White v. Furgeson

• Decision Date: 23 May 1902
• Docket Number: 4,066
• Citation: 64 N.E. 49,29 Ind.App. 144
• Parties: WHITE ET AL. v. FURGESON
• Court: Indiana Appellate Court

64 N.E. 49

29 Ind.App. 144

WHITE ET AL. v. FURGESON

No. 4,066

Court of Appeals of Indiana

May 23, 1902

From Jackson Circuit Court; Ralph Applewhite, Special Judge.

George H. Furgeson made application for a license to sell intoxicating liquors to which a remonstrance was filed. The board refused the license and the applicant appealed. From a judgment reversing the order, E. T. White and others remonstrants, appeal.

Reversed.

D. A Kochenour, for appellants.

OPINION

WILEY, J.

This cause was transferred from the Supreme Court. Appellee applied to the board of commissioners of Jackson county for a license to sell intoxicating liquors at retail, under the provisions of the act of 1895, Acts 1895, p. 248. Notice of his intention to apply for license was given, and the application was made to the July session, 1900, of said board. June 28th and 29th, certain remonstrances against the granting of such license were filed in the auditor's office. Upon these remonstrances the board of commissioners refused the license and dismissed the application. From this action of the board, appellee appealed to the court below. Upon appeal, appellee, over the objection and exception of the remonstrators, was permitted to amend his application by inserting therein the words, "on the first floor." With the insertion of these words, the description of the room where the liquors were to be sold was as follows "In the front room on the first floor of the story and a half frame building situated on" a certain lot (describing it).

In the circuit court demurrers were addressed to the application and remonstrances and overruled. Appellants also moved the court to strike out the amendment which appellee was permitted to make to his application. The cause was submitted to the court for trial, resulting in a general finding for appellee that he was entitled to have issued to him a license as prayed for in his application. Appellants moved for a new trial. Their motion was overruled, and judgment pronounced on the finding.

All the rulings adverse to appellants, to which reference has been made, are assigned as errors, but the real question presented by the record may be considered and decided under questions presented by the motion for a new trial.

There were 263 names signed to the remonstrance, and it was admitted upon the trial that those whose names appeared thereon were a majority of the legal voters of the township in which appellee was seeking a license to sell intoxicating liquors, and that the remonstrance was timely filed. Of these 263 remonstrators, thirty-six signed the remonstrance in person, and the remaining 227 signed by their attorneys in fact. The trial court held the remonstrances filed by the attorneys in fact were inoperative, and refused to admit them in evidence. While the remonstrance may be considered as a whole, it was in fact filed in two parts, by two separate attorneys in fact.

We are confronted with this naked and important proposition: Can legal voters, who are authorized to remonstrate against the issuing of a license to any applicant to sell intoxicating liquors at retail, delegate that authority to another, by regularly constituting him their agent, by executing to him a power of attorney? An answer to this inquiry must be decisive of any debatable question presented by the record, and settle a question in which the public in general is interested.

This is the first time that a question of this exact character has reached a court of last resort in this State. We have, therefore, no "ancient landmarks of the law" to guide us, and must reach a conclusion as one of first impression. So much of § 9 of the act of 1895 as is pertinent to the right of a legal voter to remonstrate 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 sold within the limits of said township, or city ward it shall be lawful thereafter for such board of commissioners to grant such license to such applicant therefor during the period of two years from the date of the filing of such remonstrance." § 7283i Burns 1901.

It is quite clear that this statute gives the right to any legal voter in the township or ward where the applicant desires to sell, to remonstrate against the granting of a license to "any applicant." No ground or reason for remonstrating is required. It is a simple right conferred upon the legal voter by the legislature, in restraint of the liquor traffic, and such right of remonstrance has nothing whatever to do with the fitness of the applicant. If a majority of the legal voters remonstrate it becomes a prohibition to granting a license. By this provision of the statute the legislature did not intend to enlarge the right of local self-government, but to put it in the power of the majority to exercise such right, which is an inherent right under the Constitution, and in popular government.

The statute having given to the legal voter this right, can he delegate such right to another by a properly executed power of attorney? This depends, to some extent, at least, upon the instrument delegating the power. The several powers of attorney, as shown by the record in this case, are identical, except as to names, and that their full purport may appear, we append a copy of one, as follows: "Power of attorney. Know all men by these presents that the undersigned being each and severally a legal voter of Owen township, in Jackson county, State of Indiana, does, each for himself, severally, hereby nominate, constitute, and appoint Isaac Fish, who is a resident and legal voter of said township, his true and lawful attorney in fact, for him, and in his name, place, and stead, to execute, sign, and place on file with the auditor of said county his remonstrance in writing against the granting of a license to any applicant, by name, for the sale of spirituous, vinous, malt, or other intoxicating liquors under the laws of the State of Indiana, with the privilege of allowing the same to be drunk on the premises where sold, within the limits of said township; and in like manner to execute and file such remonstrance against any one, by name, who shall give notice as required by law of his intention to apply for such license as aforesaid within said township. And the undersigned, each and severally, hereby authorize and empower said Isaac Fish to execute as aforesaid a general remonstrance for him as aforesaid, and as provided in section 9 of an act of the General Assembly of the State of Indiana approved March 11, 1895 (Acts 1895, p. 251), against any person whomsoever who may give notice as required by law of his intention to apply for license as aforesaid to sell intoxicating liquors as aforesaid at any point whatever in the limits of said township, and successively against each of such applicants, by name who may give notice as aforesaid. And the undersigned, each for himself, and severally, hereby doth ratify and confirm each and every act which his said attorney shall lawfully do as herein authorized, binding himself hereby in as full and ample a manner as he himself could do were he personally present and did the same; reserving always the power of revocation within the limits of the statute aforesaid. In testimony whereof, the undersigned, each for himself, has set his hand and seal this 27th day of Dec., 1899." Of the three powers of attorney, the first was executed December 27, 1899; the second and third, January 30, 1900.

It must be conceded that there is no statutory authority giving the right to a legal voter to delegate to another, by letter of attorney, the right to sign his name to a remonstrance. If the right exists at all, it must rest upon the inherent right of one person to appoint or constitute another his agent to do a particular thing. Much of the business of the world is transacted by agents, or through agencies, representing their principals. It is a rule, recognized by all the authorities, that the acts of the agent, within the scope of his employment, are the acts of his principal, and the latter is bound by them. In the case we are now considering, all persons whose names appear on the remonstrance had the right, under the statute, to remonstrate against the application of appellee to sell intoxicating liquors in the township where they resided. Instead of exercising that right in person, they elected to confer upon others the power to represent them, and sign the remonstrance in their names. The language of the powers of attorney is so plain that it needs no construction. It is manifest that the persons executing them intended to confer upon their respective attorneys in fact the continuing authority, until that authority should be revoked, to remonstrate, in their names, against the granting of a license to "any applicant" who might apply for such license under the statute.

The attorneys in fact are not given any authority to discriminate in favor of or against any applicant. A general power is granted simply to remonstrate against any applicant, and each successive applicant. It might be well, in this connection to inquire as to the character and nature of a power of attorney, and it may be defined as: "A power or letter of attorney is the instrument by which the authority of one person to act in the place and stead of another as attorney in fact is set...