Cain v. Allen

• Decision Date: 18 January 1907
• Docket Number: 20,760
• Citation: 79 N.E. 896,68 Ind. 27
• Parties: Cain v. Allen et al
• Court: Indiana Supreme Court

79 N.E. 896

68 Ind. 27

Cain v. Allen et al

No. 20,760

Supreme Court of Indiana

January 18, 1907

Original Opinion of November 22, 1906, Reported at: 168 Ind 8.

OPINION

Jordan, J.

Appellant 's counsel have filed in this case a petition for a rehearing, upon the ground that the court erred at the former hearing in holding that a remonstrator, under the law, could not withdraw from the remonstrance after the beginning of the three-day period prior to the regular session of the board of commissioners at which it was filed. It is insisted that the provision in section nine as amended (§ 7283i Burns 1905, Acts 1905, p. 7), providing for a general or "blanket" remonstrance against all applicants should not be so construed. The legislature, in the enactment of this provision of the statute, did not intend or contemplate that any such privilege should be accorded to a remonstrator and no such construction or interpretation can in reason be given to the provision of the law in question. Counsel argue that the decision of the court in this appeal, when construed in the light of the holding in the cases of State v. Gerhardt (1896), 145 Ind. 439, 33 L. R. A. 313, 44 N.E. 469; Sutherland v. McKinney (1897), 146 Ind. 611, 45 N.E. 1048, and Conwell v. Overmeyer (1896), 145 Ind. 698, 44 N.E. 548, and other cases which they cite, all of which follow the decision in the case of State v. Gerhardt, supra, upon the point in question, is susceptible of but one construction, which is to the effect that withdrawals under the Moore amendatory law are to be considered effective if filed at any time up to the three-day period prior to the beginning of the regular session of the board of commissioners at which the first application for a license to sell intoxicating liquors is made. Neither the case of State v. Gerhardt nor the other cases above cited can be said to support the view taken or advanced by counsel. What was held in these cases in construing section nine, as it formerly existed, was that a remonstrator had no right to withdraw his name after the time prescribed by the statute for filing a remonstrance, and this is our holding in the case at bar.

It must be remembered that section nine of the Nicholson law, as originally enacted, contained no provision authorizing the filing of a general or "blanket" remonstrance, as it does since it has been amended. In State v Gerhardt, supra, the question was propounded on page 473: "Does the remonstrance provided in section nine apply to the particular applicant whose application is then pending and against which it is addressed?" In answer to this interrogation the court said: "We are of the opinion that the remonstrance, provided for by section nine, has application only to some particular applicant, and does not contemplate a general remonstrance, but one directed against each individual who desires to secure license." Under this construction or interpretation the remonstrance was a special one to be directed against each person who applied for a license. The time...