Gates v. Haw

• Decision Date: 27 April 1898
• Docket Number: 18,327
• Citation: 50 N.E. 299,150 Ind. 370
• Parties: Gates et al. v. Haw et al
• Court: Indiana Supreme Court

50 N.E. 299

150 Ind. 370

Gates et al. v. Haw et al

No. 18,327

Supreme Court of Indiana

April 27, 1898

From the Hancock Circuit Court.

Affirmed.

N. R Spencer and E. J. Binford, for appellants.

Charles Downing, W. A. Hough and R. A. Black, for appellees.

OPINION

McCabe, J.

This was an application to the board of commissioners of Hancock county by the appellees to obtain a license to sell intoxicating liquor in a less quantity than a quart at a time to be drank on the premises. From the determination of said board there was an appeal to the circuit court. The appellants remonstrated on the ground, among others, that the room in which it was proposed to conduct such sales was so situated and constructed as that such sales therein would violate the fourth section of the Nicholson law. Acts 1895 p. 250. A trial of the case in the circuit court resulted in a finding for the applicants, and judgment awarding a license to them, as prayed for, over appellants' motion for a new trial on the ground that the finding was contrary to law.

Error is assigned on the action of the circuit court in refusing a new trial. The trial was upon an agreed statement of facts. It was not in the form of an agreed case under the statute but the facts agreed upon, took the place of the evidence, as was the case of City of Shelbyville v. Phillips, 149 Ind. 552, 48 N.E. 626, and cases there cited.

But we are met with the objection that the bill of exceptions incorporating the agreed statement of facts does not show that such facts constituted all the evidence given in the cause, and the case just cited is referred to as authority for so holding. This case, however, is somewhat different from that. It was stated in the bill of exceptions here that: "The cause was submitted to the court for trial without the intervention of a jury on the following agreed statement of facts. * * * The parties hereto hereby stipulate by their respective attorneys that for the purpose of the trial of this cause, the following facts are agreed upon and admitted;" and then follows the statement of facts. Immediately following the statement of facts the bill states: "That the above agreed statement of facts contains all the facts agreed upon and which were admitted to the court, and all the facts heard or considered by the court in the determination of said cause." It is insisted by the appellees that this language does not show that the agreed statement of facts contains all the evidence given in the cause. It is true there is a broad distinction, as a general rule, between evidence and facts. Webster defines the word "fact" to be an effect produced or achieved. And he defines the word "evidence" to mean that which is legally submitted to a competent tribunal as a means of ascertaining the truth of any alleged matter of fact under investigation before it. It is said in note 4, 7 Am. and Eng. Ency. of Law, p. 658, that, "Facts constituting a cause of action are those facts which the evidence upon the trial will prove, and not the evidence which will be required to prove the existence of the fact." To illustrate further the distinction between a fact and evidence it is said by Ram on Facts, p. 5, that: "A fact, once in complete existence, once ended, admits of no addition, no subtraction; 'nothing can be put to it, nor anything taken from it;' once in existence, it is irrevocable." Not so with evidence tending to prove a fact. It may be added to or subtracted from, weakened, strengthened, or destroyed. So that it may be conceded that a fact is one thing and evidence is quite a different thing, as a general rule. That competent evidence always tends to prove or disprove an alleged fact in dispute. But it may sometimes happen that the fact in issue and the evidence of that fact are one and the same thing. Louisville, etc., R. W. Co. v. Miller, 141 Ind. 533, 37 N.E. 343. As to the distinction between the facts and the evidence, see Boyer v. Robertson, 144 Ind. 604, 43 N.E. 879.

It is a common thing for members of the legal profession to use the words facts and evidence as synonymous, and in some instances we have seen the fact and the evidence thereof is one and the same thing. In view of all this, and the whole of the language quoted from the bill of exceptions, it is apparent that the word facts was used for the purpose of conveying the same meaning as the word evidence, and the court and counsel manifestly meant by the word "facts" the evidence; and in such a case it is our duty so to construe the language. Harris v. Tomlinson, 130 Ind. 426, 30 N.E. 214. And so construing the language, it is clear that the agreed statement was all the evidence given in the cause. And the bill of exceptions incorporating the agreed statement being properly in the record, it appears that all the evidence given in the cause is properly before us.

The objection, and the sole objection, urged to the finding is that the situation and condition of the room is such as would make it unlawful to sell therein.

It is conceded that the agreed facts entitled appellees to the license, unless the situation and arrangement of the room was such as that a sale therein would violate section 4 of the act in question. And appellants insist that such was the arrangement and situation of the room, and hence that appellees were not legally entitled to a license, and therefore the finding that they were, was contrary to law.

The appellees, however, contend, that even though such was the situation and arrangement of the room, nevertheless, that was not a sufficient legal objection to defeat their application. And they further contend that the agreed statement of facts fails to show that the arrangement and situation of the room are such as that sales therein would violate said section. It reads thus: "Any room where intoxicating liquors are sold by virtue of a license issued under the law of the State of Indiana, for the sale of spirituous, vinous, malt, or other intoxicating liquors in less quantities than a quart at a time, with permission to drink the same upon the premises, shall be situated upon the ground floor or basement of the building where the same are sold, and in a room fronting the street or highway upon which such building is situated,...