White v. Prifogle

• Citation: 44 N.E. 926,146 Ind. 64
• Decision Date: 13 October 1896
• Docket Number: 17,817
• Parties: White et al. v. Prifogle et al
• Court: Supreme Court of Indiana

44 N.E. 926

146 Ind. 64

White et al. v. Prifogle et al

No. 17,817

Supreme Court of Indiana

October 13, 1896

Original Opinion of June 19, 1896, Reported at: 146 Ind. 64.

OPINION

Jordan, J.

Appellee asks for a rehearing in this cause, and insists that we were wrong in holding that the trial court erred in sustaining the action of the remonstrators in withdrawing their names from the remonstrance.

Appellee made his application for a license to sell intoxicating liquors at the September term, 1895, of the board of commissioners of the county of Union. His counsel concede in their brief that it fully appears from the record that these remonstrators did not attempt to exercise their right to withdraw therefrom until Friday, August 30, 1895. This was too late for the remonstrators, under the law, to withdraw their names from the remonstrance which was then on file in the County Auditor's office. The Friday immediately preceding the Monday on which a regular session of the board of commissioners begins, is the last day upon which a remonstrance under section 9 of the act of 1895 (Acts of 1895, p. 248), can be filed against an application made at that session for a license to retail intoxicating liquors. Flynn v. Taylor, 145 Ind. 533, 44 N.E. 546. It follows therefore that the preceding Friday is the first day of the three days' period, and we held in State v. Gerhardt, 145 Ind. 439, 44 N.E 469, that if the right to withdraw from a remonstrance was not exercised prior to the beginning of the first day of this period, that it no longer existed. It is further shown by the bill of exceptions that after these voters had been by the court permitted to withdraw from the remonstrance, that thereby the number remaining thereon was reduced below the required majority, and for this reason the court, on motion of the appellee, over the objections and exceptions of appellants, struck out and dismissed the remonstrance, and by its judgment granted a license to appellee.

It is also substantially stated in the bill that the right of these persons to withdraw was the "only question submitted to the court at said time for its determination," and that the court "adjudged that said parties had the right and power to withdraw from said remonstrance, to which action of the court the defendants excepted." While the record is somewhat in confusion, and does not present all the questions as it should, and by no means can it be...