Gordon v. Corning

• Decision Date: 09 June 1910
• Docket Number: No. 21,560.,21,560.
• Citation: 92 N.E. 59,174 Ind. 337
• Parties: GORDON v. CORNING et al.
• Court: Indiana Supreme Court

174 Ind. 337

92 N.E. 59

GORDON

v.CORNING et al.

No. 21,560.

Supreme Court of Indiana.

June 9, 1910.

Appeal from Circuit Court, Daviess County; H. I. Houghton, Judge.

Suit by Joseph I. Gordon against Lucian F. Corning and others. Judgment for defendants, and complainant appeals. Affirmed.

Gardiner, Tharp & Gardiner and Padgett & Padgett, for appellant.

MYERS, J.

On December 8, 1908, appellant procured a license from the board of commissioners of Daviess county to sell intoxicating liquors to be drunk as a beverage. On February 23, 1909, pursuant to an election held under the loca option law (Sp. Sess. Laws 1908, p. 4), a majority of the legal voters voted against the licensing of 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 had invested$3,000 in furniture and fixtures, and $2,000 in stock, and had built up a lucrative business profiting him $200 per month, and that he had at all times conducted the business in a lawful and orderly manner; that the defendants as peace officers, claiming that appellant's license would expire at the end of 90 days from the date of such election, to wit, May 23d, 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 up, 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 the 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 by the case of McPherson v. State, 90 N. E. 610, except that in that case the question was not elaborated except in the dissenting opinion, as to the effect upon the jurisdiction of boards of commissioners, 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 boards are divested 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, 168 Ind. 8, 79 N. E. 201, 896, 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. Under the rule in Cain v. Allen, the board is required, and authorized, to take jurisdiction of the proceeding to the extent of determining whether or not a remonstrance has been signed by the requisite number of legal voters, and, having so determined, jurisdiction to grant license is denied, subject to the right of appeal, but in Hoop v. Affleck, 162 Ind. 564, 70 N. E. 978, 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, as 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, 33 Me. 558, 54 Am. Dec. 639;Lincoln v. Smith, 27 Vt. 328;State v. Paul, 5 R. I. 185;State v. Aiken, 42 S. C. 222, 20 S. E. 221, 26 L. R. A. 345;New Orleans v. Smythe, 116 La. 685, 41 South. 33, 6 L. R. A (N. S.) 722, 114 Am. St. Rep. 566;Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205;Guy v. Commissioners of Cumberland Co., 122 N. C. 471, 29 S. E. 771;State v. Allmond, 2 Houst. (Del.) 612;Oviatt v. Pond, 29 Conn. 479;State v. Wheeler, 25 Conn. 290. The finding that the necessary remonstrance had been filed absolutely denies jurisdiction to grant a license irrespective of all other questions. Behler v. Ackley, 89 N. E. 877.

The statute of 1908 goes a step further, and denies jurisdiction in the board, in case of an adverse election, to hear or consider applications for license; but that presupposes an adverse election. It cannot be denied that the Legislature may determine what jurisdiction it will give such inferior tribunals as boards of commissioners. State v. Board, 170 Ind. 595, 85 N. E. 513;State v. Hart, 144 Ind. 107, 43 N. E. 7, 33 L. R. A. 118;Board v. Allman, 142 Ind. 573, 42 N. E. 206, 39 L. R. A. 58;Gavin v. Board, 104 Ind. 201, 3 N. E. 846. In case of remonstrance, the board may hear to the point of determining whether the remonstrance is signed by the requisite number of legal voters; that it must do for itself. But the Legislature has gone farther in the act of 1908, and determined that question for it, in case of an adverse vote; that is, that an adverse vote shall divest 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 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 in 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 v. Common Pleas, 36 N. J. Law, 72, 13 Am. Rep. 422;State v. Pond, 93 Mo. 606, 6 S. W. 469;Locke's Appeal, 72 Pa. 491, 13 Am. Rep. 716. The same thing is true with respect to the claim of such laws being local, or lacking uniformity; they are general, and operate alike everywhere in the state. State v. Pond, supra; Ex parte Swann, 96 Mo. 44, 9 S. W. 10;Gordon v. State, 46 Ohio St. 607, 23 N. E. 63, 6 L. R. A. 749;State v. Circuit Court, 50 N. J. Law, 585, 15 Atl. 272, 1 L. R. A. 86. The board of commissioners is a tribunal whose powers and jurisdiction are statutory, and may have its powersenlarged, or curtailed, as the Legislature may see fit. They only have such powers as the General Assembly may confer upon them of a local, administrative character. Section 160, Burns' Ann. St. 1908.

The proceeding being purely statutory, there is not necessarily a right to an appeal on a status fixed by the public law. It is not so even with respect to a property, or natural right, where the same may be affected, within the due process of law and privileges and immunities clauses of the federal Constitution, though there must be an opportunity for a hearing before some tribunal at some stage of the proceeding. Jordan v. Evansville, 163 Ind. 512, 515, 516, 72 N. E. 544, 67 L. R. A. 613;Public Clearing House v. Coyne, 194 U. S. 497, 24 Sup. Ct. 789, 48 L. Ed. 1092;Reetz v. Michigan, 188 U. S. 505, 23 Sup. Ct. 390, 47 L. Ed. 563;Pittsburg, etc., Co. v. Backus, 154 U. S. 421, 14 Sup. Ct. 1114, 38 L. Ed. 1031;Giozza v. Tiernan, 148 U. S. 657, 13 Sup. 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, 178 Mo. 385, 77 S. W. 992;Koepke v. State, 68 Neb. 152, 93 N. W. 1129;Sopher v. State (1907) 169 Ind. 177, 192, 81 N. E. 913, 14 L. R. A. (N. S.) 172.

It 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, 44 N. E. 469, 33 L. R. A. 313;State v. Gulley, 41 Or. 318, 70 Pac. 385;Mulligan v. United States, 120 Fed. 98, 56 C. C. A. 50; Ex parte Finnegan, 27 Nev. 57, 71 Pac. 642;People v. Werner, 174 N. Y. 132, 66 N. E. 667;Banks v. State, 136 Ala. 106, 34 South. 350;Hamer v. People, 104 Ill. App. 555;Sweeney v. Webb, 33 Tex. Civ. App. 324, 76 S. W. 766;Rippey v. State (Tex. Cr. App.) 73 S. W. 15;Gray v. State, 44 Tex. Cr. App. 470, 72 S. W. 169;Jenkins v. State, 82 Miss. 500, 34 South. 217;Webster v....