City of Jeffersonville v. Nagle

• Citation: 191 Ind. 70,132 N.E. 4
• Decision Date: 29 June 1921
• Docket Number: No. 23616.,23616.
• Court: Supreme Court of Indiana
• Parties: CITY OF JEFFERSONVILLE et al. v. NAGLE et al.

191 Ind. 70

132 N.E. 4

CITY OF JEFFERSONVILLE et al.

v.NAGLE et al.

No. 23616.

Supreme Court of Indiana.

June 29, 1921.

Appeal from Circuit Court, Clark County; James W. Fortune, Judge.

Suit by John Nagle and others against the City of Jeffersonville and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Wilmer T. Fox, of Jeffersonville, for appellants.

J. H. Warder and H. F. Dilger, both of Jeffersonville, for appellees.

EWBANK, J.

The appellees asked and obtained a decree enjoining the city of Jeffersonville and certain of its officers, who are its coappellants, from enforcing as against them a city ordinance which forbade, under penalty of a fine for each day of such operation, the keeping or operation of an inn, tavern, hotel, restaurant, or “other place for public entertainment” in said city without a license, and fixed the license fee at $50 per year, and further declared:

“That all places where ice cream, soda water, mineral water, lemonade, Coca-Cola, pop, ginger ale, soft drinks or any form of liquid refreshment are sold or permitted to be consumedare places of public entertainment within the meaning of this ordinance.”

The complaint alleged that each of the appellees had an established business of selling pop and other soft drinks, and that appellants threatened them with “multifarious prosecutions” under the ordinance for failing to pay the license fee. A demurrer to the complaint for alleged want of facts was overruled, and appellants excepted.

The evidence consisted of certain facts admitted by appellants to be true as follows: That each of plaintiffs owned and kept a place in said city wherein pop and other soft drinks were sold, and none of them had a city license under the said ordinance; that appellants other than the city held official positions as stated, and that each of the appellants intended to and would, unless enjoined, bring prosecutions against the appellees for operating said places without such licenses; that the ordinance, as above stated, was regularly passed by the common council, and approved and signed by the mayor, and was duly published; and that the business of each appellee did not consist exclusively of selling pop and other soft drinks, but selling such articles was conducted by each along with some other form of mercantile enterprise.

The trial court found for the appellees and gave judgment enjoining the appellants from prosecuting them for failing to pay license fees or to take out licenses under the ordinance. The motion of appellants for a new trial, for the alleged reasons that the decision was not sustained by sufficient evidence and was contrary to law, was overruled, and appellants excepted, and duly filed their bill of exceptions and perfected an appeal. The errors assigned and relied on are that the trial court erred in overruling the demurrer to the complaint and in overruling the motion for a new trial.

The briefs of counsel present for decision the single question whether or not the enactment of the ordinance under consideration was within the statutory powers of the common council, so far as it purported to apply to places where pop and soft drinks were sold.

The statute conferring and defining the powers of city councils expressly provides that the common council of a city shall have power by ordinance-

“to license, tax and regulate or prohibit all inns, taverns, hotels, restaurants or other places used or kept for public entertainment,” and “to carry out the objects of the corporation, not hereinbefore particularly specified.” Burns' 1914, § 8655, subds. 39, 53; Acts 1905, c. 129, pp. 252, 256.

[1] A general rule for the construction of statutes is that, where words of general meaning, such as “other places used or kept for public entertainment,” follow and refer back to specific words which enumerate several objects of one class, the general words will be understood to cover only things of the kind or class to which those things belong that are specifically mentioned, unless a contrary intention is clearly shown by the statute. State v. Wiggam, 187 Ind. 159, 162, 118 N. E. 684;Wiggins v. State, 172 Ind. 78, 80, 87 N. E. 718.

[2][3] But counsel for appellant insist that places for the sale of “soft drinks” are used and kept “for public entertainment” in the same sense as a restaurant, that at a restaurant a customer obtains food and drink, with facilities for eating and drinking what he purchases, and that the same is true of shops that dispense pop and other soft drinks.

But it is obvious that the Legislature did not understand the words “other places used or kept for public entertainment” to embrace all places where food and drink were sold to be consumed on the premises, for the very next subdivision of the same section conferred authority by ordinance “to license, tax, regulate and restrain all *** places where intoxicating liquors are kept for sale, to be...