State ex rel. Pollard v. Superior Court of Marion County, Room 3, 29206

• Decision Date: 30 November 1954
• Docket Number: No. 29206,29206
• Citation: 122 N.E.2d 612,233 Ind. 667
• Parties: STATE of Indiana On The Relation of Russell POLLARD and Roy Burton, D/B/A Pollard Burton-Beverage Distributors, Relators, v. The SUPERIOR COURT OF MARION COUNTY, ROOM 3, Norman E. Brennan, Judge of The Superior Court of Marion County, Room 3, Respondents.
• Court: Indiana Supreme Court

Page 612

122 N.E.2d 612

233 Ind. 667

STATE of Indiana On The Relation of Russell POLLARD and Roy Burton, D/B/A Pollard Burton-Beverage Distributors, Relators, v. The SUPERIOR COURT OF MARION COUNTY, ROOM 3, Norman E Brennan, Judge of The Superior Court of Marion County, Room 3, Respondents.

No. 29206.

Supreme Court of Indiana.

Nov. 30, 1954.

Warren Barnett, Princeton; Cook, Mendenhall & Bose and Charles W. Cook, Jr., Indianapolis, for relators.

Max M. Plesser, Indianapolis, for respondents.

EMMERT, Judge.

This is an original action for an alternative writ of mandamus to compel the respondent court to expunge from the order book an entry dissolving a restraining order, and to mandate said court to grant a change of judge. We issued the alternative writ as prayed.

On July 1, 1954, relator filed a verified complaint in the Superior Court of Marion County Room 2 for a restraining order, temporary injunction and a permanent injunction to enjoin the Indiana Alcoholic Beverage Commission and the members thereof from enforcing an order revoking a permit to sell alcoholic beverages held by relators. On June 30th relators had filed notice of appeal from the order with the Commission, and an appeal bond as required by § 12-445, Burns' 1942 Replacement Supp., and § 12-921, Burns' 1942 Replacement. A restraining order was issued on July 1st, and July 12th at 10:00 A.M. was set for a hearing on the temporary injunction.

On July 9th the Indiana Alcoholic Beverage Commission and the members thereof, by the Attorney General, filed a special appearance and motion to dissolve the restraining order on the ground that the court had no jurisdiction of the subjectmatter. On July 12th there was a vacation entry that the relators filed a motion to consolidate the action for the restraining order the temporary injunction with the appeal, which had been filed with the general term of the Superior Court of Marion County on July 9, 1954.

On July 14th, a vacation order book entry discloses relators filed an affidavit for change of venue from Judge Norman E. Brennan. On July 16th Judge Norman E. Brennan, dissolved the temporary restraining order.

Respondent filed an unverified return which attempts to set forth certain action by the respondent court and judge, but the same is not evidenced by any certified copies of the order book entries either with the return, or with the petition here. However, the relators in order to prevail here, must rely upon the strength of their own cause stated, and not on the omissions of the respondents. Rule 1-12 provides in part that, 'When a change of judge is sought in vacation, the opposite party shall have three days' notice thereof.' The record does not disclose any compliance with this rule, and assuming without deciding that the relators would otherwise be entitled to the change of judge, in the absence of compliance with this rule they are not entitled to mandate the change. State ex rel. Allen v. Fayette Circuit Court, 1948, 226 Inc. 432, 81 N.E.2d 683.

Respondents in their return allege, as a matter of law, that the Superior Court of Marion County and the Judge thereof had no jurisdiction of the subject-matter to issue the restraining order. If the restraining order was issued without such jurisdiction, there could be no duty on the respondent judge to vacate his order dissolving the restraining order.

'A court is a creature of the law, instituted for the determination of questions of law and fact under defined restrictions and limitations. The territorial limits of its power, the subjects and classes over which its power may be exercised, the terms upon which it may put its power into action, are as firmly and clearly established as the right to adjudicate when authorized to do so; and, though a court of general jurisdiction, it must proceed in the manner and upon the conditions imposed by the law, and an assumption of jurisdiction over a subject or a person, upon terms denied by the law, is as unwarranted and futile as the assumption of jurisdiction without its territorial limits. A departure from the limits and terms of jurisdiction is usurpation of power that imparts no validity whatever to its judgments and decrees. Works, Jur. p. 28, § 10, and authorities cited. Hence, we have the generally accepted rule that, when a court proceeds without jurisdiction of the subject-matter, its judgment is wholly void; and, adopting as our own the words of the court in Sheldon's Lessee v. Newton, 3 Ohio St. [494, on page] 498, 'it is equally unimportant how technically correct and precisely certain in point of form its record may appear, its judgment is void to every intent, and for every purpose, and must be so declared by every court in which it is presented.'' Lowery v. State Life Ins. Co., 1899, 153 Ind. 100, 102, 54 N.E. 442.

'It is well and firmly established that the jurisdiction and power of courts of equity to issue restraining orders is limited to the protection of civil and property rights. State ex rel. Fry v. Superior Court of Lake County, 1933, 205 Ind. 355, 186 N.E. 310; State ex rel. Feeney v. Superior Court of Marion County, 1934, 206 Ind. 78, 188 N.E. 486.' State ex rel. Indiana Alcoholic Beverage Comm. v. Marion Circuit Court, 1943, 221 Ind. 572, 574, 49 N.E.2d 538. This rule has been consistently followed by this court since the Fry case, supra. State ex rel. Zeller v. Montgomery Circuit Court, 1945, 223 Ind. 476, 62 N.E.2d 149; State ex rel. Indiana Alcoholic Beverage Comm. v. Superior Court of Vanderburgh County, 1951, 229 Ind. 483, 99 N.E.2d 247; State ex rel. Indiana Alcoholic Beverage Comm. v. Superior Court of Marion County, Ind.1954, 122 N.E.2d 9.

"'To sell intoxicating liquor at retail is not a natural right to pursue an ordinary calling.' Black Intox. Liq., §§ 48." State v. Gerhardt, 1896, 145 Ind. 439, 462, 44 N.E. 469, 476, 33 L.R.A. 313. ¹ 'The permit then is strictly a creature of statute, and the rights of the permittee are such, and such only, as the statute gives.' State ex rel. Indiana Alcoholic Beverage Comm. v. Superior Court of Marion County, Ind.1954, 122 N.E.2d 9, 10, supra.

Since the opinion of Chief Justice Elliott in McKinney v. Town of Salem, 1881, 77 Ind. 213, it has been well settled in this state that the issuance of a license to sell intoxicating liquor is an exercise of the police power of the state to protect the public morals, and confers no contract or property right. This opinion stated, 'The granting of a license is not the execution of a contract, and the counsel for appellants are in error in assuming, as they do, that a license issued pursuant to a general law of the State is a contract. The enactment of a law regulating the liquor traffic is an exercise of the police power of the State. The police power is a governmental one, and permits obtained under laws enacted in its exercise are not contracts. In enacting laws for the regulation of the business of retailing liquors, a sovereign power is asserted, and its exercise does not confer upon any officer authority to make a contract which will abridge or limit this great and important attribute of sovereignty. Sovereigns may make contracts which, under our constitution, will preclude them from impairing vested rights by subsequent legislation, but this result never follows the exercise of a purely police power. The right to legislate for the promotion and security of the public safety, morals and welfare, can not be surrendered or bartered away by the Legislature. Stone v. Mississippi, 101 U.S. 814 [25 L.Ed. 1079; Boston] Beer Co. v. Massachusetts, 97 U.S. 25 [24 L.Ed. 989]; Patterson v. Kentucky, 97 U.S. 501 [24 L.Ed. 1115]; Boyd v. Alabama, 94 U.S. 645 [24 L.Ed. 302]; Freleigh v. State, 8 Mo. 606; Metropolitan Board, etc. v. Barrie, 34 N.Y. 657; Commonwealth v. Brennan, 103 Mass. 70; [Fell v. State,] 42 Md. 71. A license to retail liquor is nothing more than a mere permit; it is neither a contract nor a grant. The person who receives it takes it with the tacit condition and the full knowledge that the matter is at all times within the control of the sovereign power of the State.' 77 Ind. at pages 214, 215. 'It is to be borne in mind that the right to sell intoxicating liquors is not a natural and inherent or inalienable right, or a property or personal right. Atkinson v. Disher [1912, 177 Ind. 665], 98 N.E. 807; Gordon v. Corning [1910] 174 Ind. 337, 340, 92 N.E. 59; State [ex rel. Kelley] v. Bonnell [1889] 119 Ind. 494, 21 N.E. 1101.' State ex rel. Ferguson v. Board of Com'rs, etc., 1913, 179 Ind. 513, 515, 101 N.E. 813, 814. No rule in Indiana is better established than that a license to sell intoxicating liquors is neither a contract nor a property right. State ex rel. Kelley v. Bonnell, 1889, 119 Ind. 494, 21 N.E. 1101, supra; Moore v. City of Indianapolis, 1889, 120 Ind. 483, 491, 22 N.E. 424; Haggart v. Stehlin, 1893, 137 Ind. 43, 54, 35 N.E 997, 22 L.R.A. 577; State v. Gerhardt, 1896, 145 Ind. 439, 467, 44 N.E. 469, 33 L.R.A. 313; Nelson v. State, 1897, 17 Ind.App. 403, 406, 46 N.E. 941; State ex rel. Fry v. Superior Ct. of Lake County, 1933, 205 Ind. 355, 186 N.E. 310, supra; State ex rel. Zeller v. Montgomery C.Ct., 1945, 223 Ind. 476, 62 N.Ed. 149, supra; State ex rel. Indiana Alcoholic Beverage Comm. v. Superior Ct. of Vanderburgh County, 1951, 229 Ind. 483, 99 N.E.2d 247, supra; State ex rel. Ind. Alcoholic Beverage Comm. v. Superior Ct. of Marion County, Ind.1954, 122 N.E.2d 9, supra. ²

In determining whether there is a want of jurisdiction of the trial court in the class of cases involved, 'we will examine the complaint and the restraining order for the purpose of determining whether the subject-matter is within the jurisdiction of the court, and whether the court acted within its jurisdiction.' State ex rel. Fry v. Superior Court of Lake County, 1933, 205 Ind. 355, 362, 186 N.E. 310, 313, supra. ³ The jurisdiction of the trial court to issue the...