Massey v. Dunlap

• Decision Date: 22 September 1896
• Docket Number: 17,973
• Citation: 44 N.E. 641,146 Ind. 350
• Parties: Massey v. Dunlap et al
• Court: Indiana Supreme Court

44 N.E. 641

146 Ind. 350

Massey v. Dunlap et al

No. 17,973

Supreme Court of Indiana

September 22, 1896

Rehearing Denied Dec. 2, 1896.

From the Gibson Circuit Court.

Reversed.

L. C Embree, for appellant.

M. W Fields and T. R. Paxton, for appellees.

OPINION

Jordan, J.

Appellant was an applicant, at the regular March session, 1896, of the board of commissioners of the county of Gibson, for a license to sell intoxicating liquors in the Second ward in the city of Princeton, in said county.

A remonstrance in writing, under section 9 of an act of the legislature, approved March 11, 1895 (Acts 1895, p. 248), purporting to be signed by a majority of the legal voters of Patoka township, of said county, was filed with the county auditor, three days before the beginning of said regular session, whereby the remonstrators objected to the granting of a license to any applicant for the sale of spirituous, vinous, malt, or other intoxicating liquors, to be sold and drunk within the limits of said township, and also objected to the granting of such license to five specially mentioned applicants, including appellant. This remonstrance was sustained by the commissioners, and by virtue thereof a license was denied appellant, and upon an appeal and trial the circuit court found that said remonstrance was signed by a majority of the legal voters of said township of Patoka, and by reason thereof rendered a judgment dismissing the application at the cost of appellant. The principal errors assigned relate to the overruling of appellant's motion to strike out the remonstrance and in overruling his motion for a new trial.

The questions which the learned counsel for appellant urge upon us for consideration are:

1st. Is a remonstrance on the part of a majority of the legal voters of a township in which an incorporated city is situated sufficient, under the ninth section of the act in question, to defeat an application for a license to sell intoxicating liquors in a particular ward of said city?

2d. Does this section authorize two or more applicants to be joined and remonstrated against in the same remonstrance?

3d. What must be considered the highest office within the meaning of the last clause of section 9, and what election is meant or intended by said clause?

Section 9 of the act mentioned is as follows:

"If, three days before any regular session of the board of commissioners of any county a remonstrance in writing, signed by a majority of the legal voters of any township or ward in any city situated in said county shall be filed with the auditor of the county against the granting of a license to any applicant for the sale of spirituous, vinous, malt, or other intoxicating liquors under the law of the State of Indiana, with the privilege of allowing the same to be drunk on the premises where sold within the limits of said township, or city ward it shall be unlawful thereafter for such board of commissioners to grant such license to such applicant therefor during the period of two years from the date of the filing of such remonstrance. If any such license should be granted by said board during said period the same shall be null and void, and the holder thereof shall be liable for any sales of liquors made by him the same as if such sale were made without license. The number to constitute a majority of voters herein referred to shall be determined by the aggregate vote cast in said township or city ward for candidates for the highest office at the last election preceding the filing of such remonstrance."

The language of the section is: "If, etc., a remonstrance in writing, signed by a majority of the legal voters of any township or ward in any city, etc., shall be filed, etc., against the granting of a license, etc., to any applicant for the sale of spirituous, etc., liquors * * * with the privilege of allowing the same to be drunk on the premises where sold, within the limits of said township or city ward, it shall be unlawful," etc. This section mentions but two districts wherein the will of a majority of the legal voters thereof can defeat the granting of a license, to-wit: 1st. A township, and 2d, a city ward.

Under the act of 1875, an applicant for a license is required to give twenty days notice to the citizens of the township, town, city, or ward in which he desires to sell his liquors, and the privilege is granted to any voter of the township wherein he desires to operate his saloon, to remonstrate for cause against the granting of such license. Burns' R. S. 1894, section 7278 (R. S. 1881, 5314). It is perfectly clear, from the language of section 9, of the act of 1895, when considered in connection with the provisions of section 7278 (5314), supra, that when an application is made to obtain a license to sell intoxicating liquors within the boundaries of an incorporated city, it must be for the privilege to conduct such business in some particular ward of that city. In such a case, it is only the legal voters residing within that particular city ward that are authorized, under section 9, supra, to join in the remonstrance against the granting of the desired license to the particular applicant, and a majority of such voters will defeat the application.

But where the application is made for a license to sell intoxicating liquors at some designated place in a township, but which place is beyond the limits of an incorporated city therein, then the law contemplates and requires that a majority of the legal voters of such township, residing anywhere therein, shall remonstrate in order to defeat such application. It follows then that, in the case at bar, the remonstrance in question should have been confined to the voters of the second ward of the city of Princeton, that being the particular district in which the appellant desired to conduct his saloon, and it was necessary to show that a majority of the voters residing therein had signed the remonstrance, in order to thereby prohibit the board of commissioners in the first instance, or the circuit court upon appeal, from granting a license to the appellant. The general rule is, that where persons exercise a right, under a statute, they must bring themselves within its provisions. The will of the number of voters intended and required by the section of the statute in question must, in each particular instance, be expressed against a license being granted to a particular applicant. There is nothing in the record, in the case at bar, disclosing that any voter of the second ward, of the city of Princeton, joined in the disputed remonstrance, and possibly all of the remonstrators may have been voters residing without the limits of that ward.

In the case of State v. Gerhardt, 145 Ind. 439, 44 N.E. 469, this court said: "We are of the opinion that the remonstrance, provided for by section 9, has application only to some particular applicant, and does not contemplate a general remonstrance, but one directed against each individual who desires to secure a license." We still adhere to this view of the law, and are of the opinion that under a reasonable construction of the statute, it must be held that it does not authorize persons remonstrating to join two or more applicants in the same remonstrance. From the language of the law we do not think that the legislature intended to authorize what might be termed a "blanket" remonstrance, covering all applicants for a license at the same session of the board of...