Flynn v. Taylor

• Decision Date: 19 June 1896
• Docket Number: 17,861
• Citation: 44 N.E. 546,145 Ind. 533
• Parties: Flynn v. Taylor et al
• Court: Indiana Supreme Court

44 N.E. 546

145 Ind. 533

Flynn v. Taylor et al

No. 17,861

Supreme Court of Indiana

June 19, 1896

From the Vermillion Circuit Court.

Affirmed.

F. F James, for appellant.

Conley & Sawyer, for appellees.

OPINION

Monks C. J.

Appellant, after giving the notice required by law, filed in the auditor's office of Vermillion county, on August 31, 1895, his application for a license to sell intoxicating liquors in a less quantity than a quart at a time, at Dana, Holt township, of said county. On Thursday, August 29, 1895, there was filed with the said auditor, a remonstrance under section nine of an act approved March 11, 1895, Acts 1895, p. 251, commonly called the Nicholson law, against granting a license to said appellant, which remonstrance, it was claimed, was signed by a majority of the voters of said Holt township.

The board of commissioners found that said remonstrance was signed by a majority of the voters of said township and refused to grant a license to appellant for that reason, as required by said section nine, Acts 1895, p. 251.

Appellant appealed to the circuit court, and that court refused to grant a license for the same reason.

The first question presented for our decision is: When is the last day upon which a remonstrance may be filed under section nine of the act approved March 11, 1895, commonly known as the Nicholson law? Said section nine provides, that "If, three days before any regular session of the board of commissioners of any county, a remonstrance in writing, signed by a majority of the legal voters of any township or ward in any city situated in said county, shall be filed with the auditor of the county, against the granting of a license to any applicant for the sale of of spirituous, vinous, malt or other intoxicating liquors under the law of the State of Indiana, with the privilege of allowing the same to be drunk on the premises where sold within the limits of said township, or city ward it shall be unlawful thereafter for such board of commissioners to grant such license to such applicant therefor during the period of two years from the date of the filing of such remonstrance. If any such license should be granted by said Board during said period, the same shall be null and void, and the holder thereof shall be liable for any sale of liquors made by him the same as if such sale were made without license. The number to constitute a majority of voters herein referred to shall be determined by the aggregate vote cast in said township or city ward for candidates for the highest office at the last election preceding the filing of such remonstrance."

The remonstrance in this case was filed Thursday, August 29, 1895, and the regular September session of the board of commissioners commenced Monday, September 2, 1895.

In case a statute requires an act to be performed a certain number of days before a time named, the general rule is to include one day of the period and exclude the other. Krohn v. Templin, 2 Ind. 146; Womack v. McAhren, 9 Ind. 6; Catterlin v. City of Frankfort, 87 Ind. 45; Towell v. Hollweg, 81 Ind. 154, and cases cited.

Section 1280, R. S. 1881 (section 1304, R. S. 1894), provides that the time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last.

Section 516, R. S. 1881 (section 524, R. S. 1894), requires that summons be served on the defendant ten days before the first day of the term of court; and this same provision was in the revisions of 1843, 1838 and 1831. Under these several statutes it was held that service on Friday of the week before the court was sufficient. Womack v. McAhren, supra.

This was the construction of such statute before the enactment of section 1280 (1304), supra, in regard to the rule computing time. This court, in Womack v McAhren, supra, in speaking of said last named statute, said: "Nor does the statutory rule of excluding the...