Kunkle v. Abell
| Decision Date | 11 December 1906 |
| Docket Number | 20,891 |
| Citation | 79 N.E. 753,167 Ind. 434 |
| Parties | Kunkle v. Abell et al |
| Court | Indiana Supreme Court |
From Pike Circuit Court; E. A. Ely, Judge.
Application by John E. Kunkle, against which Theodore Abell and others remonstrate. From a judgment for remonstrators, the applicant appeals.
Reversed.
E. P Richardson and A. H. Taylor, for appellant.
Samuel E. Dillin, J. W. Brumfield and Frank Ely, for appellees.
This proceeding was instituted by appellant's applying to the board of commissioners of Pike county, Indiana, at its regular October session, 1905, for a license to sell intoxicating liquors in the town of Petersburg, Washington township, in said county. It is disclosed that three days before the beginning of the June session, 1905, of the board of commissioners of said county, a general remonstrance under section nine of the Nicholson law, as amended by the act of 1905 (Acts 1905, p. 7, § 7283i Burns 1905), purporting to be signed by a majority of the legal voters of the township, was filed with the county auditor. This remonstrance was against granting a license to any and all persons to sell intoxicating liquors in said township. At said June session the board of commissioners, in the absence of the making of any application at that session for a license to sell intoxicating liquors in said township assumed jurisdiction over the remonstrance in question, and thereupon adjudged that it had been seasonably filed, and at the time of its filing had been signed by a majority of the legal voters of Washington township. It is also disclosed that a remonstrance against appellant, as authorized by § 7278 Burns 1901, § 5314 R. S 1881, alleging his unfitness to be intrusted with a license to sell intoxicating liquors, was filed at the October term, 1905, of the board of commissioners, but there is nothing in the record to show that it was given any consideration. Appellant's application herein for a license was at said October session, 1905, denied by the board of commissioners, solely upon the grounds that the filing of the general remonstrance in question, and the judgment of the board entered thereon at the June session, 1905, deprived the board of all jurisdiction in the matter of an application for license thereafter made. From this decision appellant appealed to the Pike Circuit Court. The latter court appears to have concurred in the ruling of the board of commissioners, and upon the same grounds held and adjudged that the application be dismissed, and that appellant take nothing by his proceedings, and rendered judgment against him for costs. From this judgment he has appealed to this court, and under his assignment of errors calls in question the ruling of the court in dismissing his application. He also assails the constitutional validity of the amendatory act of 1905, supra, and asks that under the facts in this case the meaning of the phrase or provision therein, "at the last election preceding the filing of such remonstrance," be construed.
The constitutional validity of the act in question and the right of the board of commissioners, under the circumstances, to assume jurisdiction over the remonstrance at its June session, 1905, were questions which were considered and determined in the appeal of Cain v. Allen (1907), 168 Ind. -- and the holding therein upon these questions must rule in the case at bar. It appears from the facts herein that on May 20, 1905, a special election was held in the first congressional district, of which Pike county forms a part, for the election of a congressman to fill a vacancy which had occurred since the general election in 1904. The greatest aggregate vote cast at said special election in Washington township, in said county, for the candidates for the office of representative in the congress of the United States for said district was 813. It is disclosed that at the general November election, 1904, the greatest aggregate vote cast in said township for candidates for any office was for the several candidates for Governor, and amounted to 1,161 votes. The remonstrance, as shown, was signed at the time of its filing by 439 persons, who purported to be legal voters. It is apparent that this number was a majority of 813, the greatest aggregate vote cast in said township at said special election for candidates for congress, but it falls short of being a majority of 1,161, the greatest aggregate vote cast at the general November election in 1904 for all of the candidates for Governor. Counsel for appellant, under the circumstances, insist that under section nine as amended the 1,161 votes is the standard by which the number of voters necessary to sign the remonstrance must be measured or tested. Counsel for appellees, however, contend that the election referred to in section nine as amended means any election, either general or special, at which some public officer or officers are to be elected. It is evident, therefore, that under the facts and contention of the respective counsel the question is involved in regard to the interpretation of the meaning of the phrase or provision "at the last election preceding the filing of such remonstrance." This same phrase was contained in section nine as it originally stood, and, prior to its amendment by the act of 1905, supra, had been construed by this court in the appeal of Massey v. Dunlap (1896), 146 Ind. 350,...
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