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Ludwig v. Cory.

date of the filing of such remonstrance. 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 sale of liquors made by him the same as if such sale were made without license. The number to constitute a majority of voters herein referred to shall be determined by the aggregate vote cast in said township or city ward for candidates for the highest office at the last election preceding the filing of such remonstrance.

In Cochell v. Reynolds, 156 Ind. 14, an attempt was made to obtain a decision of this court in regard to the right of the legal voters of a township or ward to exercise their right of remonstrance under this section through a duly appointed and constituted agent; but the question was left undecided for the reason that, in that case, the matter of remonstrating or not remonstrating under the authority conferred by the power of attorney was left wholly to the discretion of the agent. In the course of the opinion in that appeal, Baker, J., said: “To each voter is committed the right to decide whether or not he will oppose any or all applications. He may be hostile to the commerce and determine that he will resist every application. He may favor a well regulated traffic and conclude to thwart only those applicants he deems unfit."

In the appeal of Castle v. Bell, 145 Ind. 8, the question in respect to the right of voters of a township to remonstrate, under $7278 Burns 1901, $5314 Horner 1901, through an attorney, against the granting of a license to sell intoxicating liquors, on the ground of immorality or unfitness of the applicant, was presented and decided. It was affirmed in that appeal, as had been previously affirmed by this court, that a proceeding before the board of commissioners to obtain a license to sell intoxicating liquors under the liquor law of 1875 was a judicial proceeding, in the nature of a civil action, which might be prosecuted or defended in person or by attorney, and the right of a voter or

Ludwig v. Cory.

voters to remonstrate through an attorney at law was sustained.

The Nicholson law of 1895, as we have said, is supple mental to the liquor law of 1875, and it in no more manner deprives a voter or voters of a township, wherein an applicant for a license desires to sell intoxicating liquors, of the right or privilege to remonstrate under $7278 Burns, supra, being section 3 of the liquor law of 1875, on the grounds of immorality or unfitness of the applicant. Under $9, supra, of the "Nicholson law,” in case a majority of the voters desire to oppose the granting of a license, they are relieved of the burden of basing their remonstrance on the grounds of immorality or unfitness of the applicant, and are not required to assign any cause whatever for their opposition to the granting of the license. A remonstrance filed under said $9, 97283i Burns 1901, has no regard whatever for the merits of the application. It will operate to defeat and bar the applicant who is fit to be intrusted with a license, in like manner as it does one who is unfit. When the board of commissioners, upon a hearing, finds that such a remonstrance was signed by a majority of the legal voters of the township or ward, as the case may be, and that the same was filed with the auditor of the county within the time prescribed by the statute, the power or jurisdiction of the board in the matter of the application in the particular case is thereby terminated, and the board can proceed no further therein, but must dismiss the application at the cost of the applicant. State v. Gerhardt, 145 Ind. 439, 33 L. R. A. 313; Massey v. Dunlap, 146 Ind. 350.

The proposition is evident, we think, that when the voters avail themselves of the privilege to remonstrate under $9 of the act of 1895, they thereby become, to an extent at least, adverse parties to the applicant in the particular proceedings for a license, as do those who remonstrate for the reason of his unfitness. Of course, the former interpose their remonstrance for the single purpose of ousting the board of

Ludwig v. Cory.

commissioners of its jurisdiction over the matter, and by this means defeating the granting of the license. If they fail, however, on this issue, they have no standing before the board, under their remonstrance, to assail the fitness of the applicant. While a remonstrance filed in pursuance of $9 can not be said to perform the office of an answer to the petition of the applicant or to serve to call in question his fitness, nevertheless it may be considered as a pleading or document in the proceeding which challenges and defeats, by reason of its own legal force and effect, the jurisdiction of the board of commissioners. When filed with the auditor and presented to the board, it informs both the latter and the applicant that its purpose is to oust the jurisdiction of the tribunal in the particular case, and thereby deprive the applicant of a hearing on the merits of his application. This is the issue which the remonstrance tenders. When appellant gave the required notice of his purpose to apply to the board of commissioners for a license, he, in effect, instituted his proceeding or action, and thereby, in a legal sense, invited the legal voters of Lawrence township to remonstrate either upon the grounds that he was unfit, or under $9, supra, as they might deem proper. If the appellees in this appeal, or any of their number, had desired to avail themselves of the privilege to remonstrate under $7278 Burns 1901, they, by virtue of the holding of this court in Castle v. Bell, 145 Ind. 8, could have exercised such right through the agency of another, and by this method have made themselves adverse parties to the applicant in the proceedings in question. In our judgment, no sufficient reasons can be urged why a different rule should be enforced when the remonstrance is under $9, supra, and goes to the jurisdiction of the board, than is applicable when it relates or applies to the fitness of the applicant, as it did in the appeal of Castle v. Bell, supra. The board of commissioners is a tribunal of the people, and in respect to all matters or proceedings therein in which any of them are in

Ludwig v. Cory.

terested or authorized to appear, in the absence of any provision of law to the contrary, they certainly have the authority to exercise such right, either in person or through the agency of another, whether such agent be a lawyer or a common layman. The contention of appellant's learned counsel, however, is that the statute in question creates a species or right of self-government, to be exercised by the voters as they may judge to be for their best interests, and hence it is asserted that they cannot delegate such power to another to be exercised for them. It is true that they cannot delegate this particular privilege or right to remonstrate, conferred upon them by the legislature, to another, to be exercised by him at his mere caprice or discretion, as was the case in Cochell v. Reynolds, 156 Ind. 14. But there is nothing in the statute conferring the privilege to remonstrate which either expressly or impliedly inhibits the voters from appointing and constituting some competent person as their special agent, and direct him to carry into effect their protest against the granting of a license to any and all persons who may thereafter apply, in order to engage in the sale of intoxicating liquors in their township or ward. Certainly the statute conferring the right is not of such a character or nature as to render the exercise of the power conferred through the agency of some one competent to act as an agent antagonistic to the principles of public policy. Neither is there anything in the nature or character of the authority conferred upon the voters which renders the same so sacred or peculiarly personal to them that the performance of the act of remonstrating in their names and for them can not be delegated. We recognize nothing in the power conferred which prevents it from being ruled by the maxim of the common law which affirms that whatever a person may do of his own right he may do by another. Of course, there are well recognized exceptions to this rule, which assert that where the act to be performed is of such a peculiarly personal nature or character that the performance thereof

Ludwig v. Cory.

ought not and cannot be delegated, such as making a will or contracting marriage, etc. See Wharton on Agency, $21.

The exercise of the right of remonstrating under the statute in controversy is not in the nature of exercising a right to vote against the liquor traffic in general. The right or privilege conferred is that of permitting the voters of a township or ward, after an applicant for a license has instituted his proceedings, to register their opposition through a written remonstrance against granting him a license to retail liquors, without assigning any reasons for their opposition. Consequently, when the agents of appellees in this case, under the authority given them, subscribed the names of their principals, appellees herein, to the remonstrances involved, and placed the same on file in the office of the auditor, they did not thereby cast the votes of appellees against the traffic of intoxicating liquors, but they simply registered, as they were directed to do under the power of attorney, the opposition of appellees against granting the particular license to appellant, and thereby tendered a special issue relating to the jurisdiction of the board, to be determined by that body, subject to an appeal by the aggrieved party to a higher court. If the question was in respect to the right of any of the appellees to appoint and employ some attorney at law of their choice to appear in any or all of the courts of justice in Marion county, and defend them in any and all actions or suits that might thereafter be instituted against them, and to sign for them all necessary answers and pleadings in making their defense, certainly such right could not be successfully controverted. Under the provisions of the power of attorney involved in the case at bar, the parties designated and constituted as the attorneys or agents of appellees herein were, in effect, directed to register, through the written remonstrance, the protest of each of their principals against the granting of a license to every applicant that might thereafter apply, and

VOL. 158–38

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