Kunkle v. Abell

Decision Date11 December 1906
Docket NumberNo. 20,891.,20,891.
PartiesKUNKLE v. ABELL et al.
CourtIndiana Supreme Court

167 Ind. 434
79 N.E. 753

KUNKLE
v.
ABELL et al.

No. 20,891.

Supreme Court of Indiana.

Dec. 11, 1906.


Appeal from Circuit Court, Pike County; E. A. Ely, Judge.

Application by John E. Kunkle for liquor license. From a judgment of the circuit court, affirming a decision of the county commissioners dismissing the application, he appeals. Reversed and remanded, with instructions to reinstate.


See 79 N. E. 201.

E. P. Richardson, for appellant. Samuel C. Dillin, J. W. Brumfield, and Frank Ely, for appellees.


JORDAN, J.

This proceeding was instituted by appellant applying to the board of commissioners of Pike county, Ind., 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 9 of the “Nicholson Law” (Acts 1895, p. 251, c. 127), as amended by the act of 1905 (Acts 1905, p. 7, c. 6), 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 any application having been made 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 it 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 section 7278, Burns' Ann. St. 1901, 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 ground 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, and asks that under the facts in this case...

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