Miller v. Givens

Indiana Court of Appeals

Miller v. Givens

83 N.E. 1018, 41 Ind. App. 401, 1908 Ind. App. LEXIS 178

CourtIndiana Court of Appeals

DecidedMarch 13, 1908

DocketNo. 6,125

StatusPublished

This text of 83 N.E. 1018 (Miller v. Givens) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. Givens, 83 N.E. 1018, 41 Ind. App. 401, 1908 Ind. App. LEXIS 178 (Ind. Ct. App. 1908).

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Opinion

Myers, J.

At the June session, 1905, of the Board of Commissioners of the County of Jay, appellee was an applicant for a license to sell at retail intoxicating liquors in the second ward of the city of Dunkirk. On June 2, 1905, and three days before said session, appellants and others filed with the auditor of said county a remonstrance against all such applicants, as authorized by the act of 1895 (Acts 1895, p. 248, §9), as amended by the acts of 1905 (Acts 1905, p. 7, §8332 Burns 1908), purporting to be signed by a majority of the legal voters of Richland township in said county and the township in which said city is located. Upon the [402]*402hearing of said remonstrance said board found that a majority of the legal voters of said township had signed said remonstrance, and on June 12, 1905, rendered judgment in accordance with said finding, and by virtue thereof refused to grant appellee a license. Appellee thereupon took an appeal to the Jay Circuit Court, where such proceedings were had that judgment was rendered granting appellee a license, and for a reversal of that judgment this appeal is prosecuted.

1. The only question presented for our decision is, does the law authorize a majority of the legal voters of a township to prevent by a remonstrance the granting of a license to any and all applicants to sell liquor in a ward in a city located in the township? The Supreme Court, in passing on the question of the right of the legal voters of a township to prohibit- by remonstrance the sale of intoxicating liquors within the boundaries of a ward in an incorporated city under §8332, supra, as originally enacted, ruled that only the voters of the ward of the city in which the applicant desired to conduct his saloon were entitled to remonstrate. Massey v. Dunlap (1896), 146 Ind. 350.

2. The language of that section — “a remonstrance in writing, -signed by a majority of the legal voters of any township or ward in any city” — thus construed and interpreted, was reenacted and retained by the legislature in the amended section, and, under the settled rules of statutory construction, ‘ ‘ it will be presumed that the legislature intende'd that the law so reenacted should bear the same interpretation or construction ’ ’ given it by the courts of this State at the time of its reenactment, and that the legislature adopted such construction, “unless the contrary is clearly shown by the language of the act.” Kunkle v. Abell (1906), 167 Ind. 434; Board, etc., v. Conner (1900), 155 Ind. 484; Desgain v. Wessner (1903), 161 Ind. 205; National Supply Co. v. Stranahan (1904), 161 Ind. 602. There is not a provision or word in the amended act from which we can say [403]*403that it was the purpose of the legislature to repudiate the interpretation placed upon the language reenacted in the amended section, and under the authority of Kunkle v. Abell, supra, and Cain v. Allen (1907), 168 Ind. 8, the judgment in this case must be affirmed.

Judgment affirmed.

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Myers, J.

At the June session, 1905, of the Board of Commissioners of the County of Jay, appellee was an applicant for a license to sell at retail intoxicating liquors in the second ward of the city of Dunkirk. On June 2, 1905, and three days before said session, appellants and others filed with the auditor of said county a remonstrance against all such applicants, as authorized by the act of 1895 (Acts 1895, p. 248, §9), as amended by the acts of 1905 (Acts 1905, p. 7, §8332 Burns 1908), purporting to be signed by a majority of the legal voters of Richland township in said county and the township in which said city is located. Upon the [402]*402hearing of said remonstrance said board found that a majority of the legal voters of said township had signed said remonstrance, and on June 12, 1905, rendered judgment in accordance with said finding, and by virtue thereof refused to grant appellee a license. Appellee thereupon took an appeal to the Jay Circuit Court, where such proceedings were had that judgment was rendered granting appellee a license, and for a reversal of that judgment this appeal is prosecuted.

1. The only question presented for our decision is, does the law authorize a majority of the legal voters of a township to prevent by a remonstrance the granting of a license to any and all applicants to sell liquor in a ward in a city located in the township? The Supreme Court, in passing on the question of the right of the legal voters of a township to prohibit- by remonstrance the sale of intoxicating liquors within the boundaries of a ward in an incorporated city under §8332, supra, as originally enacted, ruled that only the voters of the ward of the city in which the applicant desired to conduct his saloon were entitled to remonstrate. Massey v. Dunlap (1896), 146 Ind. 350.

2. The language of that section — “a remonstrance in writing, -signed by a majority of the legal voters of any township or ward in any city” — thus construed and interpreted, was reenacted and retained by the legislature in the amended section, and, under the settled rules of statutory construction, ‘ ‘ it will be presumed that the legislature intende'd that the law so reenacted should bear the same interpretation or construction ’ ’ given it by the courts of this State at the time of its reenactment, and that the legislature adopted such construction, “unless the contrary is clearly shown by the language of the act.” Kunkle v. Abell (1906), 167 Ind. 434; Board, etc., v. Conner (1900), 155 Ind. 484; Desgain v. Wessner (1903), 161 Ind. 205; National Supply Co. v. Stranahan (1904), 161 Ind. 602. There is not a provision or word in the amended act from which we can say [403]*403that it was the purpose of the legislature to repudiate the interpretation placed upon the language reenacted in the amended section, and under the authority of Kunkle v. Abell, supra, and Cain v. Allen (1907), 168 Ind. 8, the judgment in this case must be affirmed.

Judgment affirmed.

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Bluebook (online)

83 N.E. 1018, 41 Ind. App. 401, 1908 Ind. App. LEXIS 178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-givens-indctapp-1908.

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