In re Tilghman

88 A. 471, 27 Del. 301, 4 Boyce 301, 1913 Del. LEXIS 48

• Court: New York Court of General Session of the Peace
• Decided: September 24, 1913
• Status: Published

Opinion

Pennewill, C. J.,

delivering the opinion of the court:

There has been filed in the above-stated case a remonstrance containing the following general allegations, viz.:

“First. We are informed and believe that the said applicant is not a proper person as required by law to hold a liquor license.

“Second. We are informed and believe that the said applicant has permitted or suffered in or about such premises disorderly, riotous and lewd conduct.

“Third. We are informed and believe that the said applicant has permitted or suffered in or about such premises gambling.

“Fourth. We are informed and believe that the said applicant has permitted the said place of business of the said applicant to be the resort of intoxicated persons, habitual drunkards, minors and lewd women.

“Fifth. We are informed and believe that the said applicant has kept his bar open on the Lord’s Day, commonly called Sunday, and has sold, given away or dispensed intoxicating liquors on the said Lord’s Day.

“Sixth. We are informed and believe that the said applicant has sold or given away intoxicating liquors to minors, habitual drunkards and to persons at the time intoxicated.

“Seventh. We are informed and believe that the said applicant conducts his'principal place of business for the sale of intoxicating liquors in such a manner that it cannot be seen fully and easily by passers-by; that the view is obstructed by a door and by a high window which thoroughly obstructs a view of the bar of these premises and thereby prevents the police and passers-by from a knowledge of what happens in the said barroom.

“Eighth. We are informed and believe that the certificate and recommendation of the said applicant was not read to and by each of the signers thereof.

“Ninth. We are informed and believe that the signatures to the said certificate are not in the proper and genuine handwriting of each of the signers thereof.

“ Tenth. We are informed and believe that the said saloon has become a nuisance in the neighborhood and has degraded the colored race by the practices which are carried on at these premises.”

The applicant objects to the generality of said allegations on the ground that they do not sufficiently and reasonably inform him of the charges he is required to meet.

[1] We think that reason No. 1 is sufficient. When an applicant represents himself in his application to be a proper person to engage in the liquor business, and the granting of the license is resisted on the ground that he is not such proper person, the applicant should at all times be prepared to support his petition in showing that he is.

[2] In respect to reason No. 2, we say that “disorderly, riotous and lewd conduct” must be generally regarded as a continuing offence, and the proof of it should not necessarily be confined to any specific time or act. For that reason we hold said reason to be sufficient.

[3] The third reason charges “gambling” upon the premises, ' and we think this is a specific charge, and that the remonstrants should aver with greater particularity the time when such offense was committed. At least the time or times at, or about which . the gambling occurred should be stated.

[4] We think the fourth reason, which charges “the place of business of the said applicant to be the resort of intoxicated persons, habitual drunkards, minors and lewd women,” is substantially the same as No. 2, and hold it to be sufficient for the same reason.

[5] We regard reasons Nos. 5 and 6, charging, respectively, the sale of liquor on Sundays and the sale of liquor to drunkards and minors, as specific charges and in theory the same as the gambling charge in No. 3, and for the same reason are insufficient.

[6] We think reasons Nos. 7, 8, 9 and 10 are sufficient.

[7] Remonstrants are not required to give the names of the persons by whom they expect to prove the charges made. The reasons for this ruling must be obvious.

[8] In regard to remonstrances generally, we say that in our opinion the remonstrance should never be in the nature of a dragnet. On the contrary, the remonstrants, on their signing the same, should know or honestly believe that the charges made are true and that there is a reasonable expectation of being able to prove the same. There should be something more than a suspicion of the act charged or the hope of proving it. Whether any remonstrance is open to such objection or criticism the court will determine in the particular case.