Jay v. O'Donnell
| Decision Date | 26 April 1912 |
| Docket Number | 22,123 |
| Parties | Jay v. O'Donnell |
| Court | Indiana Supreme Court |
Rehearing Denied July 5, 1912.
From Howard Circuit Court, William C. Purdum, Judge.
Application by Michael O'Donnell for license to sell intoxicating liquors, against which Gilbert D. Jay remonstrated. From a judgment granting the license, the remonstrant appeals.
Reversed.
Harness & Moon, Bell, Kirkpatrick & Voorhis, for appellant.
Rabb & Mahoney, for appellee.
Appellee applied to the Board of Commissioners of the County of Howard for a license to sell intoxicating liquors as a beverage in the city of Kokomo. Appellant filed a remonstrance, which alleged, in brief, that by order of said board of commissioners a local option election had been held in said city of Kokomo, under the act approved February 3, 1911 (Acts 1911 p. 8), and that a majority of the legal votes cast in said city at said election was in favor of prohibiting the sale of intoxicating liquors as a beverage in said city, and that said board of commissioners so declared the result of said election. Said commissioners made an order adjudging that said remonstrance was sufficient, and that the same be sustained, and adjudged that the board had no jurisdiction to act on appellee's said petition. From this decision of the board, appellee appealed to the court below. The cause was submitted to the court without a jury and the court found for appellee, and over a motion for a new trial rendered judgment granting him a license to sell intoxicating liquor as a beverage.
It is first insisted by appellant that appeals only lie from final judgments of the boards of commissioners, and that no final judgment was rendered by the board of commissioners in this cause, and that appellee's remedy was not by appeal from the action of the board, but by mandamus to compel the board to render final judgment in said proceeding.
While our statutes (§ 6021 Burns 1908, § 5772 R. S. 1881; Acts 1911 p. 244, § 22) provide that an appeal from any decision of the board of commissioners may be taken, it has been held uniformly that the same must be final in its nature, and that it must end the proceeding before that tribunal. Good v. Burk (1906), 167 Ind. 462, 467, 77 N.E. 1080, and cases cited; Walb v. Eshelman (1911), 176 Ind. 253, 94 N.E. 566, 570.
It is evident that the judgment of said board, that the remonstrance of appellant was sufficient and that the same be sustained, and that it had no jurisdiction of the proceeding, put an end to the proceeding before it. Said judgment was therefore final in its nature, and an appeal therefrom was authorized. Acts 1911 p. 244; § 6021, supra.
Section 22, Acts 1911 p. 244 expressly authorizes an appeal from a decision of the board of commissioners in a proceeding before said board to obtain a license to sell intoxicating liquors as a beverage. When there is an adequate remedy by appeal, mandamus will not lie. Board, etc., v. State, ex rel. (1909), 173 Ind. 52, 55, 88 N.E. 673, 89 N.E. 367; Couch v. State, ex rel. (1907), 169 Ind. 269, 82 N.E. 457, 124 Am. St. 221; State, ex rel., v. State Board, etc. (1910), 173 Ind. 706, 709, 91 N.E. 338.
It appears from the record that the Board of Commissioners of the County of Howard, at its February term, 1911, made an order on a petition to said board under the local option law, approved February 3, 1911 (Acts 1911 p. 8), that an election be held under the provisions of said law, to determine whether "the sale of intoxicating liquors as a beverage should be prohibited" within the limits of the city of Kokomo in said county; that according to the tally sheets kept by the election clerks and the certificates of the votes made by the judges and inspectors of election of the various precincts in said city and filed with the county auditor, there was a majority of twenty-eight votes cast and counted in favor of prohibiting the sale of intoxicating liquors in said city; that at the meeting of the election commissioners held under said act it was claimed that the tally sheet and certificate of the vote signed by the inspectors and judges of the third precinct of the fourth ward in said city, showing 110 votes in favor of prohibiting the sale of intoxicating liquors as a beverage in said city and seventy-four votes against prohibiting such sale, were erroneous; that on oral testimony said election commissioners found that there were cast in said precinct seventy-four votes for prohibiting the sale of intoxicating liquors as a beverage in said city and 110 votes against prohibiting such sale; that the board of election commissioners instead of placing in their certificate the number of votes cast in said precinct, as shown by the returns of the election officers of said precinct, placed therein the number of votes cast for and against prohibiting the sale of intoxicating liquors as a beverage in said city, as shown by the finding of said election commissioners; that said certificate as so made out, signed and filed showed a majority of forty-four votes against prohibiting the sale of intoxicating liquors as a beverage in said city; that at the next regular session of the board of commissioners of said county, after the certificate of said election commissioners was filed with the auditor of said county, Gilbert D. Jay, appellant in this proceeding, filed a paper charging in effect, that many of the electors of said city were bribed to vote against prohibiting the sale of intoxicating liquors as a beverage in said city, and that they did so vote, and that a large number of nonresidents of said city voted against prohibiting such sales of intoxicating liquors; that by reason of said facts a majority of the legal votes cast at said election was in favor of prohibiting the sale of intoxicating liquor as a beverage in said city, and praying that the board so find, order and adjudge.
One McCutcheon, a person interested in opposing the prohibition of the sale of liquor in said city, appeared before said board of commissioners and answered, denying the statement of said Jay, and also filed a counter-statement, charging that many illegal votes were cast and counted at said election in favor of prohibiting such sale in said city, and that a majority of the legal votes cast was against prohibiting such sales, and praying that the board so find, order and adjudge.
Said board of commissioners thereupon heard evidence for five days, and heard argument of counsel, and made a finding and order in said cause, wherein it was found, adjudged and declared that the result of said election was and is that the majority of the legal votes cast at said election was in favor of prohibiting the sale of intoxicating liquors as a beverage in said city.
The court below held that the Board of Commissioners of the County of Howard had no power to hear or to determine the question whether a majority of the legal votes cast was cast for or against prohibiting the sale of intoxicating liquors as a beverage in said city, and that the certificate of the election commissioners as to the result of said election, filed with the county auditor, was conclusive, and the only evidence of the true result of said election.
Appellant contends (1) that under the local option law the duties of the election commissioners are purely ministerial, that they have no power to decide as to the truth of the returns made to them by the election officers of the different precincts, that they can only perform the act of tabulating the votes of said precincts as they come to them and make return thereof to the board of county commissioners; (2) that the board of commissioners has the power and jurisdiction to go behind said return, to investigate, hear evidence and declare the result of the election according to "a majority of the legal votes cast"; (3) that such declaration of the result cannot be collaterally attacked.
Appellee insists that "the board of commissioners is primarily an administrative body; that its duties in local option election proceedings are purely ministerial; that as the local option law does not in express terms confer on such board power and jurisdiction to entertain a contest of the election held under it, or to determine in any manner, either from the return of the election commissioners or from extrinsic evidence, its result, the only power of said board of commissioners is to declare the result of the election as shown by the certificate of the election commissioners" filed with the county auditor, which, so far as this case is concerned, was against prohibiting the sale of intoxicating liquors as a beverage in said city of Kokomo. Boards of commissioners at the time the present Constitution took effect had judicial powers--the powers of courts. 1 Elliott, Gen. Prac. § 197; State, ex rel., v. Board, etc. (1885), 101 Ind. 69, 71, 72; Board, etc., v. Conner (1900), 155 Ind. 484, 58 N.E. 828; Strayer v. Taylor (1904), 163 Ind. 230, 69 N.E. 145.
Article 3, § 1, of the Constitution provides: "The powers of the government are divided into three separate departments; the legislative, the executive including the administrative, and the judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this Constitution expressly provided." Such boards of commissioners, being courts, belonged to the judicial department of the state government, and the Constitution recognized that fact by providing in article 6, § 10, that "the General Assembly may confer upon the boards doing county business in the several counties, powers of a local, administrative character." No such provision would have been necessary if boards of commissioners...
To continue reading
Request your trial