McClanahan v. Breeding
| Decision Date | 10 June 1909 |
| Docket Number | No. 21,332.,21,332. |
| Parties | McCLANAHAN v. BREEDING et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wabash County; A. H. Plummer, Judge.
Application by George P. McClanahan for a liquor license, to which Ed Breeding and others filed a remonstrance. From a judgment for remonstrators, the applicant appeals. Affirmed.
D. F. Brooks, for appellant. Fred I. King, for appellees.
Appellant gave the statutory notice, and filed his application before the board of commissioners of Wabash county February 5, 1908, for a license to sell intoxicating liquors in Lagro township. Appellee Breeding and 474 other voters of the township filed a remonstrance January 3, 1908, against granting any license, by and through all attorney in fact. On February 5th 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 remonstrantors 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 motion for a new trial, judgment against him, denying license.
The only error assigned is in overruling 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 was signed and filed December 29, 1905, by 399 of the 475 persons whose names were signed to the remonstrance filed January 3, 1908, and 381 is a majority of the legal voters of the township, as shown by the last preceding election, and both remonstrances were signed and filed, under the same power of attorney. The contention of appellant is that the attorneys in fact were without authority to execute the remonstrance filed January 3, 1908, for the reasons: First, that the power of attorney as to 399 of the remonstrators had been executed for more than two years; second, that the power had been extinguished by the remonstrance of December 29, 1905; and, third, 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 remonstrance against the granting of liquor licenses (Burns' Ann. St. 1908, § 8332). 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. & Eng. Encyc. (1st Ed.) 871, and cases there collected. When addressed to subject-matters of a statute, or matters of substantive law, the statute, or law, enters into them as parts of them. Stults v. Zahn, 117 Ind. 297, 20 N. E. 154;Pennsylvania Co. v. Clark, 2 Ind. App. 146, 27 N. E. 586. Their construction will be controlled by the language used, taken in connection with the intention taken 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, 83 Ky. 251;White v. Furgeson, 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 are to be construed against the donor when third persons are interested, in case of doubt; but a strained construction should not be employed to defeat or embrace authority not intended. Muth v. Goddard, 28 Mont. 237, 72 Pac. 621, 98 Am. St. Rep. 553.
Two inquiries present themselves: First, 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? And, second, 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 will consider the last proposition first, for, if a continuing power cannot be created, the first proposition becomes immaterial.
The statute provided for a remonstrance by a majority of the voters, both against individual applicants and against 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 upon application for license and remonstrance is a judicial proceeding, a civil action. State v. Gorman (Ind.) 85 N. E. 763;Castle v. Bell, 145 Ind. 8, 44 N. E. 2, and cases cited. And voters may remonstrate against the individual or the business, through an attorney in fact. Cain v. Allen, 168 Ind. 8, 79 N. E. 201, 896;Jones v. Alexander, 167 Ind. 395, 79 N. E. 368. That the proceeding cannot be ex parte, but each applicant has a right to be heard upon the remonstrance. Cain v. Allen, supra; Kunkle v. Abell, 167 Ind. 434, 79 N. E. 753;Anderson v. Weber, 39 Ind. App. 443, 79 N. E. 1055. 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, of course 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 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, 168 Ind. 631, 80 N. E. 632, 14 L. R. A. (N. S.) 787, 120 Am. St. Rep. 385;Cleveland, etc., Co. v. Harrington, 131 Ind. 426, 30 N. E. 37;Welsh v. State, 126 Ind. 71, 77, 25 N. E. 883, 9 L. R. A. 664;Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989; Black, Intoxicating Liquors, §§ 24, 31, 33.
The state, or the public, cannot be said to be parties to proceedings to obtain or prevent liquor licenses, and hence no question of public policy is involved in the inquiry. It is a purely private...
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