Cox v. Timm
| Decision Date | 26 May 1914 |
| Docket Number | 22,239 |
| Citation | 105 N.E. 479,182 Ind. 7 |
| Parties | Cox et al. v. Timm |
| Court | Indiana Supreme Court |
From Pulaski Circuit Court; Francis J. Vurpillat, Judge.
Remonstrance by Ray Cox and others against the granting of a liquor license to Fred Timm. From a judgment of the circuit court granting the license, the remonstrants appeal.
Affirmed.
Ralph E. Minton, Caleb W. Barker and John M. Spangler, for appellants.
Burson & Burson, for appellee.
A proviso to § 4 of the Proctor liquor law stipulates "That the number of retail licenses which may be granted in any city or township under this act shall not be more than one for each five hundred inhabitants thereof which number may be further limited by the board of county commissioners of any county to any number not less than one to each one thousand inhabitants of such city or township." The same section provides that any limitation by the board shall be made at its first session after the act takes effect. Acts 1911 p. 244, § 8323g Burns 1914. The board of commissioners of Pulaski County duly exercised this delegated authority and fixed 1,000 inhabitants as the measure of the number of retail licenses for any city or township of that county.
Appellee applied to the board of commissioners of Pulaski County at its April term, 1912, for a license to sell intoxicating liquors at retail in Cass Township of the county. This township at that time had more than 500 and less than 1,000 inhabitants. Appellants appeared and remonstrated against the grant of the license to appellee by the board on the ground that, as the population of the township was under 1,000 inhabitants, no license to retail in that township could lawfully be granted. In such township the sale of liquor at retail had not been excluded by local option election (Acts 1911 p. 363, § 8316 Burns 1914) nor by general remonstrance under the provisions of the Moore Remonstrance Law. Acts 1905 p. 7, § 8332 Burns 1914. The board sustained appellants' remonstrance and rejected appellee's application for license. On the trial of his appeal to the circuit court an opposite result was reached and from a judgment granting the license this appeal comes. The error assigned is that the court erred in overruling appellants' motion for a new trial. The only cause assigned for a new trial which is properly presented and relied on for reversal is that the decision of the court is contrary to law; and this involves the one question whether the legislature, by the provision of the act of 1911, above quoted, intended to prohibit entirely the retail sale of intoxicating liquors in cities or townships whose total population did not reach the numerical standard fixed or, whether its intention was to permit one license to be granted in such cities or townships and no more.
What the measure of the number of licenses authorized by the act should be held to be when the question presented is one of plural licenses in a city or township is not a question of difficulty and has been determined by this court. In such case the words of the proviso may be given the ordinary meaning which they may fairly be said to convey without infringing on the very manifest intent of the legislature which is to regulate and restrict the sale of intoxicating liquor. And that is, that the unit of number for which a license may be granted, in a city or township where the number of inhabitants clearly authorizes one license and where it is claimed the number is sufficient to authorize more than one, must be a full unit for each of the plural licenses. State, ex rel. v. Board, etc. (1913), 179 Ind. 513, 101 N.E. 813. The effect of the words of the proviso in such a case does not result in positive prohibition of the granting of any license at all in any city or township, but is merely a limitation on the number of licenses which may be granted therein.
But to say that the words of the proviso forbid the granting of a license in townships which contain less than 1,000 inhabitants necessarily leads to a positive legislative prohibition of the licensing and sale of intoxicating liquors in such townships. The inquiry then leads to the ascertainment whether such a construction is in harmony with the intention of the legislature, for always in the construction of a statute the intent of the lawmaking body must be sought and when discovered, it must control even to the modification of some particular words or parts of a statute. The injunction of the statute and canons of construction that particular words and phrases used in a statute are to be taken in their plain, ordinary sense are effective only when there is no obviously repugnant intent on the part of the legislature. This contrary or inharmonious intent may be sought in the context of the same statute, in the general purpose of the whole act, or in other statutes relating to the same subject.
Section 240 Burns 1914, § 240 R. S. 1881; Shea v. City of Muncie (1897), 148 Ind. 14, 46 N.E. 138; Greenbush Cemetery Assn. v. Vanatta (1912), 49 Ind.App. 192, 94 N.E. 899; Johnson v. City of Indianapolis (1910), 174 Ind. 691, 93 N.E. 17; Thorn v. Silver (1910), 174 Ind. 504, 89 N.E. 943, 92 N.E. 161; Princeton Coal, etc., Co. v. Lawrence (1911), 176 Ind. 469, 95 N.E. 423, 96 N.E. 387, and cases there cited. In the latter case it was said: "The rule is general that all consistent statutes that can stand together, as related to the same subject, shall be construed together and with reference to the whole system of which they form a part, and harmony and effect given to all, if this can consistently be done, so as to make the law consistent in all its parts and uniform in its application and results; and the intent, as collected from an examination of the whole, will prevail over the literal import of particular terms, and control the strict letter of such terms, when the latter would lead to injustice and contradictions." And this rule applies with added force in the case of statutes passed at the same legislative session, for in such case it is to be presumed that they are equally in the minds of the legislators and, being related to the same subject-matter, they are to be impressed with a harmonious construction so that, if possible, all may stand and be fully effective. Princeton Coal, etc., Co. v. Lawrence, supra, and cases there cited. These rules must be held to apply with at least full force when the consideration is given to the terms of a proviso in a statute. That part of the Proctor Law particularly under consideration is in form and substance a typical example of a proviso and, as such, is to be strictly construed and limited to the objects fairly within its terms. The question to be answered, therefore, is whether, in view of the other provisions of the act and of other laws relating to the same subject-matter, the positive prohibition of the sale of intoxicating liquors, by the legislature, or, by the board of commissioners exercising a delegated authority, in townships of less than 500 or 1,000 inhabitants, as the case may be, is fairly within the terms of the proviso when viewed in the light of the legislative intent.
The fact that the public policy of the State with reference to the liquor traffic, as declared by the legislature almost uniformly during the history of the State, has been to regulate and restrict by license and other laws, and not to prohibit the sale, is not without significance in the construction of the provisions now under examination. McPherson v. State (1910), 174 Ind. 60, 90 N.E. 610, 31 L. R. A. (N. S.) 188. Aside from the effect of the isolated words of the proviso in question the general scope and purpose of the whole Proctor Law are obviously of that character. There is not elsewhere in the act any indication of any purpose to establish prohibition of any sort limited in territory or otherwise, but a pervading intention to authorize licenses coupled with stringent regulation generally throughout the State. The construction of the proviso contended for by appellants would put it in discord with the purpose to be gathered from the purview of the act. And there is more specific antagonism between this construction of the proviso and other parts of § 4 supra, itself. In a later proviso in this same section it is declared that licenses granted under the prior law and in force at the time of the passage of the act shall not be affected by the provisions of the act but shall remain in force and be subject to renewal from year to year. The preceding law under which such existing licenses were issued contained no legislative fiat declaring that licenses should not be granted in townships containing less than 500 or delegating authority to boards of county commissioners to double the unit of numbers. And if in such townships licenses had been granted, the legislature thus provided for their preservation and renewal from year to year indefinitely. From this it appears that the...
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