Simpson v. State ex rel. Eisler

• Decision Date: 26 November 1912
• Docket Number: 22,212
• Citation: 99 N.E. 980,179 Ind. 196
• Parties: Simpson, Treasurer, v. State of Indiana, ex rel. Eisler et al
• Court: Indiana Supreme Court

99 N.E. 980

179 Ind. 196

Simpson, Treasurer, v. State of Indiana, ex rel. Eisler et al

No. 22,212

Supreme Court of Indiana

November 26, 1912

Rehearing Denied January 29, 1913.

From Lake Superior Court; Johannes Kopelke, Judge.

Action for mandate by the State of Indiana, on the relation of Sigmund Eisler and others, against Ernest C. Simpson Treasurer of the City of Gary. From a judgment for relator the defendant appeals.

Reversed.

Hodges & Ridgely, for appellant.

McAleer Bros. and McGirr & Bretsch, for appellees.

OPINION

Cox, J.

This was an action for mandate brought under the act of March 6, 1911 (Acts 1911 p. 541), which abolished the writ of mandate and provides that the causes of action theretofore remedial by means of such writs shall exist and be remedial by complaint and summons, in the name of the State on relation of the party in interest, as other civil actions. This appeal involves a construction of § 23 of the act approved March 4, 1911 (Acts 1911 p. 244), known as the Proctor Law, which section reads as follows: "Every person, firm or corporation to whom a license for the sale of intoxicating liquors at retail or any renewal thereof is granted, shall, before making any sales of intoxicating liquors under such license, or renewal, pay into the treasury of said township, city or incorporated town, the license fees as follows, to wit: That if such premises are located within the corporate limits of any city of the first and second classes, or within four miles thereof, the city shall charge a license fee of three hundred ($ 300) dollars; if within the corporate limits of any other city or within two miles of such corporate limit, the sum of two hundred ($ 200) dollars; and if within the corporate limits of any incorporated town or within two miles of the corporate limits thereof, the sum of one hundred and fifty ($ 150) dollars; if located without the corporate limits of any city or incorporated town and not within the distance from such city or incorporated town as hereinabove provided, the sum of fifty ($ 50) dollars shall be paid into the treasury of the township: Provided, That the common council of any city or the board of trustees of any incorporated town may increase such license fee as follows: In cities of the first and second classes, or within four miles thereof, and in any other city or within two miles thereof, to an amount not exceeding five hundred ($ 500) dollars; and in any incorporated town or within two miles thereof to an amount not exceeding three hundred ($ 300) dollars. But no such city or town shall have any power so to increase such fees unless the same be done within thirty days from the time this act takes effect: Provided further, That where such premises are so located as that the sum to be paid by any such licensee as herein provided will be payable to more than one city or town, such sum shall be paid to the city or town in such county nearest such premises, and where such premises are located in any city or town no sum or sums shall be paid to any other city, and no city or incorporated town shall hereafter have the right in any manner to charge or collect any license fee for the sale of intoxicating liquors in excess of the amounts fixed or authorized by this act."

On March 20, 1911, within thirty days from the time the act took effect, the city of Gary, then a city of the State of the fourth class, provided by ordinance duly enacted that the license fee to be exacted under the authority of § 23 should be the maximum sum of $ 500. On February 19, 1912, the common council of the city passed an ordinance which was duly approved by the mayor and which purported to repeal the former ordinance by which the city had fixed the license fee at $ 500. On May 6, 1912, the relator, Eisler, was granted a license to sell intoxicating liquors at retail in the city of Gary by the board of commissioners of Lake County and on May 7, 1912, he produced and exhibited his county license to the controller and to the city treasurer, tendered $ 201 and demanded a city license. The demand was refused and this action was to compel these officers to accept the sum named and issue to the relator a city license. They demurred to the complaint of the relator, which was based upon the facts above stated, on the ground that the complaint did not state facts sufficient to state a cause of action. Wherein the complaint failed to state facts sufficient was pointed out in a memorandum which was a part of the demurrer in accordance with the act concerning proceedings in civil cases approved March 4, 1911 (Acts 1911 p. 415); see State, ex rel., v. Bartholomew (1911), 176 Ind. 182, 95 N.E. 417. It was that the common council of the city of Gary had no authority to repeal the ordinance which fixed the city license fee at $ 500. This demurrer was overruled and this action of the trial court presents the only question involved in the appeal.

In an effort to sustain the action of the lower court, counsel for appellee relator seem to rest their cause on two propositions: (1) that the common council of the city of Gary, having been given authority to enact an ordinance fixing the license fee for the sale of liquors within the limits of its jurisdiction, this delegated authority carried with it by implication the power to repeal the ordinance; (2) that the repealing ordinance was within the grant of power made to the common council of every city of the State by clause 40 of § 53 of the act concerning municipal corporations approved March 6, 1905 (Acts 1905 p. 219, § 8655 Burns 1908). It is true that the general rule is, that power to enact ordinances implies power also to repeal them. 28 Cyc. 381; McQuillen, Mun. Ord. § 199; Horr & Bemis, Mun. Police Ord. § 60; 2 Dillon, Mun. Corp. (5th ed.) § 584; Welch v. Bowen (1885), 103 Ind. 252, 2 N.E. 722; Swindell v. State, ex rel. (1895), 143 Ind. 153, 163, 42 N.E. 528, 35 L. R. A. 50. But like most general rules there are exceptions to it. It applies ordinarily, of course, to all ordinances which have been passed pursuant to a general grant of discretionary or regulatory authority over the subject of the grant. It will not apply where the ordinance has been enacted under a narrow, limited grant of authority to do a single designated thing in the manner and at the time fixed by the legislature, and which excludes the implication that the common council was given any further authority over the subject than to do the one act.

The primary and controlling inquiry leads to a solution of the question, What was the intention of the legislature? Was it intended by the provisions of the section under consideration to limit the authority of city councils over the fees for city liquor licenses to the one act specifically authorized? That intention...