McClanahan v. Breeding
| Decision Date | 10 June 1909 |
| Docket Number | 21,332 |
| Citation | 88 N.E. 695,172 Ind. 457 |
| Parties | McClanahan v. Breeding et al |
| Court | Indiana Supreme Court |
From Wabash Circuit Court; A. H. Plummer, Judge.
Application by George P. McClanahan for license to retail liquors against which Edward Breeding and others remonstrate. From a judgment for remonstrants, the applicant appeals.
Affirmed.
D. F Brooks, for appellant.
Fred I King, for appellees.
Appellant gave the statutory notice, and on February 5, 1908, filed his application before the Board of Commissioners of the County of Wabash for a license to sell intoxicating liquors in Lagro township. By and through an attorney in fact, appellee Breeding and 474 other voters of the township filed a remonstrance on January 3, 1908, against the granting of any license. On February 5 appellant filed a verified answer that the remonstrance was void and without legal force, and that the attorney in fact was wholly without authority from the remonstrators or any of them authorizing him to execute said remonstrance. There was a trial before the board of commissioners, a finding and judgment against appellant, an appeal to the circuit court, where the answer was refiled, a trial and finding had, and over a motion for a new trial, judgment against him, refusing a license.
The only error assigned is the overruling of appellant's motion for a new trial. It appears from the evidence that the remonstrance was signed by an attorney in fact, under the following power:
Under this authority, a remonstrance, filed on December 29, 1905, was signed by 399 of the 475 persons whose names were signed to the remonstrance filed January 3, 1908. As shown by the last preceding election, 381 voters constituted a majority of the legal voters of the township. Both remonstrances were signed and filed under the same authority.
The contention of appellant is that the attorneys in fact were without authority to execute the remonstrance filed January 3, 1908, for the reasons: (1) That the power of attorney as to 399 of the remonstrators had been executed for more than two years; (2) that the power had been extinguished by the remonstrance of December 29, 1905; (3) that the power vests a discretion in the attorneys in fact, as to when, or whether at all, they shall file remonstrances.
On the part of appellees it is contended that the instrument contemplates the repeated exercise of the power, and that there is no legal inhibition against so doing when, and as often as, it may be necessary to accomplish the desired result.
The question for decision depends upon the construction of the power of attorney, taken in connection with the statute respecting remonstrances against the granting of liquor licenses. § 8332 Burns 1908, Acts 1895, p. 248, § 9. Powers or letters of attorney, in respect to their construction, are governed by the rules respecting the construction of written instruments in general. 18 Am. and Eng. Ency. Law, 871, and cases there collected. When addressed to subject-matter of a statute, or matters of substantive law, the statute or law enters into them as parts of them. Stults v. Zahn (1889), 117 Ind. 297, 20 N.E. 154; Pennsylvania Co. v. Clark (1891), 2 Ind.App. 146, 27 N.E. 586.
Their construction will be controlled by the language used, taken in connection with the intention of the donor and the object to be accomplished under the general doctrines of agency. The intention, not the letter, should control. The instrument should be so construed as to effectuate the object, if it can be ascertained. Commonwealth v. Hawkins (1885), 83 Ky. 246; White v. Furgeson (1902), 29 Ind.App. 144, 150, 64 N.E. 49. They are to be restricted in their construction to the purposes they are intended to accomplish, according to their import and language, but not to the extent of defeating those purposes, and in case of doubt, are to be construed against the donor when third persons are interested; but a strained construction should not be employed to defeat or embrace authority not intended. Muth v. Goddard (1903), 28 Mont. 237, 72 P. 621, 98 Am. St. 553.
Two inquiries present themselves: (1) Does the instrument by its terms, or from the objects sought to be attained, or from the intention to be gathered from it, purport to be a continuing power? (2) Can such power be a continuing one, in view of the provisions of the statute, or, if a continuing grant, is it in contravention of public policy? We consider the last proposition first, for if a continuing power cannot be created, the first proposition becomes immaterial.
The statute provides for a remonstrance by a majority of the voters, against both the individual applicants and the business itself, and, when exercised, prohibits the individual in the one case, and the business in the other, from being licensed for a period of two years. This proceeding, an application for license to which a remonstrance was filed, is a judicial proceeding--a civil action. State v. Gorman (1908), 171 Ind. 58, 85 N.E. 763; Castle v. Bell (1896), 145 Ind. 8, 44 N.E. 2, and cases cited.
The proceeding cannot be ex parte, but each applicant has a right to be heard upon the remonstrance. Cain v. Allen (1907), 168 Ind. 8, 79 N.E. 201; Kunkle v. Abell (1906), 167 Ind. 434, 79 N.E. 753; Anderson v. Weber (1907), 39 Ind.App. 443, 79 N.E. 1055.
Voters may remonstrate against the individual or the business, through an attorney in fact. Cain v. Allen, supra; Jones v. Alexander (1906), 167 Ind. 395, 79 N.E. 368.
It is disclosed that, as to each remonstrance against the business, there must be a hearing as to any and all applicants within the two years the remonstrance is to run, and in case of remonstrance against the individual a hearing as to each.
It is admitted that, at the end of the two-year period, the voters have the right of remonstrance against the business itself, and so on indefinitely, each two years. If they can do so, they can, as we have seen, do so through an attorney in fact. But there is also a distributive power of remonstrance against individuals, and this extends to all applicants. It is argued that the statute, having fixed the life of the remonstrance at two years, evinces a policy of requiring the expression of the sentiment of the voters biennially, in analogy to the expression of the popular will by biennial elections, and that a new expression is required, and that on grounds of public policy this ought to be so. The power of regulation of the liquor business is referable to the police power, and that power is unlimited, and a continuing one, and one that cannot be surrendered. Schmidt v. City of Indianapolis (1907), 168 Ind. 631, 14 L. R. A. (N. S.) 787, 120 Am. St. 385, 80 N.E. 632; Cleveland, etc., R. Co. v. Harrington (1892), 131 Ind. 426, 30 N.E. 37; Welsh v. State (1890), 126 Ind. 71, 77, 9 L. R. A. 664, 25 N.E. 883; Boston Beer Co. v. Massachusetts (1877), 97 U.S. 25, 24 L.Ed. 989; Black, Intox. Liquors, §§ 24, 31, 33.
The State or the public cannot be said to be parties to the proceedings to obtain, or prevent the obtaining of, liquor licenses, and hence no question of public policy is involved in the inquiry. It is a purely private controversy under the existing statutes. State v. Gorman, supra; Castle v. Bell, supra; List v. Padgett (1884), 96 Ind. 126.
Public policy is a question of law, and not of fact. Greenhood, Public Policy, 123. The statute does not undertake to make any declaration on the subject of the public policy of the matter, but gives a right to individuals, as such, to invoke a statute, and no legislative power is delegated to them thereby. They invoke a statute by the filing of a remonstrance containing their objections, and upon these the law makes its own action depend. Locke's Appeal (1873), 72 Pa. 491, 13 Am. Rep. 716; Black, Intox. Liquors, § 45.
The proposition should not be overlooked that the voters do not suspend the operation of the statute, or determine whether the law is in force in a particular locality, for it is a general law, and in force throughout the State, and the only question is whether, as private individuals, they will avail themselves of its provisions. State v. Gerhardt (1896), 145 Ind. 439, 33 L. R. A. 313, 44 N.E. 469; Black, Intox. Liquors, § 45.
The "public policy," of the law is that principle which holds that no subject can lawfully do that which has a tendency to be...
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State ex rel. Sights v. Edwards
... ... State ex rel. Anderson v. Brand, 1937, 214 Ind. 347, ... 5 N.E.2d 531, 7 N.E.2d 777, 13 N.E.2d 955, 110 A.L.R. 778; ... McClanahan v. Breeding, 1909, 172 Ind. 457, 88 N.E ... 695; Simons v. Kosciusko Building, Loan & Savings ... Ass'n, 1913, 180 Ind. 335, 103 N.E. 2; Dollman ... ...