 Burns 1901, §5315 R. S. 1881 and Horner 1897.
Appellee has moved to dismiss this appeal principally upon the grounds (1) that the notices thereof given to the clerk of the lower court and to appellee were signed by the prosecuting attorney, instead of being signed by the Attorney-General; (2) that the assignment of errors has been signed by the prosecuting attorney instead of the Attorney-General; (3) because the appeal does not present a question arising upon the proper construction of a statute within the meaning of §1337h Burns 1901.
Section 1915 Burns 1901, §1846 Homer 1897, provides that “The prosecuting attorney may except to any opinion of the court during the prosecution of any cause,' and reserve the point of law for the decision of the Supreme Court. * * * In case of the acquittal of the defendant, the prosecuting attorney may take the reserved case to the Supreme Court upon an appeal at any time within one year,” That the proper
In State v. Jamison, sufra, we said: “WThile the services of the. prosecuting attorney may be and generally are accepted by the Attorney-General, in behalf of the State, in such appeals, still the latter officer has the exclusive control and management of the case upon appeal.” While we have said that the prosecuting attorney is authorized to subscribe the assignment of errors when the State appeals, still the Attorney-General is equally empowered to sign such pleadings, and the signature thereto of either of these officials will suffice.
In regard to the third ground alleged in the motion to dismiss, it may be asserted that the record discloses that the charge of the court of which the State complains clearly
Turning to the facts in this case which were agreed to- by both parties upon the trial below, and introduced as the evidence in the case, we find them to be substantially as follows : At the December session of the hoard of commissioners of Hamilton county, Indiana, William L. Sopher, appellee herein, after giving the required notice, filed his application before said board for a license to be granted to him to sell intoxicating liquors, with the privilege of allowing the same to be drank upon the premises where sold, such premises being a certain building situated in one of the wards of the city of Hohlesville, in said Hamilton county, Indiana. Certain voters and citizens of the township and ward in question remonstrated in writing before the board against granting a license to appellee to sell intoxicating liquors, for the alleged reason that he was not a fit person to be entrusted therewith. The application and remonstrance were heard by the board of commissioners at its- said December session, and thereupon a license to sell such liquors, with the privilege of allowing the same to be drank on the premises where sold, was granted to appellee. On December 11, 1899, after being awarded a license by the board, as aforesaid, and be
Passing the deficiency of this instruction arising out of its omission to inform the jury that it was also incumbent upon the appellant to pay to the county treasurer the license fee of $100, as required by §5 of the act of 1875, as amended in 1897 (Acts 1897, p. 253), §7281 Bums 1901,
As previously said, it is the part of section four embraced in this last proviso' over which the controversy in regard to the proper construction thereof arises. When the instruction in question is considered, it discloses that the trial court was of the opinion that at the time the accused sold the intoxicating liquor in controversy he was protected by his license under this provision of the statute, notwithstanding the fact that the appeal taken by the remonstrators to the circuit court from the order of the board was still pending undetermined on the docket of the Tipton Circuit Court.
Aside from .the general rule which governs appeals to the circuit court from boards of commissioners, justices, of the peace, and other inferior courts or tribunals, such would necessarily be the effect of §7864 Bums 1901, §5777 R. S. 1881 and Horner 1897, which pertains to appeals from boards of commissioners, and which has been in force since 1853. This section provides that every appeal from the board of commissioners to the circuit court “shall be docketed among the other cases pending therein, and the same shall be heard, tried and determined as an original cause.” Hnder this provision of the law it has been universally held by this court that appeals from boards of commissioners stand for trial in the circuit court de novo and that such appeal suspends or vacates the order of the board and all proceedings in the matter. Hardy v. McKinney, 107 Ind. 364, and cases there cited.
The rule declared and enforced by this court under this section, long before the passage of the liquor law of 1875, had been held by this court to apply to appeals taken by
It is true that the liquor law of 1859 had been repealed prior to the enactment of the act of 1875, by an act of the legislature known as the Baxter law, passed in 1873. If we eliminate the proviso in controversy from the act of 1875, the latter in its general provisions and scope will be found, in the main, to be similar to the act of March 5, 1859. 1 Gavin & Hord, p. 614. We may then reasonably presume that the legislature which enacted the law of 1875 recognized what the effect of an appeal to the circuit court from an order of the board of commissioners granting a license, taken by persons wk> might remonstrate under the authority of that statute, would be upon the right of the licensee to sell under his license during the pendency of such appeal, when tested by the rule declared by this court in respect to the effect of such appeal under the former law; hence the reason or cause which prompted the legislature to modify or change the rule, by virtue of the proviso' in dispute, must be evident. The question presented then is, to what extent did the legislature intend to' modify the operation of the rule which had been previously held to' be applicable to an appeal by remonstrators from an order of the board granting a license to a person to sell intoxicating liquors? In construing a statute, or any part thereof, courts are not authorized to disregard the plain language employed by the lawmakers in its enactment. It is the duty of the court to accept the act as written, and if valid to enforce it as enacted. And where the law is clear upon its face, and when standing alone is fairly susceptible of but one construction,
The language of the proviso in question is: “That no appeal taken by any person from the order of the board granting such license shall operate to estop the person receiving such license from selling intoxicating liquor, thereunder, until the close of the next term of the court in which such appeal is pending and at which such cause might be lawfully tried; and he shall not be liable as a seller without license for sales made during the pendency of such appeal, but he shall be liable for the violation of any of the provisions of this act during such time, the same as if regularly licensed.” (Our italics.) A reading of this particular provision demonstrates the fact that it may be said to be uncertain or ambiguous, at least in two respects: (1) As to what is meant or intended by the words “the term of court * * * at which such cause might be lawfully tried”; (2) as to the meaning of the clause “he shall not be liable as a seller without license for sales made during the pendency of such appeal.” Where a statute is of a doubtful or uncertain meaning, and susceptible, upon its face, of two constructions, courts, in order to discover the true legislative intent and purpose, may refer to prior or contemporaneous acts. They may inquire in respect to the reasons which prompted the legislature in the enactment of the law, and also may consider the mischief, if any, intended to be remedied, and may consider the situation-and condition of affairs existing at the time of the passage of the law, and all acts in pari materia passed either before or after the statute in question, whether repealed or unrepealed. All may be referred to and considered in order to discern what the legislature intended by the use in the statute of some particular term or
At and prior to the passage of the act of 1875, it will be found that all appeals from the order of the board of commissioners were controlled by §§7859, 7860 Burns 1901, §§5772, 5773 R. S. 1881 and Horner 1897. Appeals from an order of the board of commissioners, either granting or refusing to grant a license to sell intoxicating liquors, were held to be controlled by these particular sections. Wright v. Harris, 29 Ind. 438; Blair v. Kilpatrick, 40 Ind. 312.
Section 5773, R. S. 1881, provides that the appeal shall be taken within thirty days from the time the decision of the board was rendered, by filing an appeal bond, etc. Section 5775 R. S. 1881 provides that if the appeal is taken in vacation, a summons sued out of the clerk’s office of the court to which the appeal is taken shall be served on tire appellee requiring him to appear in court and answer said appeal. Section, 5776 R. S. 1881 provides that “If such appeal shall Be filed, and such summons, when necessary, served ten days before the first day of the court next after such appeal, such cause shall stand for trial at such term; otherwise it shall be continued until the next term of the court.” Consequently as the law relating to appeals from boards of commissioners stood at the time of the enactment of the license act of 1875, an appeal from the board of commissioners to the circuit coxirt might be taken át any time within thirty days, by either party to the proceedings if aggrieved by the board’s decision. If a transcript of the proceedings before
It is finally insisted that the legislature by the latter part of the proviso, namely, “he shall not be liable as a seller without license for sales made during the pendency of such appeal, but he shall be liable for the violations of any of the provisions of this act during such time, the same as if regularly licensed”, meant and intended that the licensee should be protected by the license granted to him by the board, for all sales made thereunder, during the year after the issuing of such license, regardless of the fact, of the pendency of the appeal. We can not sanction this contention for to do so would virtually impute absurdity to the action of the legislature. To hold that that body had first limited the time during which the operation of the board’s order and the right of the licensee, under the license granted, should not be suspended or vacated by the appeal, and then in the next breath it in effect declared that the appeal in no wise should operate to suspend his right to sell under such license, would certainly render the statute absurd and contradictory. Such a construction a court will not adopt. Mayor v. Weems, 5 Ind. 547; Storms v. Stevens, 104 Ind. 46; Stout v. Board, etc., 107 Ind. 343.
What the legislature intended by the language in question was to emphasize its will as declared in the preceding part of the proviso, namely, that the appeal should not be held to estop the licensee in the exercise of his rights under the license, until the end of the time designated. The phrase “he shall not be liable for sales made during the pendency of such appeal”, under the circumstances, was intended to refer to its pendency during the particular limit which the licensee was authorized to exercise his right under his license. This limit of time begins to run from the time the license is granted by the board and terminates at the close
The proviso upon its face certainly discloses, that it was not the purpose of the legislature entirely to abrogate the rule affirmed by this court, to the effect that an appeal from the decision of the board of commissioners granting a license operated to vacate or suspend all rights of the applicant thereunder. The legislative purpose was. only to modify such rule to the extent as hereinafter stated. An act of the legislature, approved March 9, 1889 (Acts 1889, p. 288), §5315a Horner 1897, provides that, “Whenever an applicant for, or remonstrant against, the granting of license to sell at retail spirituous, vinous or malt liquors, shall feel aggrieved by the decision of the board of county commissioners in granting or refusing such license, such applicant or remonstrant may appeal from said decision to the circuit court of the county, at any time within ten days thereafter, upon the execution of an undertaking, with sufficient surety, to pay all costs that may be adjudged against such person or persons, upon the final decision of said cause. Such undertaking shall be subject to the approval of the county auditor; and no appeal shall be granted unless said undertaking be filed within the time allowed herein for such appeal.” Another act by the same legislature, approved also on March 9, 1889 (Acts 1889, p. 255), §525 Bums 1901, provides as follows: “That all proceedings and all actions, civil or criminal, taken or removed by appeal, change of venue, or in any other manner to any circuit, criminal or superior court, shall, if the papers or transcript in said proceedings or action are filed in vacation in the
Under the provisions of the act first above mentioned, the right to appeal to the circuit court by a remonstrator from an order of the board granting a license to sell intoxicating liquors is expressly granted, and the time for taking such appeal is reduced from thirty to ten days. This act may be considered as supplemental to and as forming a part of our present law pertaining to' licensing the sale of intoxicating liquors. The latter act fixes the time when all cases or proceedings either civil or criminal removed by appeal to the circuit or criminal court shall stand for issue and trial. Such appealed cause under this act stands for issue and trial, (1) at the ensuing term of court when the transcript shall have been filed in vacation in the office of the clerk of the court at any time previous to the commencement of such term; (2) after the expiration of ten days from the date of filing such transcript when the same is filed in term time. This act repeals, by implication, §§5775, 5776 R. S. 1881 and Homer 1897, heretofore referred to, and which, as previously stated, formerly controlled appeals from boards of commissioners to the circuit court. Since the enactment' of the latter act of 1889, the summons required to be issued and served on the appellee as provided by the above sections is no' longer required. Consequently as the law now stands, if a remonstrator appeals from the order of the board granting a license, he must take his appeal within ten days from the time the decision is rendered, and such appeal may be lawfully tried by the court to which it is appealed at the term next following the filing of the transcript with the clerk in vacation. Or if the transcript is filed in term time
If he takes out his license before the expiration of the appeal limit, he receives it subject to the rights of the remonstrators to appeal within such limit and also subject to the effects of such appeal.