Wagner v. The Town of Garrett
| Decision Date | 27 March 1889 |
| Docket Number | 13,568 |
| Citation | 20 N.E. 706,118 Ind. 114 |
| Parties | Wagner et al. v. The Town of Garrett |
| Court | Indiana Supreme Court |
From the DeKalb Circuit Court.
The judgment is affirmed, with costs.
W. L Penfield, for appellants.
E. D Hartman and L. Covell, for appellee.
The town of Garrett complained of Wagner and Zeek for having violated sections 1, 4 and 7 of one of the general ordinances of the town, which made it unlawful for any person, either directly or indirectly, to sell any spirituous, vinous, malt or other intoxicating liquors in a less quantity than a quart at a time, within the corporate limits, without being duly licensed. It is charged in the complaint that the defendants violated the above sections by selling intoxicating malt liquor and whiskey to persons named, in a less quantity than a quart, on several days named, without having first obtained a license so to do, according to the provisions of the ordinance, a copy of which is attached to and made a part of the complaint. A penalty of fifty dollars is prescribed for each and every violation of the ordinance.
In a complaint predicated upon a town ordinance, it is sufficient to aver that the ordinance was duly adopted by the board of trustees of the town, and to set out in or with the complaint so much of the ordinance as relates to the action or prosecution. Clevenger v. Town of Rushville, 90 Ind. 258; Vinson v. Town of Monticello, ante, p. 103. It is averred that the ordinance violated is "attached to and made a part of the complaint," and we find from the record that a copy was so attached and filed. The ordinance violated gives the right of action, and is, therefore, so far the foundation of the suit as that a copy filed with the complaint will be looked to in considering whether a demurrer was correctly overruled, without other averments than those above set out. The complaint was sufficient.
It is next contended that the ordinance is void, because it makes provision for the granting of licenses to sell within the corporate limits only to such persons as have procured and hold a license from the board of commissioners of DeKalb county. Hence it is argued, since section 5314, R. S. 1881 authorizes the county commissioners to grant licenses only to male inhabitants of the State, the ordinance results in an unjust discrimination against women and non-residents.
Assuming for the purposes of this case, that only male inhabitants of the State are entitled to obtain license to retail intoxicating liquors in a less quantity than a quart--Ex Parte Laboyteaux, 65 Ind. 545; Murphy v. Board, etc., 73 Ind. 483--we are nevertheless constrained to hold, since it appears that the defendants are male inhabitants of this State, and, therefore, presumably entitled to a license if they had chosen to make application therefor, that they can not thus become the champions of others who are supposed to be unjustly discriminated against. If we should grant that women and non-residents have equal constitutional rights, in respect to engaging in the sale of intoxicating liquors, with male inhabitants of the State, it might follow that as to those who were injuriously affected, or against whom the ordinance discriminates, it would be invalid, while as to those to whom the ordinance assumes to grant a special privilege it would be entirely valid. Since women and non-residents have so far waived any constitutional right they may have in respect to selling intoxicating liquors, we content ourselves for the present with holding that as the appellants are confessedly of those who enjoy the monopoly which the ordinance secures, they must take the privilege with the burdens which attend it. When a case arises in which a woman or a non-resident is refused a license because of sex or non-residence, we will consider the question. Courts will not listen to those who are not aggrieved by an invalid...
To continue reading
Request your trial