Abbott v. Inman

• Decision Date: 23 November 1904
• Docket Number: No. 5,025.,5,025.
• Parties: ABBOTT et al. v. INMAN.
• Court: Indiana Appellate Court

35 Ind.App. 262

72 N.E. 284

ABBOTT et al.

v.INMAN.

No. 5,025.^*

Appellate Court of Indiana, Division No. 2.

Nov. 23, 1904.

Appeal from Circuit Court, Putnam County; Geo. A. Knight, Special Judge.

William T. Inman filed an application for a license to sell intoxicating liquors, to which John B. Abbott and others filed a remonstrance; and, from a judgment approving the action of the board of county commissioners in issuing a license, remonstrants appeal. Reversed.Moore Bros., Lyon & Peck, and S. A. Hays, for appellants. C. C. Matson and Woolen & Woolen, for appellee.

COMSTOCK, J.

The appellee, William T. Inman, on March 2, 1903, filed with the board of commissioners of Putnam county, Ind., his application for a license to sell intoxicating liquors in the Third Ward of the city of Greencastle, Ind., at retail, under the act of March 11, 1895 (Acts 1895, p. 248; section 7283a-7283k, Burns' Ann. St. 1901). Notice was given as required by law, and the premises where sales were to be made were described. At the proper time J. B. Abbott and 198 other voters of the Third Ward of said city filed a remonstrance against granting said license. Said applicant in due time filed with the auditor of said county a paper containing the names of 31 persons, purporting to be withdrawals from said remonstrance. The case came on for hearing before said board on application, remonstrance, and withdrawals. After the evidence was submitted, the board found that said remonstrance was not signed by a majority of the legal voters of said Third Ward, as the law requires, and entered an order granting said applicant a license, as prayed for in his petition. From this order and finding the remonstrants appealed to the circuit court. When the case was called in the circuit court, said remonstrants, by their attorneys, filed a motion for a struck jury. To this motion the objection of the attorneys of the applicant was sustained, to which ruling the remonstrants excepted. Upon application of remonstrants, a change of venue was granted from the regular judge, and the Honorable George Knight was appointed and qualified to try said cause. Upon request of the remonstrants, the court made a special finding of facts, stated conclusions of law thereon, and rendered judgment in favor of appellee. The special findings are, in substance, as follows: The city of Greencastle was prior to May 13, 1902, a municipal corporation, and divided into three wards. The Third Ward of said city included all the territory lying south of Hanna street therein. Said ward was at said time divided into two voting precincts-the East and the West-and an election for mayor was held in said city on May 6, 1902. At said election the aggregate vote cast in said ward for mayor was 320-150 being cast in the East Precinct and 170 in the West Precinct-and that the total number of persons who voted at said election in said West Precinct was 176. On the 13th day of May, 1902, the common council of said city redistricted said ward, for ward purposes, into four wards, and took off of the original Third Ward, as it existed at the time of said election, that part of the West Precinct of said Third Ward which lies south of Hanna street, north of Olive street, and west of College avenue, and put it into said new Fourth Ward, and said original Third Ward was not otherwise changed thereby, but included all the territory lying south of Hanna street, except said four blocks. At the March session, 1903, of the board of commissioners of said county, appellee applied for license to sell intoxicating liquors in the Third Ward of said city; having previously given notice of his intention to file such application. On February 27th, three days before the meeting of said board at its March session, a remonstrance in writing was filed with the auditor of said county, signed by the plaintiff John B. Abbott and 198 other voters of the Third Ward of said city, remonstrating against granting a license to said applicant for the sale of intoxicating liquors. Of the 198 persons whose names were attached to said remonstrance, 22 had revoked said power by withdrawing their names therefrom before the filing of said remonstrance, by written withdrawal filed with the auditor the day before the remonstrance was filed. Of the remaining 177 names upon said remonstrance, 10 were the names of persons who were not legal voters in the Third Ward of said city at the time said remonstrance was signed. Of the remaining 167 persons whose names were signed to said remonstrance, 14 resided at the time of the signing and filing thereof in the territory lying south of Hanna street, west of College avenue, and north of Olive street, and were not residents and legal voters of said Third Ward of said city, as the same was bounded at the time of the filing of the remonstrance. The remonstrance was duly signed by 153 legal voters of said Third Ward of said city who resided in and were legal voters in that territory included in said Third Ward of said city as it existed and was bounded at the time of filing by defendant of his application, and at the time of filing said remonstrance. Of the 176 voters who voted in the West Precinct of said...