In re Prohibit the Sale of Intoxicating Liquors

11 Ohio C.C. (n.s.) 351, 1908 Ohio Misc. LEXIS 199

• Court: Hamilton Circuit Court
• Decided: May 23, 1908
• Status: Published

Opinion

Under the act of May 15, 1906 (98 O. L., 68), the provision that “the mayor or judge shall examine the petition at a public hearing” requires a trial or investigation of the facts necessary to decide upon the sufficiency of the petition and in no event shall the petition be taken as prima facie evidence of such facts, except upon failure of any person or persons, who are electors of the district, to ask to be heard there.on.

1 The burden of proving such facts rests upon the petitioners; but if any elector wishes to withdraw his own or authorized signature from the petition, the burden falls upon him to prove to the mayor or judge that it was secured through fraud or misrepresentation.

The petition must be signed or authorized to be signed by as many qualified electors as equal a majority of the votes cast at the last regular municipal election in such residence district.

It is common knowledge in this jurisdiction that the two newspaper known as “The Cincinnati Daily Enquirer” and “The Cincinnati Daily Commercial Tribune” are of opposite party politics, hence the court will take judicial notice of that fact.

Of the thirty-eight petitioners who sought to withdraw their names from the petition upon the ground of misrepresentation that the liquor dealers intended to establish a saloon upon a lot near a church in such residence district, only fifteen were induced, according to their own testimony, to sign such petition by any misrepresentation of a present intention on the part of such dealers to locate a saloon near a church.

The statements made to the other twenty-three petitioners recording to their own testimony, rely upon such statements, and lated to facts, thA truth or falsity of which could be ascertained by reading the petition. Many of the petitioners did not, ac-none had a right to so rely.

We deem it unnecessary to weigh the evidence in rebuttal on the question of misrepresentations, because if we should find that the fifteen names were improperly counted, there were still enough remaining to equal a majority of the votes cast at the last regular municipal election.

The fifteen names above referred to are as follows:

Isaac J. Fieler, W. J. Williams, Chris. Seibert,, James Finn, Adolph Lukens, Fred Schillins, George Maft'ey, TIarry E. Shaffer, Peter ITeuel, John Doberrer, Jr., Fred Goetz, Clifford Campbell, George Huber and Philip Kuntz.

While the depositions jtaken during the progress of the trial were not and could not be filed in accordance with Section 5282, Revised Statutes, yet it appears from the whole record which is before us that no prejudice resulted to the plaintiff in error on that account.

The judgment will therefore be affirmed.