Gordon v. Corning

• Decision Date: 09 June 1910
• Docket Number: 21,560
• Parties: Gordon v. Corning et al
• Court: Indiana Supreme Court

92 N.E. 59

174 Ind. 337

Gordon v. Corning et al

No. 21,560

Supreme Court of Indiana

June 9, 1910

From Daviess Circuit Court; H. Q. Houghton, Judge.

Suit by Joseph I. Gordon against Lucian F. Corning and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

A. J Padgett, Alvin Padgett and Gardiner, Tharp & Gardiner for appellant.

OPINION

Myers, J.

On December 8, 1908, appellant procured a license from the Board of Commissioners of the County of Daviess to sell intoxicating liquors to be drunk as a beverage. On February 23, 1909, pursuant to an election held under the local option law (Acts 1908 [s. s.] p. 4), a majority of the legal voters voted against licensing the sale of intoxicating liquors as a beverage in that county. Appellant, on April 20, 1909 instituted a proceeding for an injunction against appellees, alleging that he (appellant) had invested $ 3,000 in furniture and fixtures, and $ 2,000 in stock, and had built up a lucrative business, profiting him $ 200 a month, and that he had at all times conducted the business in a lawful and orderly manner; that appellees, as peace officers, claiming that appellant's license would expire at the end of ninety days from the date of such election, to wit, May 23, were threatening to, and would unless restrained, by force interfere with, molest and disturb him from carrying on his business, and he would be forced to close it, to his great and irreparable loss; that they were acting upon the belief that the act of 1908 is a valid law, whereas it is invalid and unconstitutional. The sole question urged here is the unconstitutionality of said act of 1908.

There is no brief for appellees. We restrict this decision to the questions presented by appellant, and they have all been determined by this court, since this appeal was perfected, in the case of McPherson v. State (1910), ante, 60, except that in that case the question as to the effect upon the jurisdiction of boards of commissioners of a county local option election, wherein a majority voted against the licensing of saloons, was not elaborated, except in the dissenting opinion, and it is here insisted that the act is unconstitutional, because, with a general right of application for license, and a general right of appeal under the act of 1908, supra, boards are devested of the right to hear or consider applications, or, in the language of counsel, "the act of 1908 does not create any conditions on which the exercise of that right depends, but entirely prohibits the exercise of that right. There is a very broad distinction between prohibition and limitation." The case of Cain v. Allen (1907), 168 Ind. 8, 79 N.E. 201, is cited in support of appellant's contention on this point. We do not understand that case as declaring a rule in conflict with McPherson v. State, supra. Under the rule in the case of Cain v. Allen, supra, the board is required and authorized to take jurisdiction of the proceeding, to the extent of determining whether a remonstrance has been signed by the requisite number of legal voters, and, having so determined, jurisdiction to grant a license is denied, subject to the right of appeal; but in the case of Hoop v. Affleck (1904), 162 Ind. 564, this court said: " The board of commissioners, being a creature of the legislature, has only such judicial power or jurisdiction as that body has seen proper to give, and may exercise that given only upon the terms and conditions prescribed. * * * If it is found that the remonstrance is in due form and adequately signed, the finding, ipso facto, defeats the further jurisdiction of the board in the same sense that an affirmative finding on a plea in abatement will defeat jurisdiction."

It must be borne in mind that there is no such natural, inherent or inalienable right to sell intoxicating liquors that it may not be regulated by law. McClanahan v. Breeding (1909), 172 Ind. 457, 88 N.E. 695, and cases cited; Preston v. Drew (1852), 33 Me. 558, 54 Am. Dec. 639; Lincoln v. Smith (1855), 27 Vt. 328; State v. Paul (1858), 5 R.I. 185; State, ex rel., v. Aiken (1894), 42 S.C. 222, 20 S.E. 221, 26 L.R.A. 345; City of New Orleans v. Smythe (1906), 116 La. 685, 41 So. 33, 6 L.R.A. (N.S.) 722, 114 Am. St. 566; Mugler v. Kansas (1887), 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; Guy v. Commissioners, etc. (1898), 122 N.C. 471, 29 S.E. 771; State v. Allmond (1858), 2 Houst. (Del.) 612; Oviatt v. Pond (1861), 29 Conn. 479; State v. Wheeler (1856), 25 Conn. 290.

The finding that a sufficient remonstrance had been filed, absolutely denies jurisdiction to grant a license irrespective of all other questions. Behler v. Ackley (1909), 173 Ind. 173.

The act of 1908, supra, goes a step further, and in case of an adverse election, denies jurisdiction in the board, to hear or consider applications for license. It cannot be denied that the legislature may determine what jurisdiction it will give to such inferior tribunals as boards of commissioners. State, ex rel., v. Board, etc. (1908), 170 Ind. 595, 85 N.E. 513; State, ex rel., v. Hart (1896), 144 Ind. 107, 33 L.R.A. 118, 43 N.E. 7; Board, etc., v. Allman (1895), 142 Ind. 573, 39 L.R.A. 58, 42 N.E. 206; Gavin v. Board, etc. (1885), 104 Ind. 201, 3 N.E. 846.

In case of remonstrance, the board may determine whether the remonstrance is signed by the requisite number of legal voters. That it must do for itself. But the legislature has gone further in the act of 1908, supra, and determined that question for it in case of an adverse vote; that is, an adverse vote shall devest jurisdiction unless the prima facie case made by the return is overthrown.

It does not follow, because there is jurisdiction to hear, and grant or refuse a license under some conditions, that the same power to hear, and grant or refuse exists under all conditions, or under the conditions which the legislature has said shall preclude license. It is not because of any power or lack of power in the board to hear the question, but because the law itself fixes a status, not of any individual, but of all persons. It is precisely the same question, in another form, as that presented by the claim that laws cannot go into effect, or be suspended by any other will than that of the legislature. It is the fiat of the law, and not the vote of the people, which declares the result. McPherson v. State, supra; State, ex rel., v. Court of Common Pleas (1872), 36 N.J.L. 72, 13 Am. Rep. 422; State, ex rel., v. Pond (1887), 93 Mo. 606, 6 S.W. 469; Locke's Appeal (1873), 72 Pa. 491, 13 Am. Rep. 716.

The same thing is true with respect to the claim that such laws are local or lacking uniformity. They are general, and operate alike everywhere in the State. State, ex rel., v. Pond, supra; Ex parte Swann (1888), 96 Mo. 44, 9 S.W. 10; Gordon v. State (1889), 46 Ohio St. 607, 23 N.E. 63, 6 L.R.A. 749; State v. Judge, etc. (1888), 50 N.J.L. 585, 15 A. 272, 1 L.R.A. 86.

The board of commissioners is a tribunal whose powers and jurisdiction are statutory, and its powers may be enlarged or curtailed as the legislature may see fit. Such boards have only such powers of a local, administrative character as the General Assembly may confer upon them. Const. Art. 6, § 10.

The proceeding being purely statutory, there is not necessarily a right to an appeal. Such right of appeal does not exist with respect to a property, or natural right which may be within the due process of law, and privileges and immunities clauses of the federal Constitution, but there must be an opportunity for a hearing before some tribunal at some stage of the proceeding. Jordan v. City of Evansville (1904), 163 Ind. 512, 67 L.R.A. 613, 72 N.E. 544; Public Clearing House v. Coyne (1904), 194 U.S. 497, 24 S.Ct. 789, 48 L.Ed. 1092; Reetz v. Michigan (1903), 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563; Pittsburgh, etc., R. Co. v. Backus (1894), 154 U.S. 421, 14 S.Ct. 1114, 38 L.Ed. 1031; Giozza v. Tiernan (1893), 148 U.S. 657, 13 S.Ct. 721, 37 L.Ed. 599.

There being no inherent or natural right to sell intoxicating liquors, its regulation is wholly within the police powers of the state. State v. Finney (1903), 178 Mo. 385, 77 S.W. 992; Koepke v. State (1903), 68 Neb. 152, 93 N.W. 1129; Sopher v. State (1907), 169 Ind. 177, 14 L.R.A. (N.S.) 172, 81 N.E. 913.

The right to sell intoxicating liquors is not one of the privileges or immunities of citizenship guaranteed by the Constitution, nor is it within any of the bills of rights. State v. Gerhardt (1896), 145 Ind. 439, 450, 451, 33 L.R.A. 313, 44 N.E. 469; State v. Gulley (1902), 41 Ore. 318, 70 P. 385; Mulligan v. United States (1903), 120 F. 98, 56 C. C. A. 50; Ex parte Finnegan (1903), 27 Nev. 57, 71 P. 642; People v. Werner (1903), 174 N.Y. 132, 66 N.E. 667; Banks v. State (1903), 136 Ala. 106, 34 So. 350; Hamer v. People (1902), 104 Ill.App. 555; Sweeney v. Webb (1903), 33 Tex. Civ. App. 324, 76 S.W. 766; Rippey v. State (1903), 73 S.W. 15; Gray v. State (1903), 44 Tex. Crim. 470, 72 S.W. 169; Jenkins v. State (1903), 82 Miss. 500, 34 So. 217; Webster v. State (1903), 75 S.W. 1020.

It is not, therefore, essential, in order that such county local option act be constitutional, that there should be a right of contest or of appeal, and the return of the election commissioners may be made final. The right to contest an election is not a common-law right. The common-law right is by quo warranto. Weakley v. Wolf (1897), 148 Ind. 208, 47 N.E. 466; Gass v State, ex rel. (1870), 34 Ind. 425; Fowler v. Gable (1893), 3 Pa. Dist. Rep. 23; Shindler v. Floyd (1904), 118 Ky. 468, 81 S.W. 668; Ogburn v. Elmore (1905), 123 Ga. 677, 51 S.E. 641; Skrine v. Jackson (1884), 73 Ga. 377; Caldwell v. Barrett (1884), 73 Ga. 604; State, ex rel., v. Dortch (1889), 41 La. Ann....