The Jasper weekly courier., 1875-06-18
Opinion Of OfAttorney-General BUS
kirk ON the Power Of Towns TO
Collect a License Fee under
Section Six Of the New Liquor
Law.

Collect "a License Zee under
Section Six Of the New Liquor
Law.
, from the Princeton Democrat.
r~Anshan. fsq., Attorney at Law;
Drss SIp: Your letter OF the 26th
inst. with Enclosure of copy of resou-
iion OH the part Of the Board Of Trus-
tees Of Princeton, was received this
morning:
The title Of the new liquor law en-
acted last winter. Is ne follows:
IAN Act TO regulate and license the
sale Of spirituous. vinous. mslt and other
Intoxicating liquors. TO limit the license
fee 10 be charged hv cities and towns \
prescribing penalties for intoxication,
and providin. for the recovery of dam
ages for Injuries growing out Of unlaw-
ful sales OF Intoxicating liquors; to re-
peal sii former laws regulating the sale
OF intoxicating liquors and all laws
and parts of laws coming in conflict
with the provisions of this act. prescri
bling penalties for the violation thereof,
and declaring an emergency"
Section six 49, OF the Act reads as fol-
lows:
No City or Incorporated Town shall
charge any person who may obtain Ii
cense under the provisions OF this act,
more than the following sums for IL
cense TO sell within their corporate linn
it, Cities and incorporated towns may
charge one hundred dollars. in addition
TO the sum provided for herein before.
An act approved March IL 1867. pur-
ported 10 amend the seventh clause OF
Section %. of the act for the incorpora-
tion OF towns. so that Board Of Trus-
tees could impose "A license upon the
ssle Of Intoxicating liquors. But this
|anendatory act was declared 10 Oe I'M
constitutional by the supreme Court be-
cause of technical defect in It's form !:
and il was decided that town could
not charge license for the sale Of in
ioNicating liquor. because there was no
sistute comforting such a power.
See The Town OF Martinsville We.
Frieze. 33 Ind. 507 /: The Town Of Prince
ton vs.. Nierling. 40 Ind. $40. these cas- c
do not question the power Of the Legis-
lature 10 confer upon municipal corpora
ton the privilege OF exacting licenses
Tor the sale of liquors: and that the
Legislature has the power 10 enact such
ia statute. there ran be no doubt.
am Of the opinion. although not fn-
iirely free from doubts. that The sixth
section OF the Liquor Law OF March IL,
1916. quoted above. confcrs upon the
Board of Trustees of an Incorporated
town tho power to exact a license not
exceeding QUO hundred dollars from any
person selling Intoxicating Liquors
within the corporate limits OF the town.
by virtue of q license under said act
! II Il true that the first sentence In the
section i negative Ia its terms: that the
entire section seems 20 have been draft
ed under misconccpton rs 10 the ex-
isting law upon the subject Of towns
lcharging licenses for sales of intoxica-
ting liquors, and is verv incomplete and
But upon careful ex-
animation OF its language | an satisfied
that il confers upon towns affirmatively
the power to exact licenses as above
stated. And the title, regard ms sufi-
cient.
Your second question is:
J "Can such license be exacfed from all
persons engaged in the business OF sell
ing intoxicating liquors within the town.
or from such persons only as hold Ii
censes under the State liquor law of
1882"
A town has no power to impose a IL
,ceuse upon the sale of intoxicating lic-
luor>, except as that power Is conferred
by statute, the sixth section above quo
ted. plainly confers such power only rs
TO those selling bv virtue Of license
under the State liquor law of 1875.
1 Your third question is:
docs such town possess The power 10
enforce an ordinance requiring the pay
lment of such license fee, by providing
for the infiction Of a pecuniary fine up
on persons violating such ordnance"
There can he no doubt that a town
could maintain a civil action for the
amount of license required by its or
ldinance, not exceeding one hundred
dollars, against a person selling intoxi-
eating liquors wiikin its corporate linn
Its. under license from the State.
Section thir,y-three of the Act for the
Incorporation of towns, etc, approved
June IL. 1854 provided as follows:
"Such Board of Trustees shall have
power 10 enact fines, penalties and for
lectures for violations of this act; or oi
Iany bv-law or ordinance by them estab-
llished. not exceeding ten dollars for any
! one offence, which may be recov cred by
action In the name of the corporation
! but such Board may remit the whole oI
snv part of the fine, penalty or forfeit
ylure Provided, that the fine assessed foi
1.-The violation Of any ordinance requiring
h license shall not be less than the
,Iamouut required to he paid for such Ii
lcense although il may exceed the san