Ludwig v. Cory
| Citation | 64 N.E. 14,158 Ind. 582 |
| Decision Date | 23 May 1902 |
| Docket Number | 19,615 |
| Parties | Ludwig v. Cory et al |
| Court | Indiana Supreme Court |
From Hancock Circuit Court; E. W. Felt, Judge.
From a judgment affirming an order of the board of county commissioners refusing the application of John M. Ludwig for a license to sell intoxicating liquors, the applicant appeals. Transferred to Supreme Court, under § 1337u Burns 1901.
Affirmed.
J. E McCullough, for appellant.
C. W Smith, J. S. Duncan, H. H. Hornbrook and A. Smith, for appellees.
Appellant, John M. Ludwig, applied to the board of commissioners of Marion county, under § 7278 Burns 1901, § 5314 Horner 1901, for a license to sell intoxicating liquors at the village of Oaklandon, in Lawrence township, Marion county, Indiana. Written remonstrances, based on § 7283i Burns 1901, purporting to have been signed by a majority of the legal voters of Lawrence township, were filed with the auditor of said county. By virtue of these remonstrances the board denied appellant's application, and adjudged that he pay the costs of the proceeding. From this decision of the board he appealed to the Marion Superior Court, from which the venue was changed to the Hancock Circuit Court. In the latter court appellant unsuccessfully moved to strike out and reject the remonstrances. A trial by the court resulted in a finding in favor of the remonstrators, and, over appellant's motion for a new trial, the court adjudged that he take nothing by the proceeding, and that the remonstrators recover of him their costs laid out and expended. To reverse this judgment this appeal is prosecuted, and the errors assigned are based on the rulings of the lower court in denying the motion to strike out the remonstrances, and in permitting appellees, remonstrators below, to introduce and read in evidence certain written instruments denominated "Power of Attorneys", and in overruling the motion for a new trial.
The record discloses the following facts: Appellant gave the notice required by § 7278 Burns 1901, § 5314 Horner 1901, of his intention to apply for a license to sell intoxicating liquors, at the regular session of the board of commissioners of Marion county, beginning on the first Monday in May, 1900. On May 3, 1900, three days before the commencement of said session, two written remonstrances were filed with the auditor of said county. These remonstrances, which for convenience may be denominated number 1 and number 2, are as follows: "We, the undersigned residents and voters of Lawrence township, Marion county, Indiana, do hereby remonstrate against the granting of a license to John M. Ludwig to sell intoxicating, spirituous, vinous, or malt liquors in less quantities than five gallons at a time, with the privilege of allowing the same to be drank on the premises, in said township, as described in his application, in the town of Oaklandon." "We, the undersigned residents and legal voters of Lawrence township, Marion county, State of Indiana, do hereby remonstrate against the granting of license by the county commissioners to John M. Ludwig, to sell intoxicating, spirituous, vinous, or malt liquors in less quantities than five gallons at a time, with the privilege of allowing the same to be drunk on the premises, in said township, described in his application, in the town of Oaklandon, in the county of Marion, State of Indiana."
The first contained the names of 196 legal voters of said Lawrence township, and the second contained the names of 137 of the legal voters of said township. The names to both remonstrances constituted a total of 333, which, as hereinafter shown, were a majority of all the legal voters of said township. The names of the remonstrators to the remonstrance number 1 were all signed thereto by Perry C. Apple, pursuant to the authority or power invested in him by a written instrument or document denominated a "Power of Attorney" duly signed, executed, and acknowledged by all of the remonstrators whose names said Apple thereafter subscribed to said remonstrance. This instrument, by which Apple was constituted as the attorney or agent of the remonstrators whose names were subscribed to remonstrance number 1, omitting the signatures and certificate of acknowledgment, is as follows:
The names of the voters subscribed to remonstrance number 2 were all signed thereto by M. M. Hindman, pursuant to the authority and power invested in him by the remonstrators under the provisions of three instruments or documents duly executed and acknowledged by the voters, whose names he thereafter subscribed to said remonstrance number 2. Each of these instruments or documents, omitting the signatures and certificate of acknowledgment, is as follows:
Appellant in his verified motion filed in the circuit court to reject or strike out the remonstrances in question, alleged that Apple and Hindman had no authority to sign the names of the remonstrators to the remonstrances filed in the office of the auditor of Marion county, and that these documents were not signed and filed pursuant to any authority. Before appellant filed his motion to strike out and reject the remonstrances, it was agreed by the parties in open court "that M. M. Hindman signed the names of all the parties to said remonstrance purporting to be signed by John Smith and others (being remonstrance number 2), and that before said Hindman so signed said names each of the three powers of attorney had been executed; that the persons whose names were signed to said remonstrance by said Hindman are the same persons whose names are signed to said powers of attorney executed to said Hindman." It was further agreed Thereupon the motion of appellant to strike out and reject said remonstrances was submitted to the court upon the verified motion under the above agreement, and the court overruled the same, to which ruling appellant excepted. On the trial of said cause appellant read in evidence his application for a license, proof of publication of his notice, and also the notice, and introduced certain witnesses who testified that he was of the age of thirty-eight years, a legal voter of Lawrence township, in Marion county, and had been such legal voter since the 1st day of January, 1900; that he was a man of good moral character, not in the habit of becoming intoxicated, and fit to be entrusted with a license for the sale of intoxicating liquors; and thereupon the same facts, as previously stated, and agreed to by the parties in open court, were introduced and read in evidence. Thereupon appellees offered to read in evidence the said powers of attorney previously mentioned, to which appellant objected for the following reasons: (1) That they were not sufficient to confer any authority upon the said M. M. Hindman to sign the names of the parties executing the same, or any of them, to the remonstrance against appellant upon his application to sell intoxicating liquors; (2) that the power to remonstrate against the granting of a license to sell intoxicating liquors upon such remonstrance as is in question in this case is a power delegated to the citizens of the township by the legislative department of the State, and can not be by them delegated...
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