Cushman v. Hussey

• Citation: 111 N.E. 23,60 Ind.App. 464
• Decision Date: 11 January 1916
• Docket Number: No. 9365.,9365.
• Parties: CUSHMAN v. HUSSEY et al.
• Court: Court of Appeals of Indiana

60 Ind.App. 464

111 N.E. 23

CUSHMAN

v.HUSSEY et al.

No. 9365.

Appellate Court of Indiana, Division No. 2.

Jan. 11, 1916.

Appeal from Circuit Court, Gibson County; Simon L. Vandeveer, Judge.

Proceedings on a petition for an election on the question of prohibiting the sale of intoxicating liquors in the city of Princeton. On an appeal from the dismissal of the petition by the board of county commissioners, taken by Joseph Hussey and others, the circuit court ordered the holding of the election, and Robert A. Cushman appeals. On motion to dismiss appeal. Motion overruled.

*24T. Morton McDonald, of Princeton, for appellant. Henry Kister and Harvey Harmon, both of Princeton, for appellees.

MORAN, J.

Sardius Boger and 518 others, legal voters of the city of Princeton, Ind., filed a petition, as provided by statute, asking that an election be held to determine whether the sale of intoxicating liquors as a beverage should be prohibited within the city of Princeton. After the filing of a petition, appellant, designating himself as a remonstrator and taxpayer, addressed a written motion to the petition asking that the same be dismissed for the reason that there was on file in the auditor's office of Gibson county a remonstrance signed by more than a legal majority of the voters of the city of Princeton, remonstrating against the issuance of license to any person to sell intoxicating liquors as a beverage, which had been duly approved by the board, and had nearly two years in which to run, and that no license could be granted until this period of time had expired, and that the holding of an election would be a useless and needless expense. Upon the addressing of this motion to the petition asking for the election, the board granted the prayer of the motion and dismissed the petition; thereupon an appeal was taken to the Gibson circuit court by two of the petitioners. In addition to being parties to the proceedings in the commissioner's court, they filed an affidavit setting up that they were aggrieved by the decision of the board of commissioners. After the proceeding reached the circuit court, appellant entered a special appearance to the petition, and by written motion moved to dismiss the appeal for the reasons assigned in the commissioners' court, and that the appeal had been taken after the commissioners' court had adjourned and in vacation, and no summons had been issued for him to appear, and likewise a stay of proceedings was asked until summons was issued. Upon motion of the petitioners who appealed, summons was ordered for appellant to appear to the petition, and the motion to dismiss the appeal and to stay proceedings was overruled. After an unsuccessful attempt to quash the summons upon special appearance, appellant addressed a pleading to the petition similar to the one addressed to the petition in the commissioners' court. This pleading was stricken out on motion of the petitioners who appealed, and appellant reserved an exception to the action of the court. Thereupon he filed an answer of general denial as a taxpayer to the petition, and upon the issues thus joined a trial was had, and the court found that the petition was sufficient and ordered that an election be held on June 24, 1915, to determine whether the sale of intoxicating liquors as a beverage should be prohibited in the city of Princeton, and further ordered and directed the board to give notice and to take such further steps as were necessary under the statute to hold such election. Appellant moved the court for a new trial, but the court refused to permit his motion to be filed. To the action of the court in this behalf appellant excepted. The prayer for an appeal was granted and bond filed and approved.

The many reasons assigned why the cause should be dismissed may all be summed up in the general proposition as to whether there was such a judgment rendered in the circuit court from which an appeal could be taken, and as to whether appellant had such an interest as to entitle him to prosecute an appeal. In addition to the above, however, appellee suggests, rather than argues, that appellant has no standing in this court for the reason that mandate, and not an appeal, was appellee's remedy when the board refused to order the election.

[1] Section 8316 et seq., Burns' R. S. 1914, provides, among other things, that whenever a petition has been signed by a given per cent. of the qualified voters, and filed with the county auditor, praying the board of commissioners for the privilege of determining by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited, within a certain described territory, the board of commissioners at its next regular session shall order a special election within 20 nor more than 30 days thereafter. Now where the board of commissioners refuses to order an election by reason of an objection being interposed by a taxpayer and dismisses the petition therefor, was the act judicial*25from which an appeal would lie? Under section 6021, Burns' R. S. 1914, an appeal may be taken by any one aggrieved from any decision of the board of commissioners. This statute allows appeals...