applicant who might give notice, etc. Under the authorities we have cited, and in sound reason, the word "any" embraced any one who might apply. While the powers of attorney did not specifically name the appellee, they were effective against him, because he was included within their clear intent and meaning. Appellee was one of any applicant or every applicant. The remonstrance was in fact directed against him by name, and this brings it within the rule announced in State v. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313, and Massey v. Dunlap, 146 Ind. 350, 44 N. E. 641. A cardinal rule in the construction of a statute is that, where there is nothing in the act to indicate that a word or phrase is used in a particular or technical sense, it is to be taken or accepted in its ordinary and popular meaning. The word or phrase is to be interpreted in accordance with its meaning at the time of the passage of the statute. 23 Am. & Eng. Enc. Law, pp. 326, 327. This rule is recognized by an act of the legislature of this state, and it is only when it will manifestly result in the defeat of the legislative intent that the words of a statute will not be construed in their plain, ordinary, and usual sense. Section 240, Burns' Rev. St. 1901. See, also, Massey v. Dunlap, 146 Ind. 350, 44 N. E. 641. In construing section 9 of the act of 1895, conferring the right upon a legal voter to remonstrate against an applicant for license, we have given to the word "any," as there used, its ordinary, plain, and usual meaning. By an analysis of the statute it is made manifest that the phrase "any applicant" means every applicant. To defeat an application for license, it required a majority of the legal voters of "any township" "or ward in any city" to remonstrate. Now it is perfectly clear that, when the legislature used the phrases "any township" and "or ward in any city," it meant every township in the state, and every ward in every city in the state. The right to remonstrate is given to all legal voters, and hence includes every legal voter. By the same construction we can say that by the phrase "any applicant❞ is meant every applicant. If A. employs B. as his attorney, to appear for and represent him in any court in any litigation he may have, the authority of B. to so appear and represent A. in all litigation against him would be unquestioned; and this would be true upon a verbal employment. Again, if A., by a duly executed power of attorney, appoints and constitutes B. his attorney in fact to sell and convey by deed any of his real estate, wheresoever situated, the power of B. to sell and convey all of A.'s real estate, while such power of attorney was in force, unrevoked. must be conceded. The same principle, it seems to us, must be applied here, under the authority of the legal voters, conferring upon their respective attorneys in fact the authority to exercise

their rights by executing, signing, and placing on file with the auditor their remonstrance in writing against the granting of a license to "any applicant, by name," and in like manner "to execute and file such remonstrance against any one, by name, who shall give notice," and "successively against each of such applicants," etc. This conclusion is not in any manner in conflict with the rule declared in Cochell v. Reynolds, 156 Ind. 14, 58 N. E. 1029. In that case a remonstrance was filed by an agent, under a power of attorney, which contained this provision: He (the agent) "is hereby authorized to sign our names to any remonstrance against the granting of a license to any person he [the attorney in fact] may see fit to remonstrate against receiving or having such license, and to file such remonstrance in the office of the auditor * * * at any time he may see fit, and present the same to the board of commissioners. * * and all such power and authority is hereby granted to our said attorney in fact so to do at any time within two years from the date hereof." In that case, under the clause of the power of attorney quoted, it was held that the right or power conferred upon the legal voters of a township or ward of a city, under section 9 of the act of 1895, to remonstrate, could not be delegated by such voters to some special agent in such manner as the exercise of such power would be made to depend upon the mere discretion of the agent. The decision in that case was unquestionably right. In Massey v. Dunlap, supra, and State v. Gerhardt, supra, it was decided that by section 9 of the act of 1895 there was created a species of self-government, which by the law is placed in the hands of the people, to be exercised by a majority of them as they may judge to be for their best interest. The regulation and restraint of the liquor traffic is an exercise of the police power of the state. Such power, as an original and primary power, is lodged in the legislature; but the legislature, by section 9 of the act of 1895, delegated a portion of such power to the majority of legal voters in every township in the state, and every ward in every city of the state. Cochell v. Reynolds, supra. As was said in Cochell v. Reynolds: "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 any application. He may favor a well-regulated traffic and conclude to thwart only those applicants he deems unfit. As to the voter the right is delegated, and not primary. A delegated right cannot lawfully be redelegated, in the absence of express authority to that end from the principal. The act of 1895 does not give the voter. in respect to the decision to be made by him, the right of substitution. In this case the voters profess to authorize an agent to sign the voters' names to remonstrances in

*

such cases as the agent should see fit. The decision was not the voters,' but the agent's, multiplied in power by the number of signatures to the remonstrance. * * The effectiveness of an instrument by which the voters should determine for themselves the matter of discretion, and employ an attorney at law or one of their own number to appear in one or all of these judicial proceedings, and prepare, sign, and file a remonstrance in each case, and by which instrument the attorney accepted the employment, and agreed to act upon the expressed decision of the voters, is not directly involved in this appeal." In a concurring opinion by Jordan, J., he said: "I am not to be understood as impliedly or otherwise affirming that the legal voters of a township or ward, as the case may be, cannot, under any circumstances, be permitted to remonstrate, under section 9, supra, through the agency of another." It seems from the language used that there is no doubt what conclusion would have been reached by the supreme court if such question had been directly involved.

The sentiment in regard to the sale and traffic of intoxicating liquors, as upon most questions which affect the public, is divided. Some citizens have convictions that there should be no restrictions, and that it is a business in which any person who may desire should be allowed to follow without restraint. Others look upon the business as legitimate, within restricted limits, and, as thus restricted, countenance the traffic. While others are opposed to it in any form, with or without restrictions. With the latter we must class, under the terms of the remonstrance and powers of attorney as disclosed by the record, the majority of the voters of Owen township, Jackson county, Ind. By their powers of attorney they have determined for themselves the matter of discretion, and employed and empowered their attorneys in fact to appear in any and all applications and remonstrate against any and each applicant, by name, who might apply for a license. The majority of the legal voters in that township determined for themselves that they did not desire that any one should be granted a license, and thus be permitted to sell intoxicating liquors within its borders. They thus exercised the right to a "species of local selfgovernment, which by law is placed in the hands of the people, to be exercised by a majority of them as they may judge for their best interest." This right the law ought to respect, when it is properly exercised, for it is the voice of the majority, and to say that the majority shall not rule would be destructive of the fundamental doctrine or principle of popular government.

It is affirmed by the authorities in this state that the hearing of an application for a liquor license is a judicial proceeding,

that the application is in the nature of a complaint, and that the remonstrance is in the nature of an answer. It is also ruled that under section 973, Burns' Rev. St. 1901, authorizing civil actions to be prosecuted or defended by a party in person or by attorney, a remonstrance signed by the remonstrators' attorney is a sufficient compliance with section 7278, Id., where the remonstrance is required to be for cause. See Cochell v. Reynolds, supra, and authorities there cited. Also that under section 9 of the act of 1895 a remonstrance states facts sufficient to constitute a defense to the application if it alleges the opposition of the remonstrators to the granting of the license. Under these authorities, and upon the foregoing reasoning, we are clearly of the opinion that the appellants, as remonstrators, had a right to appear by their attorneys in fact and file their remonstrance. This being true, the names signed to the remonstrance by the attorneys in fact under the respective powers of attorney should have been counted. When counted, they, with those who had individually signed the remonstrance, would have constituted a majority of the legal voters of the township. Under such facts, both the board of commissioners, and the circuit court on appeal, were without jurisdiction, and the application of appellee should have been dismissed.

Judgment reversed, and the court below is directed to grant appellants a new trial, and to proceed in harmony with this opinion.

(29 Ind. App. 130).

YOUNG et al. v. BAKER et al. (Appellate Court of Indiana. May 23, 1902.

NOTES-MATERIAL ALTERATION-NEGOTIABIL. ITY-ACTIONS - DEFENSES- UNAUTHORIZED ALTERATION-SUFFICIENCY OF EVIDENCEBONA FIDE HOLDERS-SUFFICIENCY OF COMPLAINT TO RAISE ISSUES.

1. A note made negotiable by Burns' Rev. St. 1901, §§ 7515, 7516, though not payable at a bank, being by section 5517 made subject, in the hands of an assignee, to defenses and set-offs accruing to the maker against the original payee, and a note payable at a bank, and thus negotiable by the law merchant, beingfree, in the hands of a bona fide purchaser, from equities between the maker and original payee, the alteration of a note payable generally, and not at any bank, so as to make it payable at a bank, is a material alteration.

2. A material and unauthorized alteration of a note renders it invalid in the hands of a bona fide holder as well as in the hands of the payee.

3. Where a complete note is executed without any agreement as to where it is to be paid, the agent of the payees, on the contrary, telling one of the makers that it would probably be sent to one bank, and telling another maker that it would be sent to another bank, and refusing to tell the third of the makers where it would be payable, the fact that the form used in preparing the note is a negotiable form, containing the words "payable at," followed by a blank, then "bank," followed by blank spaces, and also a clause waiving presentment and notice, and that the blank spaces are not.

erased, is not sufficient to authorize the payee to insert the name of a bank in such blank spaces, so as to make the note payable at such bank.

4. Where, in an action on a note, defendants set up a defense good as between them and the payee, an allegation in the complaint that before maturity, and for a valuable consideration, the note was assigned to plaintiff, is not equivalent to an allegation that plaintiff had no notice of an alteration therein, and presents no such issue.

Comstock, C. J., dissenting.

liminary proof of signatures, the authenticity of which is admitted.

It is shown by the uncontradicted evidence of the appellants that the words "the First National" and "of Vincennes, Indiana," were not in the notes when they were signed, and that they did not authorize any one to insert them thereafter. One appellant testified that he asked Gilligan, the agent selling the horse, "where the note was payable," and he said it would probably be sent to Vincennes.

Action by William Baker and others against Marshall Young and others, as the makers and payees of a promissory note. From a judgment in favor of plaintiffs, defendant Young and the other makers appeal. Reversed.

W. A. Cullop, for appellants. Louis A. Meyer, B. M. Willoughby, and James M. House, for appellees.

ROBY, J. The appellees' complaint was in three paragraphs, each of which was founded upon a promissory note, identical, except as to the time of payment; the first of the series being of the tenor following: "$533.33. Crawfordsville, Ind., March 25, 1896. October 1st, 1897. After date, we, or either of us, promise to pay to the order of Thomas S. Bland, payable at the First National Bank of Vincennes, Ind., five hundred thirty-three & 33/100 dollars, value received, without any relief from valuation or appraisement laws, with interest at six per cent. per annum from date, payable annually until paid, and attorney's fees. The drawers and indorsers severally waive presentment for payment, protest, and notice of protest and nonpayment, of this note." Each paragraph contained the averment that the payees, who were made defendants, indorsed said notes to the plaintiff before maturity, and for a valuable consideration. The appellants answered the complaint in two paragraphs: (1) Setting up that they did not execute the notes sued on, or either of them. This paragraph was verified, and is sufficient as a plea non est factum. Swales v. Grubbs, 126 Ind. 106, 25 N. E. 877. (2) General denial. No reply was filed. The cause was submitted to the court for trial. A general finding was made for the plaintiff, and a judgment rendered against the appellants for $1,309.67, from which this appeal is taken. Their motion for a new trial upon the grounds (1) that the finding is contrary to law; (2) that the finding is not supported by sufficient evidence, was overruled. Such action of the court is assigned for error. The evidence is in the record. It is not conflicting.

The notes were admitted in evidence without proof of appellants' signatures in the first instance, and without objection. The proof was supplied at a later time. Appellants were not harmed by the failure to make pre

ligan where the notes were payable, and he said he supposed it would be at Bicknell. Appellant Sprinkle testified: "I asked where the notes were to be payable, and he said: 'Never mind, Mr. Sprinkle. I will attend to that.'" Part of the appellants testified that they supposed they saw the word "bank" in the notes, and two of them testified that there was a blank space after the word "at" and before the word "bank," and also a blank space after the word "bank." Neither the extent of the space nor its appearance is mentioned. The other appellants have not at any time made any statement or request, given any direction, or had any information as to the notes being made payable at any place. There was no agreement that they were to be made payable at a bank. Appellee testified that he purchased the notes before maturity, paying for them a sum stated, that they were then in the same condition as at the time of the trial, and that he had no knowledge of any alteration. It is not shown whether there was or was not anything on the face of the notes when he purchased them to suggest an alteration. The notes, when executed, were not payable at a bank in Indiana; they were payable generally; and it was the duty of the makers to seek them and pay them when due to the holders. King v. Finch, 60 Ind. 420; Gale v. Corey, 112 Ind. 45, 13 N. E. 108, 14 N. E. 362. They were negotiable by statute. Sections 7515, 7516, Burns' Rev. St. 1901 (sections 5501, 5502, Horner's Rev. St. 1901). The assignee would have taken them subject to whatever defense or set-off the makers had, before notice of the assignment, against the original payee or assignor. Section 5517, Burns' Rev. St. 1901 (section 5503, Horner's Rev. St. 1901). The notes sued upon were payable at a bank in this state, and negotiable by the law merchant; a bona fide purchaser before maturity, without notice, taking them free from equities between makers and payee. Section 7520, Burns' Rev. St. 1901 (section 5506, Horner's Rev. St. 1901). The alteration, making them payable in bank, instead of generally, was therefore a material one. Pope v. Bank, 23 Ind. App. 210, 54 N. E. 835; McCoy v. Lockwood, 71 Ind. 319; Ballard v. Insurance Co., 81 Ind. 239; Shanks v. Albert, 47 Ind. 461; Light v. Killinger, 16 Ind. App. 102, 44 N. E. 760, 59 Am. St. Rep. 313.

The material and unauthorized alteration of a promissory note renders it invalid in the

hands of the bona fide holder as well as in those of the payee. Wood v. Steele, 6 Wall. 80, 18 L. Ed. 725; Cronkhite v. Nebeker, 81 Ind. 319, 42 Am. Rep. 127; Am. & Eng. Enc. Law (2d Ed.) p. 193; Dietz v. Harder, 72 Ind. 208; Bowman v. Mitchell, 79 Ind. 84; Collier v. Waugh, 64 Ind. 456; Hert v. Oehler, 80 Ind. 83; Bank v. Adams, 91 Ind. 280–285.

Appellee tendered an issue based upon notes payable at the First National Bank of Vincennes, Ind. Failing to establish the execution of such notes, and it being affirmatively shown that they were not executed by the appellants, the finding should have been against him. It is, however, claimed by him that the payee named in the notes had been authorized, as an agent of the makers, to insert the name of the bank. In order to avoid confusion, and to determine the legal questions involved with clearness and accuracy, the proposition stated will be first considered as though it arose between the makers of the note and the payee, leaving questions as to the right of the indorsee out of consideration at this time. The general proposition, to which there does not seem to be any dissent, is that a person who delivers a note for use, with blanks unfilled, the filling of which is necessary to complete the instrument and render it operative, is thereby given implied authority to make such insertions as are necessary to form a complete and enforceable contract. Machinery Co. v. Moore, 25 Ind. App. 479, 58 N. E. 540; Angle v. Insurance Co., 92 U. S. 330, 23 L. Ed. 556; Gothrupt v. Williamson, 61 Ind. 599; Armstrong v. Harshman, Id. 52, 28 Am. Rep. 665; Holland v. Hatch, 11 Ind. 497, 71 Am. Dec. 363; Spitler v. James, 32 Ind. 202, 2 Am. Rep. 334; Emmons v. Meeker, 55 Ind. 321; Brown v. Bank, 115 Ind. 572, 18 N. E. 56; De Pauw v. Bank, 126 Ind. 553, 25 N. E. 705, 26 N. E. 151, 10 L. R. A. 46. It is also equally well settled that the payee cannot take from or add to a contract already complete in its terms any material condition, no matter how many blanks may have been left, contrary to the intention of the parties. Machinery Co. v. Moore, supra; Angle v. Insurance Co., supra; McCoy v. Lockwood, supra; Pope v. Bank, supra; De Pauw v. Bank, supra. The notes as executed by appellants were complete. They contained the date, time of payment, amount, rate of interest, and were payable generally. They lacked nothing to make a complete and perfect contract. The mere fact that the form used was such that a different contract might have been made upon it could confer no implied authority upon the payee to act as the agent of the maker, and, thus acting, to create a different instrument, more favorable to himself than the one actually signed. Casto v. Evinger, 17 Ind. App. 298-300, 46 N. E. 648; Coburn v. Webb, 56 Ind. 96, 26 Am. Rep. 15; Palmer v. Poor, 121 Ind. 135, 22 N. E. 984, 6 L. R. A. 469; McCoy v. Lockwood, 71 Ind. 319; Burrows v. Klunk, 70 Md. 451, 17 Atl. 378, 3 L.

R. A. 576, 14 Am. St. Rep. 371. In Marshall v. Drescher, 68 Ind. 359, the principal authority relied upon by appelice, the words "the First National Bank of Spencer, Indiana" were inserted after the printed word "at." The action was brought by an innocent purchaser for value, who had no notice of the alteration. A judgment in his favor was affirmed, the reason therefor being stated by the court in the following language: "We think the finding shows that the note was valid in the hands of the payee, notwithstanding the alteration, and, being so valid, was valid in the hands of the appellee, whether he had notice of the alteration or not." One finding of fact was that the maker of the note directed the payee at the time to leave it at the bank named. The opinion further states that "the payee had implied authority, from the condition of the note, and from the statement of the maker to leave it at the First National Bank of Spencer for payment, to fill out the blank as he did." The authorities cited relate to the right of a bona fide holder for value to recover upon notes negligently executed, except the case of Gothrupt v. Williamson, 61 Ind. 599, where the question was between the payee and the maker; the note having been left blank as to amount, to whom payable and where payable, and being therefore an incomplete instrument. The substance of the decision in Marshall v. Drescher is that the facts proven, as a matter of fact, establish the agency of the payee to make the insertion for the makers. The presence of a blank space was in that case, as it is in the case at bar, one circumstance proper and necessary to consider, as between the parties to the instrument, in determining whether the change made was or was not authorized. It is not the only fact to be considered in this case, any more than it was in that one. There the maker himself selected and named the bank where he desired the note made payable, and the implication of authority made was drawn from the facts enumerated in the opinion. This is the construction given the case by both the supreme and appellate courts. Pope v. Bank, 23 Ind. App. 215, 54 N. E. 835; Palmer v. Poor, supra. In this case the authority of the payee to insert the name of the bank is expressly denied, and no circumstances are shown from which it could be implied, in the absence of such denial, except the mere fact that the person drawing up the note, whoever he may have been, omitted to draw his pen through the blank spaces therein, and the presence in the instrument of a clause waiving presentment and protest,-a clause not infrequently found in notes not payable in bank. As against these circumstances, in addition to the testimony that no authority is given, is the fact that the payees were business men and stock dealers for a number of years; that the note, in its original form, left its makers, as all of the parties are presumed to know, free to set up such equities as might

exist between them and the payees; and that in its altered condition, in the hands of a bona fide holder, such defenses were cut off. It the parties intended the note to be made payable at the First National Bank of Vincennes, it is extremely probable that the name of that bank would have been inserted at the time. What inference might have been permitted in the absence of direct testimony is not important, an inference not being admissible to establish a fact which is disproved by direct and unequivocal testimony. Authority cannot be implied to do an act which it was understood should not be done. Pope v. Bank, supra. That the mere leaving of a blank in a complete promissory note does not authorize the payee to insert terms therein changing the character of the obligation is a proposition abundantly established in this state. Shanks v. Albert, supra; Palmer v. Poor, supra; McCoy v. Lockwood, supra; Schnewind v. Hacket, 54 Ind. 248; Bank v. Zeims, 93 Iowa, 140-146, 61 N. W. 483. In Palmer v. Poor, supra, a note payable in bank, in the hands of a third party, was held to have been vitiated by the insertion of the figure 8 before the words "per cent. interest." If the presence of blanks were of controlling importance, it might as well have been held in that case that the payee was authorized to insert a legal rate of interest therein, as to hold that the entire character of this note might be altered by the insertion of the name of a bank, merely because there was room in the instrument, as signed, in which to make such addition. Cronkhite v. Nebeker, 81 Ind. 319, 42 Am. Rep. 127; Holmes v. Trumper, 22 Mich. 427, 7 Am. Rep. 661: Collier v. Waugh, 64 Ind. 456; Hert v. Oehler, 80 Ind. 83; Eckhert v. Louis, 84 Ind. 99. In Gillaspie v. Kelley, 41 Ind. 158, 13 Am. Rep. 318,- -a case not cited by appellee, a blank was left after the words "payable at," and before the words "bank at Frankfort," in which the name of a certain bank was inserted. The court there held it to be obvious, "not only from the face of the note, but from the evidence of the appellee, that the maker of the note in question intended to make the same negotiable and governed by the law merchant." What the evidence of the appellee was is not stated, but the note, as signed, contained the words "Bank of Frankfort," tending to indicate an intention which does not appear in the case at bar. The court further said, "If the parties had intended to make an ordinary promissory note, and had it been complete as such when it was delivered to the payee, such payee would not have been authorized to insert words rendering it negotiable." In Cronkhite v. Nebeker, the authorities were reviewed and distinguished. The case of Holmes v. Trumper, 22 Mich. 427, 7 Am. Rep. 661, was liberally quoted from and approved. The opinion by Woods, J., contained the following concise statement of the proposition decided: "The exact question presented in this record is

whether the maker of a nonnegotiable promissory note, perfect in its terms, by leaving a blark space in the body of the note, wherein words of negotiability may be so inserted as not to furnish an indication of the alteration having been made irregularly, gives an implied authority for the making of the alteration, which, as against a bona fide purchaser, he may not deny." The following extract from Holmes v. Trumper, supra, was made: "We think the courts have gone quite far enough in sustaining instruments executed in blank, and the implied authority to fill them up, and we are not disposed to take a step in advance in that direction." See, also, Bank v. Williams, 174 Pa. 66, 34 Atl. 303, 35 L. R. A. 464. The holding was that the authority to insert the name of a bank did not exist. The court further said: "There are cases that seem to conflict with the foregoing, but they are, in most instances, where the notes as executed were imperfect; the unfilled blanks being in such connection with the words used as to require the insertion of other words in order to complete the instrument as executed." If there is anything said in Marshall v. Drescher, supra, inconsistent with the proposition decided in Cronkhite v. Nebeker, it is overruled by the later exposition of the law.

Assuming, without further discussion, that, as between the parties to the instrument, no authority to fill the blanks is shown, but that, indeed, such authority is negatived, the next logical step is to inquire what effect the indorsement of the note to the appellee is to be given. The allegation of the complaint was "that afterwards, before the maturity of said note, and for a valuable consideration, the said Alexander Thompson and William P. Bland, by the style of Thompson & Bland, assigned said note to this plaintiff by an indorsement thereon in writing." The complaint does not aver that the appellee had no notice of the alteration, and the allegation made is not equivalent thereto. Bunting v. Mick, 5 Ind. App. 289-293, 31 N. E. 378, 1005; Giberson v. Jolley, 120 Ind. 301, 22 N. E. 306; Pope v. Bank, supra. Bradley v. Whicker, 23 Ind. App. 380, 55 N. E. 490. The appellee, not having averred that he was a goodfaith purchaser without notice, is attempting to sustain himself upon an issue not made. This he cannot do, and the judgment will have to be reversed. It is not, therefore, necessary, nor, indeed, proper, to discuss or attempt to decide questions which relate to the facts upon which appellee might be en titled to recover notwithstanding the altera tion.

Attention is called to the following cases! Brickley v. Edwards, 131 Ind. 3-6, 30 N. E.. 708; Emerson v. Opp, 9 Ind. App. 581, 4 N. E. 840, 37 N. E. 24; Baldwin v. Bricker, 86 Ind. 221; Bank v. Morgan, 117 U. S. 96, 6 Sup. Ct. 657, 29 L. Ed. 811.

Judgment reversed, with instructions to sustain appellants' motion for a new trial,