Behler v. Ackley

• Decision Date: 23 November 1909
• Docket Number: 21,334
• Citation: 89 N.E. 877,173 Ind. 173
• Parties: Behler v. Ackley et al
• Court: Indiana Supreme Court

89 N.E. 877

173 Ind. 173

Behler v. Ackley et al

No. 21,334

Supreme Court of Indiana

November 23, 1909

From Dekalb Circuit Court; John W. Hanan, Special Judge.

Application for liquor license by Peter F. Behler, against which Chauncey T. Ackley and others remonstrate. From a judgment for remonstrators, applicant appeals.

Affirmed.

W. W Sharpless and Leonard & Townsend, for appellant.

J. H Rose and Mountz & Brinkerhoff, for appellees.

OPINION

Hadley, C. J.

In March, 1908, appellant was, by the board of commissioners, and later by the circuit court on appeal, refused a license to sell intoxicating liquors at retail in the first ward of the city of Garrett.

It appears from the special finding of facts that at 11 o'clock p. m., on Thursday, January 30, 1908, an instrument in writing, signed by forty-one persons, was filed with the county auditor, giving notice to the board of commissioners that each of said signers desired to withdraw his name from any and all remonstrances that might be thereafter filed against the granting of a license to sell liquors in said first ward of Garrett. The name of each of said forty-one persons had been signed to the withdrawal paper by duly appointed attorneys, whose power was full and explicit to execute a withdrawal from any remonstrance the principal had signed, and to be effective on the day of actual signing. At the time said withdrawal paper was filed, and at the time of the execution to the attorneys of the power to sign the withdrawals, thirty-four of the persons whose names were attached to the withdrawal paper had not signed any remonstrance, nor executed any power of attorney to another authorizing their names to be placed upon any remonstrance. In addition to said thirty-four persons, McDonald and Sweeney, two others of said forty-one persons, on January 30, after they had given powers to an attorney to execute withdrawals on their behalf, executed to another attorney powers to sign their names to any and all remonstrances against the granting of a license to sell in said ward. On the next day, to wit, January 31, 1908, there was filed in the auditor's office a blanket remonstrance against the granting of a license to any and all persons to sell in said ward, which remonstrance was signed by 143 persons, purporting to be legal voters of the ward, including the thirty-four pretended withdrawers, and McDonald and Sweeney. At the time of filing the remonstrance, January 31, there were 253 legal voters in said ward, as shown by the last preceding election, of which number 127 constituted a majority. If the forty-one persons who filed withdrawals on Thursday, successfully withdrew from the remonstrance that was filed on Friday, the withdrawals reduced the number of signers of the remonstrance to 102, and when the thirty-six withdrawers came back and reexecuted the remonstrance on Friday, that increased the number of signers to 138. In February, 1908, appellant gave notice that at the following March term of the board of commissioners he would apply for a license, and on March 3 he did file and present his application, and also a verified plea that fourteen specified persons, whose names appeared on the January remonstrance, were not legal voters of the ward when said remonstrance was filed. Upon the hearing on said plea the court found that eight of the fourteen were not legal voters, and that one other person's name appeared twice on the remonstrance, thus reducing the number who had a right to sign the remonstrance to 129. Appellant, with his application, filed his further verified plea, challenging the right of all persons to sign the remonstrance on January 31, who had on the previous day executed withdrawals from all remonstrances.

After appellant had given notice in February that he would apply for a license at the March term, the remonstrance of January 31 was brought forward and renewed in identical language and names--the latter being subscribed by attorneys with renewed powers--except that it had attached to it the names of thirteen additional persons, making a total of 156, and the same was filed with the auditor on Friday, February 28, 1908.

To the second remonstrance appellant filed a sworn plea that seventeen of the signers were not legal voters of the ward, and also his plea questioning the right of any one to sign the remonstrance who had signed and filed with the auditor a withdrawal on January 30. On the day before the second remonstrance was filed with the auditor, a paper was filed in said office which purported to be a notice of withdrawal, from any and all remonstrances, by a large number of persons whose names appeared on the remonstrance of January 31, and also appeared on the pretended withdrawal paper filed January 30.

It thus appears that, notwithstanding the hysterical action of divers persons, the trial resulted in showing that 129 qualified persons signed the remonstrance of January 31, two more than a majority of the legal voters of the ward; and conceding, without considering, all that appellant claims in his answer, to wit, that seventeen of the signers of the remonstrance of February 28 were not legal voters of the ward, there remain 139 names on the remonstrance; and conceding further that four of the 139 had executed valid withdrawals and one other person's name was duplicated, we still have left to the remonstrance a clear majority.

These findings show that the jurisdiction of the board of commissioners was ousted by the remonstrance of January 31 for a period of two years, and the remonstrance of February 28 was wholly a matter of supererogation, except that if sufficient it would operate to extend the period of exclusion from that date. Whether it was, therefore, sufficient or insufficient as a remonstrance is worthy of no consideration.

The sufficient remonstrance of January 31 not only determined for two years the power of the commissioners to grant a license within the district, but it also fixed for a like period the status of all signers as that of remonstrators, and the effort made by some of those who signed the January remonstrance to become withdrawers by filing such declaration with the auditor on February 27 was wholly nugatory. Cain v. Allen (1907), 168 Ind. 8, 79 N.E. 201; Regadanz v. Haines (1907), 168 Ind. 140, 79 N.E. 1085.

Further, those who filed with the auditor, on the evening of January 30, withdrawals from all remonstrances, when they had in fact, neither in person nor by attorney, signed any remonstrance, did a foolish and frivolous thing. It is inconceivable how they could withdraw from a paper that they had not signed.

Those who had signed a paper intended as a remonstrance could withdraw therefrom on Thursday, January 30, and on Friday January 31, could reconsider, and by person or attorney reexecute the remonstrance at any time before the latter was filed in the auditor's office as such. State v....