State v. Vierling

33 Ind. 99 | Ind. | 1870

Gregory, C. J.

The appellee applied to the board of commissioners of Gibson county for a license to retail intoxicating liquors in a less quantity than a quart at a time, under the provisions of the act of March 5th, 1859, “to regulate and license the sale of intoxicating liquors.” 1 G. & H. 614, et seq.

A portion of the inhabitants of the township in which the business was to be conducted remonstrated against the granting of the license. A trial was had before the commissioners, which resulted iu favor of the applicant. The remonstrants appealed to the- Gibson Circuit Court. On the application of Vierling, with objection on the part of the remonstrants, the venue was changed to the Daviess- Circuit Court, in which a trial was had, resulting in favor of the applicant. A license was then issued to Vierling by the auditor of Gibson county, upon- the former complying with the law. The question involved in this case is, did this license protect the appellee against the penalty for retailing without a license?

It is claimed, that the change of venue was without authority of law^ that the Gibson Circuit Court was never ousted of jurisdiction; that the proceedings of the Daviess Circuit Coui’t were void; that the appeal suspended the operation of the order of the commissioners.

By the act of 1859, supra, it is provided (sec. 3), that “any white male inhabitant desiring to obtain license tosed intoxicating liquors, shad give notice to the citizens of the township in which he desires to sell, by publishing in a weekly newspaper in the county, a notice, stating in the notice the precise location of the premises in which he desires to sell, at least twenty days before the meeting of the board at which the applicant intends to apply for license; or in case there is no such; newspaper in such county, then by posting up written or printed notices in three of the most public places of the township in which he desires to sell, at least twenty days before the meeting of such board. And it shall be the-privilege of any inhabitant of said township to remonstrate in writing against the granting of such license to any applicant on account of immorality or other unfitness”’

This act is silent on the subject' of. appeal. This court, in 1860, in Drapert. v. The State, 14 Ind. 123, held, that the remonstrants could not appeal from an order of the board of county commissioners granting a license under this statute.

The legislature in 1861 passed.an act authorizing an appeal by either party aggrieved, and providing that “ either party to such appeal to the circuit court or court of common pleas, may demand and have a trial by jury in said circuit court -or court of -common pleas, and the -decision or verdict of -such jury shall bo final and conclusive, and without appeal therefrom.'” Acts -of 1861, p. 143. T-here is no provision in this act for an appeal bond.

In Wright, Auditor of Marion County, v. Harris, 29 Ind. 438, decided in 1868, there was an -attempt by the remonstrants to appeal without giving bond from an order granting a license. It was contended -in that case, that no bond was required by the act of 1861, supra, and that that was the only statute -authorizing appeals in such cases. But this court held otherwise, -overruling the case of Drapert v. The State; and in'doing so say, “But it is argued that the bond would-be an idle form,for the reason that the remonstrants appealing-are not liable for costs, if defeated on the appeal. And Drapert v. The State is cited in support of the proposition. If the question is, as was there -said, merely between tho applicant and the county, then it might possibly follow that not the remontrants appealing, but the county, must -pay costs when the appeal is unsuccessful. Indeed, we are advised that it is the practice in .some parts -of the State- to render judgment for costs in such-cases against the county, thus putting -it in the power of a single-citizen sometimes to prosecute a-hopeless and groundless appeal at the expense of the county treasury, and without any risk of himself. But regarding the .reasoning in Drapert v. The State, supra, as essentially unsound, as we do, -this absurd result is avoided.”

Molihan v. The State, 30 Ind. 266, holding that an appeal by remonstrants suspended the operation of the order of the board of county commissioners, went upon the ground that the applicant was secured in his right by the appeal bond .required bylaw. .Such bonds have two conditions, first, ■“for the due prosecution of the appeal;” second, “for the payment of all costs, if the same shall be. adjudged against isaidrqcpellanL” The breach of the .first, as well .as that .of the second, will give a right of action to- the injured party to- the extent of that injury.

M. W. Pearse, D. F. Embree, and D. E. Williamson, Attorney General, for the State. A. C. Donald and C. A. Buskirk for appellee.

These rulings go on the ground that there are in such-eases substantial rights involved. On the one hand,the applicant, if a white male inhabitant of the township -in-which the business- is- to be conducted, of good character and fit to be trusted therewith, upon complying with the-law, has-, the- right to> a license- to retail intoxicating liquors-in a less quantity than a quart. On the other hand,, the inhabitants of such township, have a right to. be protected from the evil consequences- of granting- this privilege to unfit persons.

Is, then, such a proceeding- a “ civil action,”" within the-meaning of the code 1 The code provides^, that “ there shall' be in this. State, hereafter, but one form of'action for the enforcement or-protection of private rights, and the redress of private wrongs, which- shall be' denominated! a civil action.” 2' G. & II. 33; 34, sec. 1.

We are clearly of the opinion, that the proceeding of theappellee, commenced before the-board of’ commissioners of Gibson county, and taken by- appeal to the Gibson Circuit Court, was a civil action, within the meaning of the code,, and that therefore a change of venue was; authorized by the law allowing such changes in civil actions. It-follows,, that the judgment of'the Daviess Circuit Court, under the-act of' 1861, was-, final, and that no appeal therefrom will lie to- this-, court.

The license.-was a full protection to- the appellee for the*, act charged in the information.

Judgment'affirmed, with costs.

Frazer, J.„ absent.