Ensley v. State ex rel. Brown

• Citation: 88 N.E. 62,172 Ind. 198
• Decision Date: 22 April 1909
• Docket Number: No. 21,221.,21,221.
• Parties: ENSLEY, Treasurer, et al. v. STATE ex rel. BROWN.
• Court: Supreme Court of Indiana

172 Ind. 198

88 N.E. 62

ENSLEY, Treasurer, et al.

v.STATE ex rel. BROWN.

No. 21,221.

Supreme Court of Indiana.

April 22, 1909.

Appeal from Superior Court, Marion County; James M. Leathers, Judge.

Mandamus, on the relation of Peter Brown against Oliver P. Ensley, treasurer of Marion county, and another. From an adverse judgment, defendants appeal. Affirmed.

Crate D. Bowen and Charles E. Barrett, for appellants. Bernard Corbly, for appellee.

MYERS, J.

Appellee's relator, on the 22d day of August, 1907, filed in the office of the clerk of the Marion superior court his complaint against the treasurer and comptroller of the city of Indianapolis, for an alternative writ of mandate to compel said officers to issue to him a liquor license, claiming the right to have issued to him a license to sell intoxicating liquors, pursuant to the provisions of an ordinance of the city of Indianapolis, which ordained that, before license should issue to sell intoxicating liquors in, or within two miles of, that city, the applicant should pay $250 to the treasurer, who should issue a receipt therefor, and on presentation of the latter to the comptroller, together with the license issued by the board of commissioners, a license should issue. On the 15th day of April, 1905, the general cities and towns law or this state went into effect, the fortieth subsection of section 8655 of which (Burns' Ann. St. 1908) confers power upon common councils of cities “to license, tax, regulate and restrain, all shops, inns, taverns or other places where intoxicating liquors are kept for sale to be used in and on the premises, and in regulating, restraining and licensing such inns, taverns, shops or places aforesaid, such common council shall have power to designate the room, building or structure where such liquors may be sold, and may exclude such sales from the suburban or residence part of such city, and confine the places where such sales may be made, to the business part of such city, and may define such suburban, or residence, and business parts of such city, and may direct the arrangement and construction of the doors, windows and openings of the particular room in such building where said sales may be had, or such intoxicating liquors be drunk, and may direct the location and construction of the bar kept therein, and the interior arrangement and construction of such room, and direct what games may be carried on therein, and may forbid the keeping or use of winerooms.” On July 1, 1907, the city of Indianapolis enacted an ordinance requiring an applicant for the sale of intoxicating liquors to file an application with the comptroller, in which he shall “state his name, residence, age, and his place of residence and occupation for the two years immediately preceding the making of such application, and shall, in such application describe the premises wherein, and whereon he desires to carry on such business, giving a particular description of the real estate, the building on said property, and the various entrances to such room, and shall state whether any other business is to be carried on in the same room, or in connection with such business, and shall pay to the comptroller one dollar as a filing fee for the filing of such application; and upon such application being filed with the city comptroller and the fee for filing paid, the comptroller shall certify said application to the common council of said city; and upon said common council being satisfied with the fitness of the applicant, and with the place where such intoxicating liquors are proposed to be sold, the council aforesaid shall by resolution approve such application, and thereafter such applicant shall pay to the city comptroller of the city of Indianapolis the sum of two hundred and fifty dollars as a license fee for one year; and the comptroller shall, on such payment being made, issue a license to such applicant for the sale of intoxicating liquors on the premises described in the application, but until such application for license is approved by the common council of said city, a license shall not issue.” Appellee's relator procured from the board of commissioners of Marion county a license to sell intoxicating liquors in the city of Indianapolis for the period of one year from August 6, 1907, and on the 21st day of August tendered the treasurer of the city the sum of $250; that being the amount required by the prior ordinance of the city for license to sell intoxicating liquors. The treasurer refused to receive the money, and refused to issue him a receipt therefor, and he then tendered the same sum to the comptroller, and presented him the license issued by the board of commissioners, and demanded that a license issue to him. The money was refused, and the license denied. Relator then brought this action to compel its issuance.

The treasurer and comptroller answered, setting up the ordinance of July 1, 1907, and showing that relator had not complied with the provisions of that ordinance. This ordinance is claimed by relator to be void on the ground that it is repugnant to section 23 of the Bill of Rights, as granting privileges or immunities to one citizen, or class of citizens, not equally open to all on the same terms, in that it commits to the common council the right to determine to whom it will or will not issue license; that it requires a license fee of $251, when the limit under the statute is $250; that under section 8655, Burns' Ann. St. 1908, executive or administrative functions which are “required to be performed by any ordinance or resolution of the common council *** shall be performed by the proper executive department, and not by any such council”; and that the ordinance of July 1, 1907, being invalid, the ordinance of 1899 is in force, and that the exclusive power to pass upon the fitness of applicants to sell intoxicating liquors is vested in boards of commissioners. The ordinance is attacked on the ground that the granting or refusal of licenses is not governed by any prescribed rules, but rests upon the discretionary action of the council. It cannot be successfully contended that it would not be in the power of the Legislature to commit to common councils, probate judges, excise boards, and the like, the right to determine the fitness of persons to sell intoxicating liquors, and this may be a discretionary power. State v. Columbia, 17 S. C. 80;Intoxicating Liquor Cases, 25 Kan. 751, 37 Am. Rep. 284; Black, Intoxicating Liquors, § 154. But the power must be exercised under prescribed rules, governing the cases of all applicants, so that all applicants, so far as making the application and its hearing are concerned, may stand on the same rules and procedure.

The statute of 1905 (Laws 1905, p. 219, c. 129) is not attacked, but the contention is that, under the statute, the regulation must be under prescribed rules as to conditions, locality, etc., and that the question of fitness of the applicant is left wholly to boards of commissioners, and that the cities have nothing to do with the question. It is an acknowledged canon of construction that all laws upon a subject, or germane to it, shall be construed together, so that all may be given effect and produce a harmonious system, and that it will be presumed that the Legislature in enacting a law does so with reference to existing laws. Humphries v. Davis, 100 Ind. 274, 50 Am. Rep. 788;Lutz v. City of Crawfordsville, 109 Ind. 466, 10 N. E. 411; Bishop, Written Laws, § 242b. Evidently the Legislature in the enactment of 1905 had in mind the authority conferred by existing laws upon boards of commissioners of determining the fitness of applicants, and also the confusion which must inevitably follow if two apparently co-ordinate jurisdictions were constituted to pass upon that question, when it is apparent that one jurisdiction might find one way, and another in another way, depending upon the character of evidence offered, personal considerations, and many other elements, while to commit to one the exclusive right of determining that question would allow of the harmonious working of all the statutes upon the subject; and the general rule is that, when the right of determining the fitness of the applicant is conferred upon one jurisdiction, that is exclusive, and for obvious reasons. Cooke v. Court of Common Pleas, 51 N. J. Law, 85, 16 Atl. 176;Zinner v. Commonwealth (Pa.) 14 Atl. 431;Wiggins v. Varner, 67 Ga....