Shaffer v. Stern
| Decision Date | 07 April 1903 |
| Docket Number | 20,043 |
| Citation | 66 N.E. 1004,160 Ind. 375 |
| Parties | Shaffer v. Stern et al |
| Court | Indiana Supreme Court |
From Harrison Circuit Court; E. A. Ely, Special Judge.
Proceeding by Charles F. Shaffer to obtain a license to sell intoxicating liquors in which Herman J. Stern and others filed a remonstrance. From a judgment sustaining the remonstrance, applicant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.
Affirmed.
E. B Stotsenburg, J. H. Weathers and M. W. Funk, for appellant.
G. W Self, William Ridley and R. S. Kirkham, for appellees.
This proceeding was brought by appellant, under § 7278 Burns 1901, § 5314 R. S. 1881 and Horner 1901, to obtain a license to sell intoxicating liquors in the town of Corydon Harrison township, Harrison county, Indiana, in a less quantity than five gallons at a time. § 7283 Burns 1901, § 5318 Horner 1901, Acts 1897, p. 253. The board of commissioners and the court below on appeal refused the license, and dismissed the application, on the ground that a majority of the legal voters of said Harrison township had remonstrated against granting said license to appellant, under § 7283i Burns 1901, § 5323i Horner 1901, being § 9 of the act known as the Nicholson law (Acts 1895, p. 248).
The remonstrance in this cause was filed on Friday, August 30, 1901, and the board of commissioners met in regular session on Monday, September 2, 1901. It is claimed by appellant that said remonstrance, under § 9 of the Nicholson law, was not available, because not filed on or before Thursday, August 29, 1901. This court has held that a remonstrance under said § 9 may be filed on or before the Friday immediately preceding the Monday on which the regular session of the board of commissioners begins. White v. Prifogle, 146 Ind. 64, 65, 44 N.E. 926; Flynn v. Taylor, 145 Ind. 533, 534-536, 44 N.E. 546.
It is next insisted that the remonstrance was insufficient because it is not shown that it was signed by a majority of the legal voters of the ward in the town of Corydon, in which appellant desired to sell intoxicating liquors. The remonstrance was signed by a majority of the legal voters of Harrison township, and this, under said § 9, supra, deprived the board of commissioners, and the court below on appeal, of jurisdiction to grant a license to appellant. If the application is to sell intoxicating liquors in an incorporated or unincorporated town, a remonstrance by a majority of the legal voters of the township in which the applicant desires to sell is all that is required to deprive the board of commissioners of jurisdiction to grant the same. It is only where the applicant desires to sell intoxicating liquors in the ward of a city that a remonstrance by a majority of the legal voters of said ward is required. Massey v. Dunlap, 146 Ind. 350, 352-355, 44 N.E. 641.
The remonstrance in this case was not signed by the voters in person, but by one acting under the authority of a written instrument executed by said voters. Appellant insists that the remonstrance was void...
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