Hoop v. Affleck

• Decision Date: 10 May 1904
• Docket Number: 20,182
• Citation: 70 N.E. 978,162 Ind. 564
• Parties: Hoop v. Affleck et al
• Court: Indiana Supreme Court

70 N.E. 978

162 Ind. 564

Hoop v. Affleck et al

No. 20,182

Supreme Court of Indiana

May 10, 1904

From Marion Circuit Court (12,605); H. C. Allen, Judge.

James Hoop filed an application for a license to sell intoxicating liquors in the town of Acton. From a judgment of the circuit court sustaining the action of the board of commissioners in refusing to strike a remonstrance from the files and to consider the application for a license, the applicant appeals.

Affirmed.

W. W Woollen, Evans Woollen, Albert Baker and Edward Daniels, for appellant.

E. F Ritter, for appellees.

OPINION

Hadley, J.

The appellant filed with the board of commissioners of Marion county his application for a license to sell intoxicating liquors in the town of Acton. There was timely filed with the auditor a remonstrance against the issuance of a license to the appellant, signed by divers legal voters of the township. The name of each person affixed to the remonstrance was signed by S. L. Arnold, in pursuance of authority vested in him by a written power of attorney executed conjointly, but severally, by all the persons whose names appeared to the remonstrance. Appellant's motion to strike said remonstrance from the files was overruled. The board having considered the same, and found it contained the signatures of seventy-two more than a majority of all the legal voters of the township, thereupon refused to consider appellant's application for license. Whereupon appellant appealed to the Marion Circuit Court, and upon a trial therein there was a finding and judgment against him for costs, from which latter judgment this appeal is prosecuted.

The judgment of the lower court is assailed upon the ground that section nine of the act of 1895 (Acts 1895, p. 248, § 7283i Burns 1901), commonly known as the Nicholson law, contravenes § 1, article 7, and § 23, article 1, of the state Constitution.

It is argued that the power of voters to defeat an application for license by filing a remonstrance under said § 7283i amounts to the clothing of a class of citizens with judicial power, in violation of § 1, article 7, of the Constitution, which provides that all judicial power shall be vested in a supreme, circuit, and such other courts as the General Assembly may establish. The power to confer or defeat jurisdiction is legislative and not judicial. 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. Under the Nicholson law the board of commissioners is empowered, as a court, to take cognizance of an application for license. If it finds that proper notice has been given, it must then take up the question of a remonstrance. If it is found that one has been timely filed, it then becomes its duty, under the law, to inquire and decide whether such remonstrance is in...