Cain v. Allen-168 Ind. 8.

or proceeding instituted before the board of commissioners during said period of two years by an applicant for a license to retail intoxicating liquors under the act of 1875, supra, and such applicant and the remonstrators become adverse parties in such proceeding, and each party is entitled to be accorded a hearing before the board, and in court, in case of appeal, the remonstrators, first, in support of their remonstrance, and second, the applicant in opposition thereto. If upon the evidence the board finds that the general remonstrance in question at the time of its filing was signed by the requisite number of legal voters of the particular district and was filed with the auditor within the time prescribed by statute, then the finding of such facts strips or deprives the board of any further jurisdiction in the case, and it must dismiss the application. State v. Gerhardt, supra; Ludwig v. Cory, supra; Massey v. Dunlap (1896), 146 Ind. 350.

It will thereafter be unlawful to grant a license to the applicant in such proceeding for a period of two years next

succeeding the filing of the general remonstrance; 8. or, in other words, the law declares what, under the circumstances, shall be the consequences of such a finding, and the board of commissioners simply voices the mandate of the law by denying the applicant's right to a license. The decision of the board in such case must be held to be an adverse adjudication of the applicant's right to a license, and he, having had his day in court, with the privilege of controverting the remonstrance, has, under the law, no standing whatever to make another application for a license within such period of two years. If, however, the remonstrance is not sustained by the evidence, then the board of commissioners can proceed to hear the applicant. in support of his application for a license. State v. Gerhardt, supra.

It would certainly be unreasonable to suppose or assume that the legislature by the amendment in question intended

Cain v. Allen-168 Ind. 8.

that the board of commissioners should be controlled 9. by a procedure in case of a general remonstrance different from that which had been held by this court to apply and govern in a case upon a special remonstrance; or, in other words, that the general remonstrance provided by the amendatory act, when filed with the auditor, should be considered and held as instituting an ex parte proceeding over which the proper board of commissioners should assume jurisdiction, and thereupon determine the sufficiency thereof in advance of any and all applications for a license, and order and adjudge, as was done in the case at bar, that it should be unlawful for the board to grant a license to any person for the sale of intoxicating liquors during the period of two years, and that such order should preclude the board thereafter, during said period, from granting to any applicant for license the right to be heard in respect to the sufficiency or validity of the remonstrance. Such a construction of this statute possibly might afford grounds for the contention of appellant's counsel that the act in question in its effect served to suspend the operation of the license law of 1875.

It is an undisputed proposition that under our fundamental law it is not within the power of the legislature to

confer upon the citizens of the State the right to 10. say whether the operation of an existing statute or

law shall be suspended. It will be noted that the statute in question does not declare that the filing of a general remonstrance as therein provided shall thereafter render it unlawful for any person to apply to the board of commissioners for a license, but it is only declared to be unlawful thereafter for that tribunal to grant a license to any applicant therefor, etc. The act presupposes, or rather recognizes, the right of persons thereafter to apply for a license to retail intoxicating liquors under the provisions of the act of 1875. A person, then, still having the right to apply to the board for a license, certainly, as incidental

Cain v. Allen-168 Ind. 8.

thereto, must be accorded the right to a hearing upon all of the questions necessarily arising in the proceeding instituted by his application. The action of the board in assuming jurisdiction over the remonstrance herein, 11. as shown, and in making the order thereon, was wholly unwarranted by law. Consequently, as it had no jurisdiction over the matter, the proceedings had upon the remonstrance in question, and the order made therein, were a mere nullity. The law is well settled that in this State boards of commissioners are invested only with statutory powers, and they have no power to act except as is expressly or impliedly conferred upon them by statute. Gavin v. Board, etc. (1885), 104 Ind. 201; Hoop v. Affleck, supra.

12.

It is certainly evident that the section as amended contains no provision upon which the power of the board of commissioners to assume jurisdiction over the remonstrance in question, as it did, can be predicated, and counsel for appellees have been unable to cite us to any statute which either expressly or impliedly authorized the board to take action and consider the remonstrance in controversy before its jurisdiction in the premises was invoked in a proceeding on an application for a license to retail intoxicating liquors. It is manifest that the construction which we give the provision of the act in controversy avoids bringing it in conflict with either the state or federal Constiution, for, under the law as herein construed, an applicant for a license under the statute of 1875 is given his day in court, as the law intends, to controvert and show, if he can, that the remonstrance in question is not signed by a majority of the legal voters of the particular district. Or, in other words, the right to show that the remonstrance is impressed with fraud for the reason, among others, that a part of the voters necessary to constitute the required majority were minors, and therefore not legal voters, or

Cain v. Allen-168 Ind. 8.

that some were disqualified as voters upon other grounds, or that the names of some of the voters subscribed to the remonstrance were signed thereto without legal authority. It would certainly be unreasonable to assume that the legislature, under the amendatory act, by authorizing the filing of a general remonstrance, intended thereby to deprive an applicant for a license of the right to controvert said document on the grounds hereinbefore mentioned, or for any other sufficient reason. Under the construction which we place upon the provisions of the amendatory act it must follow, under the decision of this court in Ludwig v. Cory, supra, that the right of the voters to execute such general remonstrance, as in the case of a special remonstrance, through the agency of a power of attorney, is preserved by the amendment, and therefore must be upheld.

13.

The title of the Nicholson law is sufficiently broad to embrace section nine as amended. It would appear to be

unnecessary to consider in detail the constitutional 14. validity of the amendatory act upon the various

grounds assigned and urged by counsel; for, in view of the construction which we accord it, its validity, over

substantially the same objections now urged, is fully 15. sustained by the reasoning and decision of this court in State v. Gerhardt, supra. It may be said, however, that while the law recognizes intoxicating liquors as property entitled to its protection, nevertheless the right of ownership therein is subject to such regulations 16. or restraints as are necessary to the protection of

society and the public in general. Laws enacted to carry into effect such regulations or restrictions are passed by the legislature in the exercise of the police power of the State, and the extent to which these regulations or restraints may be carried is a matter within the sound discretion of the legislative department, except as may be restrained by some constitutional or fundamental law.

Cain v. Allen-168 Ind. 8.

State, ex rel., v. Menaugh (1898), 151 Ind. 260, 266, 43 L. R. A. 408, and cases cited.

There is certainly, under the construction which we accord to the law, no sufficient reason or ground for asserting that it serves or operates to deprive any of our 17. citizens of their property or liberty without due process of law, nor does it deny them the equal protection of the law. State v. Gerhardt, supra.

The question is raised and propounded-have voters who have signed a general remonstrance provided for by the section as amended, the right, at any time after the 18. beginning of the first day of the three-day period prior to the commencement of the regular session of the board of commissioners, in which such a remonstrance has been filed with the auditor, to withdraw their names therefrom? This question, in our judgment, must be answered in the negative. The same rule in respect to this question which has been affirmed in respect to special remonstrances in the appeals of State v. Gerhardt, supra, and Sutherland v. McKinney (1897), 146 Ind. 611, is applicable and must control. In the case of State v. Gerhardt, supra, in considering the point, we said at page 473: "But if this right [to withdraw] is not exercised prior to the beginning of the first day of this three days' period, it no longer exists." As previously said, a general remonstrance like the one here involved, signed by the required number of voters and filed with the auditor three days before the beginning of any regular session of the board of commissioners, stands and continues to operate against the granting of a license to any and all applicants for a period of two years from the date of its filing. Therefore, under the holding in the case of State v. Gerhardt, supra-in which the legislature in enacting the amendment appears to have acquiesced-it follows that all voters who have legally signed the same and who do not withdraw their names therefrom before the beginning of said three-day period,