City of Montpelier v. Mills
| Decision Date | 25 June 1908 |
| Docket Number | No. 21,099.,21,099. |
| Citation | 85 N.E. 6,171 Ind. 175 |
| Parties | CITY OF MONTPELIER v. MILLS. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Blackford County; C. E. Sturgis, Judge.
Lee B. Mills was charged with selling liquor without a license, in violation of an ordinance of the city of Montpelier. From a judgment of acquittal in the circuit court on appeal from a conviction in a mayor's court, the city appeals. Reversed, with directions.
C. W. Kinnan and Eichhorn & Vaughn, for appellant. Joseph Burns, John P. Boyd, and John Burns, for appellee.
Appellee was convicted before the mayor of Montpelier of selling liquor without a license so to do, in violation of an ordinance of said city, and appealed to the court below, where upon a retrial he was acquitted and judgment for costs rendered in his favor.
It is alleged that the circuit court erred in overruling appellant's demurrer to the fourth, eighth, and ninth paragraphs of answer, and also erred in the conclusions of law stated upon the special finding of facts. The questions raised by appellant's demurrers to the fourth, eighth, and ninth paragraphs of answer are covered by its exception to the conclusions of law announced upon the special finding of facts, and the merits of the controversy can be best determined upon the special finding and conclusions of law stated.
The facts specially found by the court were, in substance, as follows:
That on July 17, 1906, the common council of the city of Montpelier passed an ordinance to regulate and license the sale of intoxicating liquors, the first section of which defined the business district and prohibited the sale of intoxicating liquors in the residence and suburban parts of the city. Sections 2 and 3 were as follows:
Section 4 provided that, upon the granting of such license, the applicant should pay to the city treasurer $250 as a fee therefor, and, on presenting a receipt for such payment, the city clerk should issue a license to be signed by the mayor and clerk authorizing the licensee to sell intoxicating liquors for one year at the place described in his application, and for issuing the license the clerk should charge and collect a fee of $1. Section 5 made it unlawful to permit any game of chance or skill in such place or in any room connected therewith, or to keep any wine-rooms, or to suffer any female of bad repute for virtue to loiter in any room where intoxicating liquors were sold, or in any room connected therewith. Section 6 was as follows: “Any person violating any of the provisions of this ordinance shall be fined in any sum not less than ten dollars ($10.00), nor more than fifty dollars ($50.00).” Section 7 provided that the ordinance should take effect from and after its passage and approval, and publication for two weeks in the Evening Herald. The ordinance was duly passed, approved by the mayor, and published as provided, and no part of the same had been repealed. That on February 9, 1907, appellee in the city of Montpelier sold one gill of whisky to Pat Whalen at and for the price of 10 cents, and suffered the same to be drank on the premises where sold, and at the time appellee had no license from the city of Montpelier to sell intoxicating liquor in less quantity than five gallons, to be drank on the premises where sold, as required by said ordinance. That appellee is a male inhabitant of said city, over 30 years of age, and not in the habit of becoming intoxicated, and for five years last past has been a bona fide resident and taxpayer of the city of Montpelier, in Blackford county, Ind. That on the 9th day of January, 1907, and more than 20 days before the regular February term of the board of commissioners of Blackford county, appellee caused notice to be published in the Hartford City Telegram, a weekly newspaper of general circulation printed and published in said county, of his intention to make application to said board of commissioners at the February term, 1907, for a license to sell intoxicating liquors in a less quantity than five gallons at a time, with the privilege of allowing the same to be drank on the premises where sold, and, combined therewith, he gave notice of his intention to make application to the common council of the city of Montpelier at its regular meeting to be held on the first Tuesday in February, 1907, for a license to sell such liquors in like quantities, and with the privilege of allowing the same to be drank on the premises, which were specifically described. That on the 4th day of February, 1907, pursuant to said notice, appellee appeared before the board of commissioners of Blackford county, submitted his proofs, and was duly granted a license for one year to sell intoxicating liquors in accordance with his application, and thereupon he paid the license fee and said license was regularly issued to him. That on the 31st of January, 1907, he filed his application for license with the city clerk of the city of Montpelier, accompanied by said notice and proof of publication of same, and on February 5, 1907, pursuant to said application and notice, appellee appeared before the common council of said city while in regular session and offered to introduce evidence of his qualifications for, and right to, a license to sell intoxicating liquors in accordance with his application, and further offered proof that the room and premises described were within the business district of the city of Montpelier, as defined by section 1 of the license ordinance, but the common council refused to permit appellee to submit his proofs and evidence, and refused to hear his said application. That on February 6, 1907, and before the commencement of this action, appellee tendered to the treasurer, clerk, and mayor of the city of Montpelier $250 in gold coin of the United States as a fee for a city license to retail intoxicating liquors in accordance with the terms of his application, and tendered the sum of $1 as a clerk's fee for the issuance of such license, and demanded that the same be issued to him, but the said treasurer, clerk, and mayor, each refused to accept the money so tendered or to give a receipt for the same, and refused to deliver or cause such license to be delivered to him; and thereupon he deposited the said money with the cashier of the First National Bank of Montpelier subject to the order of said city or its officials, and notified said treasurer of such deposit. That at the time he made such tender he exhibited a license duly issued to him by the auditor of Blackford county, and dated February 6, 1907, which license had been granted and issued upon his application and notice above mentioned. That the sale of intoxicating liquors above mentioned was made in the room and upon the premises described in appellee's said application, and in which he was authorized by the license issued by the county auditor to sell intoxicating liquors in less quantities than five gallons at a time, and suffer the same to be drank, and that said room as to its location, construction, and arrangement in all things complied with the requirements of said ordinance. Upon the facts so found, the court stated as conclusions of law that the city take nothing and appellee should recover his costs in the action, to which conclusions appellant at the time duly excepted.
The decision of the trial court apparently rests upon the assumption that a showing of appellee's qualifications and fitness to engage in the retail liquor business, a tendered compliance with all the terms and conditions of the license ordinance, and the arbitrary and wrongful refusal by the municipal officers to issue to him a license to retail intoxicating liquors excused the necessity of such license, and justified the sale made without license in violation of the city ordinance. This assumption was erroneous, and cannot be sustained. When the law requires a license as a condition precedent to engaging in a particular business, the authorities generally concur in holding a strict compliance with...
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