Cain v. Allen

• Decision Date: 22 November 1906
• Docket Number: No. 20,760.,20,760.
• Parties: CAIN v. ALLEN et al.
• Court: Indiana Supreme Court

168 Ind. 8

79 N.E. 201

CAIN

v.ALLEN et al.

No. 20,760.

Supreme Court of Indiana.

REGADANZ

v.HAINES et al.

No. 20,782.

JONES

v.ALEXANDER et al.

No. 20,812.

LANHAM

v.WOODS et al.

No. 20,820.

KUNKLE

v.ABELL et al.

No. 20,891.^*

Nov. 22, 1906.

Appeal from Circuit Court, Owen County; Rufus H. East, Special Judge.

Application of Oliver P. Cain for a liquor license. Motion by J. L. Allen and others to dismiss his application granted, and he appeals. Application of one Regadanz for a liquor license. Motion of one Haines and others to dismiss his application granted, and he appeals. Application of one Jones for a liquor license. Motion by one Alexander and others to dismiss the same granted, and be appeals. Application of one Lanham for a liquor license. Motion of one Woods and others to dismiss the same granted, and he appeals. Application of one Kunkle for a liquor license. Motion of one Abell and others to dismiss the same granted, and he appeals. The cases were consolidated. Judgments reversed and remanded, with instructions to reinstate.J. A. Miller and N. A. Whitaker, for appellants. Homer Elliott and Willis Hickam, for appellees.

JORDAN, C. J.

This cause (Cain v. Allen et al.) and the other causes hereinafter mentioned were consolidated by order of court, and were all heard and considered together upon the argument of the respective counsel appearing for the several parties. Consequently the decision in this appeal will virtually rule and control in the determination of the other appeals. The causes consolidated are the following: No. 20,782, Regadanz v. Haines et al.; No. 20,812, Jones v. Alexander et al.; No. 20,820, Lanham v. Woods et al.; No. 20,891, Kunkle v. Abell et al. In this case and in each of the others the question in regard to the constitutional validity and the construction of section 9 of an act of the Legislature approved March 11, 1895 (Acts 1895, p. 251, c. 127), commonly known as the “Nicholson Law,” as said section 9 is amended by an act approved February 15, 1905 (Acts 1905, p. 7, c. 6) is presented for our determination. The facts in this appeal are as follows:

Three days before the beginning of the regular June session, 1905, of the board of commissioners of the county of Owen, state of Indiana, what may be termed a general or “blanket” remonstrance against the granting of license to retail intoxicating liquors in Washington township, Owen county, was filed by appellees herein with the auditor of the county. The remonstrance was addressed to the board of commissioners of Owen county, and, omitting the formal parts thereof and the names of the remonstrators, reads as follows: “We, the undersigned, legal voters in the township of Washington, in the county and state aforesaid, do hereby respectfully represent that we are opposed to the traffic in intoxicating liquors, and we hereby object to the granting of a license to any person for the sale of intoxicating liquors in said township.” This remonstrance was filed under and in pursuance of said section 9 as the same is amended. The names of appellees appear to have been subscribed thereto by one Albert B. Milligan, under and through a power of attorney, duly executed to him and one William M. Christ by each of the appellees herein. The appointment of Milligan and Christ and the authority conferred upon them to act for appellees in signing their names to a general remonstrance and filing the same was not conferred by a single instrument or document signed jointly by all of appellees, but was through and under several separate instruments, executed separately by each of the appellees. Each of these instruments so executed, omitting the formal parts, is as follows: “I, the undersigned, a resident and qualified voter in Washington township, in Owen county, state of Indiana, do hereby authorize, empower, and request William M. Christ and Albert B. Milligan, or either of them, to sign my name to any and all remonstrances against the granting of license to any and all applicants for the sale of intoxicating liquors in said township, and to sign my name to any and all remonstrance or remonstrances against the granting of license to any person for the sale of intoxicating liquors in said township, and also to properly file said remonstrance or remonstrances with the auditor of said county, and to present the same to the board of commissioners, and do hereby deliver this appointment to them for the purpose herein stated”-signed, witnessed, etc.

No person appears to have given notice of his intention to apply for a license at said June session, 1905, of the board of commissioners to retail intoxicating liquors in said Washington township, and no application was filed at said session whereby such license was sought to be secured. At the said June session of the board of commissioners appellees herein appeared by their attorney and presented to the board the remonstrance which had been filed with the county auditor as heretofore stated. It was taken up and considered, and thereupon the board made and entered the following finding and order: “In the Matter of a Remonstrance against the Selling of Intoxicating Liquors in Washington Township. Commissioners Court, June Term, 1905. *** And now the board, being fully advised in the premises and the evidence being heard, finds that the above remonstrance was filed with the auditor of Owen county three days before the regular June session, 1905, being the present session, of the board of commissioners of this county, to wit, on Friday, June 2, 1905; and it further appearing by the evidence, to the satisfaction of the court, that said remonstrance is signed by a majority of the legal voters of said Washington township, in said Owen county, on said date, it is therefore ordered and adjudged that it shall be unlawful for and this board of commissioners will not grant a license to any person for the sale of spirituous, vinous, malt, or other intoxicating liquors under the laws of the state of Indiana, with the privilege of allowing the same to be drunk on the premises where sold, within the limits of said Washington township, during a period of two years from the date of filing such remonstrance, to wit, from the 2d day of June, 1905.” It appears that appellant Cain was not in any manner a party to the proceedings at said June session, and no notice was given to him that the board was going to consider and take action upon the remonstrance at said session.

At the September session, 1905, of the board of commissioners, appellant, having given the notice required by section 7278, Burns' Ann. St. 1901, the same being section 3 of an act of the Legislature to regulate and license the sale of intoxicating liquors, approved March 17, 1875-to which we will refer hereafter as “the act of 1875” (Acts Sp. Sess. 1875, p. 55, c. 13)-applied to the board, under the provisions of said statute, for a license to be granted to him to retail intoxicating liquors in said Washington township. On motion of the remonstrators (appellees herein) the board dismissed his application and denied him the right to a hearing thereon, and also the right to be heard as to whether the remonstrance in question at the time of filing thereof had been signed by a majority of the legal voters of the township. From this decision he appealed to the Owen circuit court, wherein appellees renewed their motion to dismiss his application upon substantially the following grounds, namely: That the record of the board of commissioners discloses that three days before the June session, 1905, of the board, a majority of all of the legal voters of Washington township, in said county, had filed a remonstrance in the office of the county auditor, remonstrating against the granting of a liquor license to any person whatever, which remonstrance had ever since remained on file in the auditor's office. That the board at that session had duly inquired into the matters and things alleged in said remonstrance, and had found that it contained a majority of all the voters of the township, and thereupon entered of record its finding of that fact, and also an order upon the remonstrance declaring that no liquor license should be granted to any applicant to sell intoxicating liquors in said township during the period of two years after the date of filing the remonstrance. “That said order of the board still stands in full force and effect, unappealed from, a copy of which is a part of the papers duly certified by the auditor of said county in this case.”

The trial court appears to have denied appellant the right to a hearing upon his application, and also the right to controvert the question as to whether the remonstrance in controversy had been, at the time it was filed, signed by a majority of the legal voters of Washington township, and sustained the motion of appellees, and dismissed the application, and rendered judgment against appellant for costs. From this judgment he appeals, and assigns errors, calling in question the ruling of the court in dismissing his application and denying him the right to a hearing in this proceeding. Counsel for appellees seek to sustain the decision of the court in dismissing appellant's application and rendering judgment against him on the following grounds: First, they argue that a remonstrance under section 9 as amended is an ex parte proceeding, that it raises no issue between the remonstrators and an applicant for license, and that it concerns voters only; second, that the board of commissioners, at the June session, following the filing of the remonstrance, had the right and power to pass upon its sufficiency, and, upon finding it to be sufficient, to thereupon order and adjudge that it be unlawful to grant a license in said township to any applicant for a period of two years from the date of the filing of the remonstrance, and that, inasmuch as no appeal was taken by appellant from this order of the board of commissioners he...