The State v. Gerhardt

• Decision Date: 19 June 1896
• Docket Number: 17,742
• Citation: 44 N.E. 469,145 Ind. 439
• Parties: The State v. Gerhardt
• Court: Indiana Supreme Court

44 N.E. 469

145 Ind. 439

The State v. Gerhardt

No. 17,742

Supreme Court of Indiana

June 19, 1896

From the Vigo Circuit Court.

Reversed.

W. A Ketcham, Attorney-General, E. F. Ritter, S. M. Huston, F. E Matson, and Duncan, Smith & Hornbrook, for State.

S. R Hamill, Lamb & Beasley, Elliott & Elliott, Zollars & Worden, Stewart Bros., and Hammond, Baker & Daniels, for appellee.

Jordan J. Hackney and Jordan, Judges, dissent in part.

OPINION

Jordan, J.

This appeal, together with a number of other cases now pending in this court, involves the validity of an act of the general assembly, approved March 11, 1895, entitled an "Act to better regulate and restrict the sale of intoxicating, spirituous, vinous, and malt liquors," etc. Acts of 1895, p. 248. Some of these appeals also seek to have a judicial interpretation placed upon this statute as to the right of remonstrators to withdraw their names from a remonstrance, interposed by a majority of the voters in a township or ward against granting a license to an applicant. These cases, for hearing and determination, have been consolidated in this appeal. In order to more fully effectuate the purpose for which they were consolidated, the cardinal questions raised in all of them will be considered and decided in this opinion, and the decision herein, on the several propositions, will be controlling on the same questions presented by the other cases. It is better, perhaps, that we state the propositions that are presented by these series of cases and the sections of the statute under which they arise.

In the cause herein entitled, the appellee, Gerhardt, who had been duly licensed to sell intoxicating liquors, under the general license law of 1875, is charged by affidavit and information with having violated section two of the statute of 1895, supra, "by failing to provide for the sale of said liquors in a room, separate and apart from other business, but that he did unlawfully conduct the sale of groceries in the same room wherein the said liquors were retailed." In the appeal of the State v. Myers, No. 17,743, the appellee is charged in three counts with having violated sections two and four of the law in question. First. With failure to provide a room for the sale of intoxicating liquors separate from other business. Second. By keeping in the room where the liquors were sold certain devices for amusement, to-wit: six billiard tables, upon which certain named persons were permitted to play billiards for amusement. Third. That he maintained certain blinds and screens in his saloon so as to prevent the entire view of the interior from the street, during the hours in which the sale of intoxicating liquors is prohibited by law. In Zapf v. State, post, 696, the appellant is charged with violating section three of this act, by permitting certain mentioned persons, not members of his family, to enter and come into his saloon on a day upon which the sale of liquors was prohibited, to-wit: July 4, 1895. In Greille v. Wright, post, 699, in addition to other minor matters, the question is presented as to the right of certain remonstrators, under section nine of the act of 1895, to withdraw their names after the filing of the remonstrance and within the beginning of the three days' period allowed for filing the same. Others of these consolidated cases present also these questions: First. As to whether persons who have joined in a remonstrance, and after the same has been filed with the auditor, may be permitted by the board of commissioners to withdraw their names and thereby reduce the remonstrators below the number required by the statute. Second. As to whether the remonstrance is directed against a particular applicant, or generally against granting a license to any one. This statute, which is commonly denominated the "Nicholson Bill," differs in several essential features from any other law upon the subject of the sale of intoxicating liquors, heretofore passed by the legislature of this State. In consideration of the public interest, in a proper decision of the questions herein involved, as well as the interest of those who have appeared at the bar of this court, claiming to be aggrieved by reason of the enforcement against them of the provisions of an alleged unconstitutional law, we have given these questions such thought and review as the magnitude and importance thereof demand, and we now proceed to pass in judgment upon the same, stating the reasons which have led us to the conclusions reached.

We may first properly set out the title of the law in controversy, and also some of its principal provisions, or sections, in order that it may be more fully disclosed as to whether the act is open to the contentions or objections of the learned counsel for appellee, by which they seek to expose its alleged invalidity. The act is entitled as follows:

"An act to better regulate and restrict the sale of intoxicating, spirituous, vinous and malt liquors, providing penalties for violation of the same, providing for the enforcement thereof, and providing for remonstrance against the granting of license for the sale of the same and conferring jurisdiction upon police courts and justices of the peace, in cases of violation of the provisions of this act and other laws of the State on the subject of selling intoxicating liquors."

Section one, in substance and in the main, provides that all persons applying for a license to sell intoxicating liquors, under existing laws of this State, shall specifically describe and locate in the application the room wherein he desires to sell such liquors. That no license shall be granted to any other than a male person over the age of twenty-one years, who shall be of good moral character, and that he shall not be deemed to possess such character if within two years he shall have been adjudged guilty the second time of violating any of the provisions of the act. Sections two and three are as follows:

"Sec. 2. All persons holding license issued under the law of the State of Indiana, authorizing the sale of spirituous, vinous, malt or other intoxicating liquors in less quantities than a quart at a time, shall provide for the sale of such liquors in a room separate from any other business of any kind, and no devices for amusement or music of any kind or character, or partitions of any kind, shall be permitted in such room, provided, that nothing in the provisions of this act shall be construed to forbid the sale of cigars and tobacco in such place of business: And provided further, That if such applicant for license desires to carry on any other or different business, he shall state the same in his application for license, and the same may be granted or refused by the board of commissioners hearing such application and such permission shall be stated in the license if granted.

"Sec. 3. Any room where spirituous, vinous, malt or other intoxicating liquors are sold by virtue of a license under the laws of the State of Indiana, shall be so arranged that the same may be securely closed and locked, and admission thereto prevented and the same shall be securely locked and all persons excluded therefrom on all days and hours upon which the sale of such liquors is prohibited by law. It is hereby made unlawful for the proprietor of such a place and the business herein contemplated of selling intoxicating liquors, to permit any person or persons other than himself and family to go into such room and place where intoxicating liquors are so sold upon such days and hours when the sale of such liquors is prohibited by law. The fact that any person or persons are permitted to be in, or go in or out of such room upon any day or hour when the sales of such liquors are prohibited by law, shall be prima facie evidence of guilt upon trial of a cause charging the proprietor of such room with violating the law in the sale of such liquors upon such days or hours."

Section four, in substance, provides that any room where intoxicating liquors are sold by virtue of a license issued under the law of this State, shall be situated upon the ground floor of the building, and that said room front the street and be so arranged, either with window or glass door, that the interior thereof may be in view from said street, and that no screens, blinds, or obstructions to the view shall be placed or erected so as to prevent the entire view of said room from the street or highway, during the hours and days when the sales of liquors are prohibited by law. This section further provides that "upon conviction for the violation of this, or either of the foregoing sections of this act, the defendant shall be fined," etc., and that for a second conviction, the court may, and upon a third conviction shall, annul the license and all rights thereunder. Section five makes it a penal offense to suffer minors to loiter in a saloon, and section six forbids the sale to minors, for their own use or for that of any other person. Section seven prescribes the duties of peace officers, and section eight provides to whom permits may be issued, and for the refunding of the license fee in the event of the death or insanity of a person holding a license. Section nine provides for a remonstrance, and is as follows:

"If, three days before any regular session of the board of commissioners of any county, a remonstrance in writing, signed by a majority of the legal voters of any township or ward in any city situated in said county, shall be filed with the auditor of the county, against the granting of a license to any applicant for the sale of spirituous, vinous, malt or other intoxicating liquors, under the law of the State of Indiana, with the privilege of allowing the same to be drunk on the premises where...