Decker v. Sargeant

• Decision Date: 15 October 1890
• Docket Number: 15,784
• Citation: 25 N.E. 458,125 Ind. 404
• Parties: Decker v. Sargeant
• Court: Indiana Supreme Court

25 N.E. 458

125 Ind. 404

Decker v. Sargeant

No 15,784

Supreme Court of Indiana

October 15, 1890

From the Porter Circuit Court.

Judgment affirmed, with costs.

N. L Agnew and D. E. Kelly, for appellant.

A. D Bartholomew, for appellee.

OPINION

Berkshire, C. J.

The facts, as disclosed by the record, may be briefly stated, and are as follows: On the 16th and 17th days of June, 1890, the appellant was the keeper of a saloon in the city of Valparaiso, wherein he retailed intoxicating liquors to be used upon the premises. He held a license from the State, and likewise from the city.

At the dates named there was an ordinance in force in said city (if the common council had the power to enact such an ordinance) as follows:

"An ordinance providing for the closing of liquor saloons. Section 1. Be it ordained by the common council of said city of Valparaiso, that any person, or persons, keeping a saloon, or other place within the limits of the city, where intoxicating, distilled, or fermented liquors are sold to be drank upon the premises, shall close the same for the night at 11 o'clock, p. m., of each day, at which time such persons shall raise all door-screens, and remove any obstructions, so as to give an unobstructed view of the interior, and require all other persons to vacate said premises, and shall not reopen the same until 5 o'clock, A. M., the following day."

On the 25th day of June a prosecution was instituted before the mayor of said city against the appellant, to recover a penalty for a violation of said ordinance between the dates first named, and he was, as the result of said prosecution, found guilty of a violation of said ordinance and adjudged to pay a penalty of five dollars and costs, and that he stand committed until said fine and costs were paid or replevied. The appellant having failed to pay or replevy the said judgment, the said mayor issued his mittimus committing the appellant to the jail of Porter county and in charge of the appellee, the sheriff of the county and ex officio its jailer. To obtain his release from said commitment and his discharge from any liability on account of said judgment, this proceeding was instituted.

There are two errors assigned, but in argument appellant's counsel present for our consideration but one question, had the common council the power to enact the ordinance in question?

Counsel for the appellee contends that there is a further question which he insists meets us at the threshold and blocks the way to a consideration of the question which the appellant asks us to consider. The appellee contends that the judgment of the mayor of Valparaiso can not be attacked collaterally, except for want of jurisdiction, and that this proceeding is but a collateral attack upon the judgment and does not proceed upon the theory that the court was without jurisdiction.

In view of the conclusion which we have reached upon the question which the appellant brings before us, we have not found it necessary to consider the other question.

The appellant, but for his license, would not have had the right...