Hoop v. Affleck

• Decision Date: 10 May 1904
• Citation: 70 N.E. 978,162 Ind. 564
• Parties: HOOP v. AFFLECK et al.
• Court: Indiana Supreme Court

162 Ind. 564

70 N.E. 978

HOOP

v.AFFLECK et al.

Supreme Court of Indiana.

May 10, 1904.

Appeal from Circuit Court, Marion County; H. C. Allen, Judge.

Application by James Hoop 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, the applicant appeals. Affirmed.

Baker & Daniels and Evans Woolen, for appellant. C. J. Orbison and Eli F. Ritter, for appellee.

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 72 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 9, c. 127, p. 251 of the act of 1895, commonly known as the “Nicholson Law,” being section 7283i, Burns' Ann. St. 1901, contravenes section 1, art. 7, and section 23, art. 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 section 7283i amounts to the clothing of a class of citizens with judicial power, in violation of section 1, art. 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...