State ex rel. Kelley v. Bonnell

• Decision Date: 25 June 1889
• Docket Number: 14,985
• Parties: The State, ex rel. Kelley, v. Bonnell
• Court: Indiana Supreme Court

21 N.E. 1101

119 Ind. 494

The State, ex rel. Kelley, v. Bonnell

No. 14,985

Supreme Court of Indiana

June 25, 1889

From the Montgomery Circuit Court.

Judgment affirmed.

J. R Courtney, for appellant.

W. T Brush, for appellee.

OPINION

Elliott, C. J.

The relator seeks to compel the treasurer of the city of Crawfordsville to accept one hundred dollars as a license fee under the ordinances of the city, in order that he may demand of the clerk the license required of persons engaged in the business of selling intoxicating liquors. The license issued to the relator does not expire until the 7th day of September, 1889, and the tender was made on the 24th day of May.

The complaint is bad. The municipal authorities were not bound to issue a license to a person having an unexpired license, and the treasurer had no authority to receive the money tendered by the relator. It may well be that, in the interval between the 24th of May and the 7th of September, the city might desire to change its ordinances to conform to the act of March 11th, 1889. Elliott's Supp., section 1684. It was proper, therefore, for the treasurer to decline to embarrass or complicate action by receiving the money tendered him. Or it may be that during that time changes may take place which would render it improper to issue a license to the relator. At all events, the relator has no such clear legal right as is essential to sustain a petition for a mandate.

The grant of a license would not preclude action by the municipal authorities, for a license is not a contract. A license may be changed or even annulled by the supreme legislative power of the State whenever the public welfare demands it. McKinney v. Town of Salem, 77 Ind. 213; Martin v. State, 23 Neb. 371, 36 N.W. 554; Brown v. State (Ga.), 82 Ga. 224, 7 S.E 915; State v. Isabel, 40 La. Ann. 340, 4 So. 1. A license is a restrictive special tax, imposed for the public good, and in the exercise of the police power of the State. Emerich v. City of Indianapolis, 118 Ind. 279, 20 N.E. 795; Mugler v. Kansas, 123 U.S. 623, 31 L.Ed. 205, 8 S.Ct. 273; Burnside v. Lincoln County Court, 86 Ky. 423, 6 S.W. 276; State v. Mullenhoff, 74 Iowa 271, 37 N.W. 329. As the power to grant, withhold or annul licenses to sell liquor is an exercise of the police power, it follows that no limitation can be placed upon its exercise by any statutory provision. It is a power incapable of surrender or...