Rowland v. City of Greencastle

• Decision Date: 07 January 1902
• Docket Number: 18,882
• Citation: 62 N.E. 474,157 Ind. 591
• Parties: Rowland v. City of Greencastle
• Court: Indiana Supreme Court

62 N.E. 474

157 Ind. 591

Rowland v. City of Greencastle

No. 18,882

Supreme Court of Indiana

January 7, 1902

From Putnam Circuit Court; S. M. McGregor, Judge.

Action by city of Greencastle against Daniel B. Rowland to recover penalty for violation of city ordinance.

Reversed.

H. C Lewis, B. F. Corwin, J. E. Lamb, J. T. Beasley, W. W. Woollen and Evans Woollen, for appellant.

T. T Moore, G. C. Moore and J. S. McClary, for appellee.

OPINION

Dowling, J.

This action was commenced before the mayor of the city of Greencastle. The complaint charged the appellant with keeping and maintaining a room for the sale of spirituous and other intoxicating liquors to be used upon the premises where sold, within the residence or surburban portion of the said city, and outside of the boundaries of the business district thereof, in violation of an ordinance of said city adopted February 8, 1898. From a judgment against him in the mayor's court, the defendant appealed to the Putnam Circuit Court. A plea in abatement was held insufficient. A demurrer to the complaint and a motion to strike out parts of it, were overruled. An answer in denial, together with four special answers, were filed by the defendant. Demurrers to the second, third, fourth, and fifth paragraphs of answer were sustained. A trial in the circuit court resulted in a finding and judgment against the defendant. Errors are assigned upon the rulings of the circuit court on the demurrers to the pleadings, and on the motion for a new trial.

The proper construction of the act of 1895 (Acts 1895, p. 180, § 3541 Burns 1901, spec. 13), by which the ordinance is supposed to be authorized, and the validity of the ordinance itself, are the principal questions to be determined on this appeal.

The act referred to provides that the common council shall have power to enforce ordinances. "(13) To license, regulate, and restrain all shops, inns, taverns, or other places where intoxicating liquors are kept for sale, to be used in and upon the premises, and in regulating, restraining and licensing such inns, taverns, shops or places aforesaid, they shall have the power to designate the room, building or structure where such liquors may be sold, and may exclude such sales from the surburban or residence portion of such city, and confine the places where such sales may be made, to the business portion of such city, and may direct the arrangement and construction of the doors, windows and openings of the particular room in such building where such sales may be had, or such intoxicating liquors be drunk, and may direct the location, arrangement and construction of the bar kept therein, and the interior arrangement and construction of such room, and may direct what games may be carried on therein, and may forbid the keeping or use of wine rooms."

In pursuance of the authority understood to be conferred upon it by this statute, the common council of the city of Greencastle, on February 8, 1898, enacted the following ordinance:

"Section 1. Be it ordained by the common council of the city of Greencastle, Indiana, that the business portions of said city of Greencastle, Indiana, are hereby defined to be and declared to exist only within the territory included within the following boundaries, to wit: All that part of said city which is bounded on the north by Columbia street of said city, on the west by Market street, on the south by Walnut street, and on the east by College avenue street of said city. All the residue of the territory of said city is hereby declared to be residence or surburban portions thereof, and the sale or keeping of intoxicating liquors for sale to be used in and upon the premises is hereby prohibited, within said residence or suburban portion * * * under the penalties hereinafter prescribed."

"Section 3. And be it further ordained by the common council of the city of Greencastle, Indiana, that it shall be and is hereby made unlawful for any person or persons, or corporation, to keep or maintain any place, shop, room, or building for the sale, bartering or giving away, or the keeping of any spirituous, vinous, malt or other intoxicating liquors to be used in and upon the premises where sold, bartered or given away, at any point or place within said suburban or residence portion of said city of Greencastle, Indiana, as defined in the first section of this ordinance; but the keeping or maintaining of all such places is hereby confined to said business portions of said city, as herein defined in the first section of this ordinance; and any person violating any of the provisions of this section, or of any other section of this ordinance, shall, on conviction of such offense before the mayor of said city be fined in any sum not less than $ 10 nor more than $ 100, for each such offense, and no license from Putnam county, Indiana, or said city of Greencastle, Indiana, to sell intoxicating liquors shall constitute a defense to any action founded on this ordinance."

A fourth section of the ordinance declared it unlawful to keep or maintain any room, etc., for the keeping, etc., of intoxicating liquors to be used upon the premises where sold, within the suburban portion of the city of Greencastle, as defined in the first section of the ordinance, and affixed a penalty for any violation of said section four.

The trial court held the ordinance valid, and the complaint sufficient. It decided, also, upon the pleadings and proof, that the defendant had no right to show, by way of defense, that his saloon was not in the residence or surburban portion of the city, but, in fact, in the business portion, although not within the boundaries of that district, as declared by the ordinance.

In regulating, restraining, and licensing places where intoxicating liquors were kept for sale to be used upon the premises, the act of 1895 authorized the common council to exclude such sales from the suburban or residence district, and to confine the places where such sales might be made to the business portions of such city. The statute did not require the common council to fix the boundaries of the business portion of the city, neither did it prohibit them from doing so. It may have been thought by the legislature that, in some cases, it would be practicable to...