Cain v. Allen

Jordan, C. J. This cause and the other cases hereinafter mentioned were consolidated by order of court, and were all heard and considered together upon the argument of the respective counsel appearing for the several parties. Consequently the decision in this appeal will virtually rule and control in the determination of the other appeals. The causes consolidated are the following. No. 20,782; Regadanz v. Haines; No. 20,812, Jones v. Alexander; No. 20,820, Lanham v. Woods; No. 20,891, Kunhle v. Abell. In this case and in each of the other cases the question in regard to the constitutional validity and the construction of section nine of an act of the legislature approved March — 11 — 11, 1895 (Acts 1895, p. 248, §7283i Bums 1901), commonly known as the Nicholson law, as it is amended by an act approved February 15, 1905,- (Acts 1905, p. 7, §7283i Burns 1905), is presented for our determination. The facts in this appeal are as follows: Three days before the beginning of the regular June session, 1905, of the Board of Commissioners of the County of Owen, State of Indiana, what may be termed a general or “blanket” remonstrance against the granting of a license to retail intoxicating liquors in Washington township, Owen county, was filed with the auditor of the county by appellees herein. The remonstrance was addressed to the Board of Commissioners of the County of Owen, and, omitting the formal parts thereof and the names of the remonstrators, reads as follows: “We, the undersigned, legal voters in the township of Washington, in the county and State aforesaid, do hereby respectfully represent that we are opposed to the traffic in intoxicating liquors and we hereby object to the granting of a license to any person for the sale of intoxicating liquors in said township.” This remonstrance was filed under and in pursuance of said section nine as the same is amended. 'The names of appellees appear to have been subscribed thereto by Albert B. Milligan, under and through a power of attorney, duly executed to him and William M. Christ by each of the appellees herein. The appointment of Milligan and Christ and the authority conferred upon them to act for appellees in signing their names to a general remonstrance and filing the same was not conferred by a single instrument or document signed jointly by all of appellees, but was through and under several separate instruments, executed separately by each of the appellees. Each of these instruments so executed, omitting the formal parts, is as follows: “I, the undersigned, a resident and qualified voter in Washington township, Owen county, Indiana, do — 12 — hereby authorize, empower, and request William M. Christ and Albert B. Milligan, or either of them, to sign my name to any and all remonstrances against the granting of license to any and all applicants for the sale of intoxicating liquors in said township, and to sign my name to any and all remonstrance or remonstrances against the granting of a license to any person for the sale of intoxicating liquors in said township, and also properly to file said remonstrance or remonstrances with the auditor of said county and to present the same to the board of commissioners, and do hereby deliver this appointment to them for the purpose herein stated.” Ro person appears to have given notice of his intention to apply at said June session, 1905, of the board of commissioners for a license to retail intoxicating liquors in said Washington township, and no ap2)lication was filed at said session whereby such license was sought to be secured. At said June session of the board of commissioners appellees herein a23peared by their attorneys and presented to the board the remonstrance which had been filed with the county auditor, as heretofore stated. It was taken up and considered, and thereupon the board made and entered the following finding and order: “In the matter of a remon- ' strance against the selling of . Commissioners Court, intoxicating liquors, in Wash- June term, 190.5. ington township. * * * “And now the board, being fully advised in the premises, and the evidence being heard, finds that the above remonstrance was filed with the auditor of Owen county three days before the regular June session, 1905, being the present session of the board of commissioners of this county, to wit, on Friday, June 2, 1905. And it further appearing by the evidence, to the satisfaction of the court, that said remonstrance is signed by a majority of the legal voters of said Washington township, in said Owen county, on said date, it is therefore ordered and adjudged that it — 13 — shall be unlawful for, and this board of commissioners will not grant a license to, any person to sell 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 Washington township, during a period of two years from the date of filing such remonstrance, to wit, from June 2, 1905.” It appears that the appellant, Cain, was not in any manner a party to the proceedings at said June session, and no notice was given to him that the board was going to consider and take action upon the remonstrance at that session. At the September session, 1905, of the board of commissioners, appellant, having given the notice required by §7278 Burns 1901 (Acts 1875 [s. s.], p. 55, §3), an act of the legislature to regulate and license the sale of intoxicating liquors, to which we will refer hereafter as “the act of 1875” —applied to the board, under the provision of said statute, for a license to retail intoxicating liquors in said Washington township. On motion of the remonstrators the board dismissed his application and denied him the right to a hearing thereon and also the right to be heard as to whether the remonstrance in question at the time of the filing thereof had been signed by a majority of the legal voters of the township. From this decision he appealed to the Owen Circuit Court, wherein appellees renewed their motion to dismiss his application upon substantially the following grounds, namely: That the record of the board of commissioners discloses that three days before the June session, 1905, of the board, a majority of all of the legal voters of Washington township, in said county, had filed a remonstrance in the office of the county auditor, remonstrating against the granting of a liquor license to any person whatever, which remonstrance had ever since remained on file in the auditor’s office; that the board at that session had duly inquired into the matters and things alleged in the remonstrance, and had found that — 14 — it contained a majority of all tlie voters of the township, and thereupon entered of record its finding of that fact, and also an order upon the remonstrance declaring that no liquor license should he granted to any applicant to sell intoxicating liquors in said township during the period of two years after the date of filing the remonstrance; “that said order of the hoard still stands in full force and effect, unappealed from, a copy of which is a part of the papers, duly certified hy the auditor of said county, in this case.” The trial court appears to have denied appellant the right to a hearing upon his application and also the right tq controvert the question as to whether the remonstrance in controversy had been, at the time it was filed, signed hy a majority of the legal voters of A¥ashington township, and sustained the motion of appellees and dismissed the application and rendered judgment against appellant for costs. Erom this judgment he appeals and assigns errors, calling in question the ruling of the court in dismissing his application and denying him the right to a hearing in this proceeding. Counsel for appellees seek to sustain the decision of the court in dismissing appellant’s application and rendering judgment against him on the following grounds: (1) That a remonstrance under section nine as amended is an ex parte proceeding; that it raises no issue' between the remonstrators and ail applicant for license; that it concerns voters only; (2) . that the hoard of commissioners at the June session following the filing of the remonstrance had the right and power to pass upon its sufficiency, and, upon finding it to be sufficient, thereupon to order and adjudge that it he unlawful to grant a license in said township to any applicant for a period of two years from the date of the filing of the remonstrance; that, inasmuch as no appeal was taken hy appellant from this order of the hoard of commissioners, he had no standing in the commissioners’ court, and, consequently, had none in the circuit court on ap — 15 — peal. Counsel in this case, and in the other appeals heretofore mentioned, call in question the validity of section nine of the Nicholson law as amended by the act of 1905, supra, which is denominated the Moore law, on the ground that it is in direct conflict with sections twelve, twenty-five, and twenty-six of the bill of rights (Const., Art. 1, §§12, 25, 26), which declare (§12) that “every man, for injury done to him in his person, property, or reputation shall have remedy by due course of law.” (§25) “No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.” (§26) “The operation of the laws shall never be suspended, except by authority of the General Assembly;” and §23, article 4, which provides: “In all the cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State.” It also is asserted that the act is in conflict with §1, article 14, of the Constitution of the United States, which provides: “Nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It is also claimed that the section as amended is not covered by the title of the original act. We set out section nine as amended by the act in controversy (Acts 1905, p. 7, §7283i Burns 1905)'and have embraced in italics the material parts added by the amendment. “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 or against such granting to all applicants 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 — 16 — where sold within the limits of said township, or city ward, it shall be unlawful thereafter for such board of commissioners to grant license to any such applicant therefor during the period of two years from the date of filing of such remonstrance; or if such remonstrance shall he against all applicants then it shall he unlawful for said commissioners to grant a license to any applicant therefor during a period of two ’years from the date of the filing of such remonstrance against all applicants; if any such license should be granted by said board during said period, the same shall be null and void, and the holder thereof shall be liable for any sales of liquors made by him the same as if such sales were made without license, and such violator of the law shall he subject to arrest and punishment as if no license had heen issued. The number to constitute a majority of the voters herein referred to shall be determined by the greatest aggregate vote cast in said township or ward for candidates for any office at the last election preceding the filing of such remonstrance. Provided, however, that any remonstrance which is not directed personally against an individual, hut which is directed against all applicants, shall he separate and distinct, shall contain the name of no individual, hut shall he directed to the hoard of county commissioners directly against the issuing of any such license to any person during the said two years. And provided further, that the following forms of remonstrance shall he sufficient under the foregoing provisions of this section, viz.” 1. By virtue of the amendatory act, section nine as it originally existed is no longer a part of the Nicholson law, as it has been superseded by the amendment, and the latter now constitutes a part of that statute. An act amending a former law operates, as to matters and things thereafter occurring, in precisely the same manner as though the amendatory act had formed a part of the original statute at the time of its passage, and in its application to cases which may arise after the amendment has been made, the whole statute must have the same operation and — 17 — effect as it would have had it been reenacted- Walsh v. State, ex rel. (1895), 142 Ind. 351, 362, 33 L. R. A. 392, and cases cited; Pomeroy v. Beach (1898), 149 Ind. 511. 2. As preliminary to the question presented and urged in respect to the invalidity of the section here involved, it may be said that the rule is well settled that in a case where the validity of a statute is involved it becomes the duty of the court, if possible, to give the statute in question such an interpretation or construction as will avoid bringing it in conflict with the Constitution. As a general rule the presumption must always prevail that the legislature did not intend to usurp or assume power denied to it by the fundamental law. 3. — 18 — 4. — 17 — An examination of section nine as amended discloses that some of the principal provisions which it embraced, as originally enacted, are still retained unchanged. Especially is this true in respect to a special remonstrance directed against some particular person. The legal voters of a township or city ward, as the case may be, are by the amendment given the option to defeat by a special remonstrance, in like manner as provided by the original section, the issuing of a license to retail intoxicating liquors, under the act of 1815, supra, to some particular person to be named in the remonstrance; or by a general or “blanket” remonstrance to defeat the granting by the board of commissioners of such a license to any and all persons, without naming any individual in such general remonstrance. This latter document, when signed by the requisite number of voters and timely filed, is intended to cover or apply to any and all applicants who may apply under the act of 1815 for a license to retail liquor within the respective township or ward during a period of two years next succeeding the filing thereof with the auditor. It can plainly be seen that the provisions of section nine, which, prior to its amendment, provided for a special remonstrance directed against some particular — 18 — individual, have been reenacted and are incorporated into the section by the amendatory act. These s'ame provisions were considered, construed and the constitutional validity thereof sustained in the decision of this court in the appeal of State v. Gerhardt (1896), 145 Ind. 439, 33 L. R. A. 313, and in other cases in which the holding in that appeal is followed. To the doctrine or rule as announced and enforced in these decisions we still adhere, and recognize no sufficient reason for departing therefrom. It follows, therefore, that the provisions of the old section so reenacted by the amendatory act were at. the time of its passage impressed with the interpretation or construction accorded to them by this court in State v. Gerhardt, supra; Ludwig v. Cory (1902), 158 Ind. 582; Boomershine v. Uline (1902), 159 Ind. 500: Hoop v. Affleck (1904), 162 Ind. 564; and in other cases in which the decisions followed the holding in the Gerhardt case. As there is nothing in the statute to the contrary, we are justified in assuming that the- legislature, in the reenactment of these provisions, intended that they should hear the same construction placed upon them by the highest court of this State. Hilliker v. Citizens St. R. Co. (1899), 152 Ind. 86; Board, etc., v. Conner (1900), 155 Ind. 484. 5. Upon this view of the law it is evident that where the voters of a township or city ward see proper to defeat, by means of a special remonstrance, the granting of a license to some particular applicant, as- such right is still preserved in the amended section, the hoard of commissioners and the court on appeal from the decisions of that tribunal, in the event an appeal is taken, must still he controlled," in a proceeding to obtain a license, by the rule asserted in the cases last-above cited. In State v. Gerhardt, supra, in considering section nine as it then stood, this court said on page 470: “Ry section nine, another condition or restriction is imposed upon the jurisdiction of the hoard relative to granting a license to retail liquors to — 19 — any applicant, namely, the fact that a remonstrance against him, signed by a majority of the legal voters of the township or ward wherein he intends to engage in the sale of such liquors, has been filed with the auditor, three days before the beginning of the regular session of the board, at which the application for the license is to be presented. In the event this fact is found to exist, the jurisdiction of the commissioners over the matter, by virtue of the law, is terminated, and it is made unlawful for them to grant the license to the applicant. But, on the contrary, if this fact is found not to exist, the board can then proceed to inquire, according to law .and the evidence, into the fitness and right of the applicant to be intrusted with the desired license.” In the appeals of Ludwig v. Cory, supra, and Hoop v. Affleck, supra, the meaning of the law, the character of the remonstrance, and the procedure to be had thereunder before the board of commissioners in an application for a license, where a remonstrance against a particular applicant had been filed, were again considered and more fully amplified. In Hoop v. Affleck, supra, this court said: “The board of commissioners, being a creature of the legislature, has only such judicial power or jurisdiction as that body has seen proper to give, and may exercise that given only upon the terms and conditions prescribed. Under the Nicholson law the board of commissioners is empowered, as a court, to take cognizance of an application for license. If it finds that proper notice has been given, it must then take up the question of a remonstrance. If it is found that one has been timely filed, it then becomes its duty, under the law, to inquire and decide whether such remonstrance is in proper form and substance, and executed by a majority of the legal voters of the particular district. The authority to inquire and decide is both judicial power and jurisdiction. If it is found that the remonstrance is in due form and adequately signed, the finding, ipso facto, — 20 — defeats the further jurisdiction of the hoard in the same sense that an affirmative finding on a plea in abatement will defeat jurisdiction.” 6. At the time of the passage of the Nicholson law, in 1895, there were but four regular sessions of the board of commissioners in each year. In 1899, the law was changed, and thereby regular sessions were authorized, each beginning on the first Monday of each calendar month. Under this change in the statute applications for license might he presented monthly instead of quarterly, to the board of commissioners, and thereby a greater burden was cast upon the voters who desired to remonstrate against the granting of license to the particular applicant or applicants who might seek to secure license,, at such monthly sessions. It is manifest, therefore, that, to relieve the voters from being constantly on the alert for applications to be made, the legislature was induced to pass the amendatory act herein involved, thereby conferring upon said voters in the respective districts named, in addition to their right to file a special remonstrance, the right, if they desired to exercise it, of filing a general or “blanket” remonstrance against the issuing of a license by the board of commissioners to any or all persons, without designating therein any particular individual. Such a remonstrance, if signed by the requisite number of legal voters and timely filed, serves for a period of two years after its filing to confront and defeat each and every applicant for a license to retail intoxicating liquors within the prescribed district. 7. This remonstrance is not required to he filed with the board of commissioners, but is to be filed with the county auditor, who serves as the clerk of the board of commissioners and who, as such official, is charged with the custody and safe-keeping of such remonstrance. By the very force of the law this remonstrance is drawn into and becomes a document in each case — 21 — or proceeding instituted before the board of commissioners during said period of two years by an applicant for a license to retail intoxicating liquors under the act of 1875, supra,, and such applicant and the remonstrators become adverse parties in such proceeding, and each party is entitled to be accorded a hearing before the board, and in court, in case of appeal, the remonstrators, first, in support of their remonstrance, and second, the applicant in opposition thereto. If upon the evidence the board finds that the general remonstrance in question at the time of its filing was signed by the requisite number of legal voters of the particular district and was filed with the auditor within the time prescribed by statute, then the finding of such facts strips or deprives the board of any further jurisdiction in the, case, and it must dismiss the application. State v. Gerhardt, supra; Ludwig v. Cory, supra; Massey v. Dunlap (1896), 146 Ind. 350. 8. It will thereafter be unlawful to grant a license to the applicant in such proceeding for a period of two years next succeeding the filing of the general remonstrance; or, in other words, the law declares what, under the circumstances, shall be the consequences of such a finding, and the board of commissioners simply voices the mandate of the law by denying the applicant’s right to a license. The decision of the board in such case must be held to be an adverse adjudication of the applicant’s right to a license, and he, having had his day in court, with the privilege of controverting the remonstrance, has, under the law, no standing whatever to make another application for a license within such period of two years. If, however, the remonstrance is not sustained by the evidence, then the board of commissioners can proceed to hear the applicant in support of his application for a license. State v. Gerhardt, supra. — 22 — 9. — 21 — It would certainly be unreasonable to suppose or assume that'the legislature by the amendment in question intended — 22 — that the board of commissioners should be controlled by a procedure in case of a general remonstrance different from that which had been held by this court to apply and govern in a case upon a special remonstrance; or, in other words, that the general remonstrance provided by the amendatory act, when filed with the auditor, should be considered and held as instituting an ex parte proceeding over which the proper board of commissioners should assume jurisdiction, and thereupon determine the sufficiency thereof in advance of any and all applications for a license, and order and adjudge, as was done in the case at bar, that it should b„e unlawful for the board to grant a license to any person for the sale of intoxicating liquors during the period of two years, and that such order should preclude the board thereafter, during said period, from granting to any applicant for license the right to be heard in respect to the sufficiency or validity of the remonstrance. Such a construction of this statute possibly might afford grounds for the contention of appellant’s counsel that the act in question in its effect served to suspend the operation of the license law of 1875. 10. — 23 — 11. — 22 — It is an undisputed proposition that under our fundamental law it is not within the power of the legislature to confer upon the citizens of the State the right to . say whether the operation of an existing statute or law shall be suspended. It will be noted that the statute in question does not declare that the filing of a general remonstrance as therein provided shall thereafter render it unlawful for any person to apply to the board of commissioners for a license, but it is only declared to be unlawful .thereafter for that tribunal to grant a license to any applicant therefor, etc. The act presupposes, or rather recognizes, the right of pérsons thereafter to apply for a license to retail intoxicating liquors under the provisions of the act of 1875. A person, then, still having the right to apply to the board for a license, certainly, as incidental — 23 — thereto, must be accorded the right to a hearing upon all of the questions necessarily arising in the proceeding instituted by his application. The action of the board in assuming jurisdiction over the remonstrance herein, as shown, and in making the order thereon, was .wholly unwarranted by law. Consequently, as it had no jurisdiction over the matter, the proceedings had upon the remonstrance in question, and the order made therein, were a mere nullity. The law is well settled that in this State boards of commissioners are invested only with statutory powers, and they have no power to act except as is expressly or impliedly conferred upon them by statute. Gavin v. Board, etc. (1885), 104 Ind. 201; Hoop v. Affleck, supra. 12. It is certainly evident that the section as amended contains no provision upon which the power of the board of commissioners to assume jurisdiction over the remonstrance in. question, as it did, can be predicated, and counsel for appellees have been unable to cite us to any statute which either expressly or impliedly authorized the board to take action and consider the remonstrance in controversy before its jurisdiction in the premises was invoked in a proceeding on an application for a license to retail intoxicating liquors. It is manifest that the- construction which we give the provision of the act in controversy avoids bringing it in conflict with either the state or federal Constiution, for, under the law as herein construed, an applicant for a license under the statute of 1815 is given his day in court, as the law intends, to controvert and show, if he can, that the remonstrance in question is not signed by a majority of the legal voters of the particular district. Or, in other words, the right to show that the remonstrance is impressed with fraud for the reason, among others, that a part of the voters necessary to constitute the required majority were minors, and therefore not legal voters, or — 24 — that some were disqualified as voters upon other grounds, or that the names of some of the voters subscribed to the remonstrance were signed thereto without legal authority. 13. It would certainly be unreasonable to assume that the legislature, under the amendatory act, by authorizing the filing of a general remonstrance, intended thereby to deprive an applicant for a license of the right to controvert said document on the grounds hereinbefore mentioned, or for any other sufficient reason. Under the construction which we place upon the provisions of • the amendatory act it must follow, under the decision of this court in Ludwig v. Cory, supra, that the right of the voters to execute such general remonstrance, as in the case of a special remonstrance, through the agency of a power of attorney, is preserved by the amendment, and therefore must be upheld. 14. 15. 16. The title of the Nicholson law is sufficiently broad to embrace section nine as amended. It would appear to be unnecessary to consider in detail the constitutional validity of the amendatory act upon the various grounds assigned and urged by counsel; for, in view of the construction which we accord it, its validity, over substantially the same objections now urged, is fully sustained by the reasoning and decision of this court in State v. Gerhardt, supra. It may be said, however, that while the law recognizes intoxicating liquors as property entitled to its protection, nevertheless the right of ownership therein is subject to such regulations or restraints as are necessary to the protection of society and the public in general. Laws enacted to carry into effect such regulations or restrictions are passed by the legislature in the exercise of the police power of the State, and the extent to which these regulations or restraints may be carried is a matter within the sound discretion of the legislative department, except as may be restrained by some constitutional or fundamental law. — 25 — State, ex rel., v. Menaugh (1898), 151 Ind. 260, 266, 43 L. R. A. 408, and cases cited. 17. There is certainly, under the construction which we accord to the law, no sufficient reason or ground for asserting that it serves or operates to deprive any of our citizens of their property or liberty without due process of law, nor does it deny them the equal protection of the law. State v. Gerhardt, supra. 18. The question is raised and propounded—have voters who have signed a general remonstrance provided for by the section as amended, the right, at any time after the beginning of the first day of the three-day period prior to the commencement of the regular session of the board of commissioners, in which such a remonstrance has been filed with the auditor, to withdraw their names therefrom? This question, in our judgment, must be answered in the negative. The same rule in respect to this question which has been affirmed in respect to special remonstrances in the appeals of State v. Gerhardt, supra, and Sutherland v. McKinney (1897), 146 Ind. 611, is applicable and must control. In the case of State v. Gerhardt, supra, in considering the point, we said at page 473 : “But if this right [to withdraw] is not exercised prior to the beginning of the first day of this three days’ period, it no longer exists.” As previously said, a general remonstrance like the one here involved, signed by the required number of voters and filed with the auditor three days before the beginning of any regular session of the board of commissioners, stands and continues to operate against the granting of a license to any and all applicants for a period of two years from the date of its filing. Therefore, under the holding in the ease of State v. Gerhardt, supra—in which* the legislature in enacting the amendment appears to have acquiesced—it follows that all voters who have legally signed the same and who do not withdraw their names therefrom before the beginning of said three-day period, — 26 — cannot thereafter exercise such right, but must abide by the remonstrance for said period of two years. If voters who have legally signed a general remonstrance could exercise the right under the law to withdraw their names after ■ the beginning of the three-day period and thereby reduce the number of remonstrators below the requisite majority at a day so late that the necessary number could not he restored, then the voters, who in good faith had signed the paper, might he continually embarrassed. Such a result the law did not intend. 19. The sufficiency of the remonstrance and of the power of ¿ttorney employed by the remonstrants in this case, and in some of the other consolidated causes, is called in question. The remonstrance follows the form given in the amendatory act of 1905, and is certainly sufficient, as are also the documents employed to confer authority upon Milligan and Christ, or either of them, to sign the names of appellees to the general remonstrance here involved. It follows, from our holding, that the trial court erred in dismissing appellant’s application for a license, for which error the judgment is reversed, and the cause remanded to the lower court, with instructions to reinstate the case upon the docket and to overrule appellee’s motion to dismiss, and for further proceedings not inconsistent with this opinion.