The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1895-01-15
AGAINST THE MAYOR
DECISION IN HIGNIGHT INJUNCTION
SUIT BY JUDGE HARVEY.
Holds the Law Giving MAJOR Power
to Revoke saloon Licenses In
constitutional.

Judge Harvey, of the Superior Court, yes
terday afternoon rendered a decision in
the case of James Hignight against Mayor
Denny and the city of indianapolis, which
was a surprise to everybody, the plaintiffs
attorneys, not excepted. He decided that
portion of the city charter which gives
the Mayor the right to revoke liquor Ii
censee, when he sees fit is unconstitutional
and he also granted Hignight an injunc-
ton restraining the city from molesting him
for selling under the license in controversy.
The reason given for this decision is that
under the present wording, the charter
gives the Mayor too much discretionary
power and the court intimates that II the
charter provided a proper means of proceed
ure in actions to revoke licenses. 1t would
be constitutional. The opinion upon the
charter was a great surprise, for the plant
ifs attorneys merely suggested a question
of unconstitutionality in their argument.
The administration has, for some time,
held the Mayors authority to revoke Ii
censes as a club over the heads of saloon
keepers who ignore the law. Judge Har-
vey has taken way this club and Mayor
Denny and Superintendent Powell acknowl-
edge themselves as helpless to compel the
observance of the liquor laws.
James Hignight is the proprietor of an
East Washington street saloon. He has
given the police considerable trouble on
Sundays and after hours. He was arrested
and convicted of illegal selling in police
court, but the fine failed to put a stop to
the appearance of illegal selling. Mayor
Denny then summoned Hignight to appear
and show cause why his license should not
be revoked. Instead of complying with the
summons, Hignight procured counsel and
asked an injunction restraining the Mayor
from revoking the license and enjoininS the
police from molesting him. The case was
argued some weeks ago.. Judge Harvey in
his decision, given yesterday, begins by say
ing:
JUDGE HARVEY'S DECISION.
at is proper to ascertain the rights of
petitioner herein and the authority of those
threatening to interfere in determining
whether the relief asked should be granted.
Petitioner claims that his privileges and
property right have Deen violated by
revocation of his license and that they will
be further violated unless an Injunction is
granted. Such right as he has to continue
in the retail liquor business depends upon
his license and whether 1t has been law
fully revoked. Being authorized, regulated
and not prohibited, the retail liquor bust
ness is recognized by law as a legal one"
The court quotes at length from decisions
of courts in this and other States to show
that the liquor business is a legal one and a
business recognized by law. The city ordi-
nance is referred to by which the defendant
has the right to carry on a retail liquor
business. The decision continues:
9Th only power in the Mayor. or the
specific Eower in the Council, on the sub
ject, is as quoted and the only ordinance
relating to such licenses is the one named.
1t will be noticed that the Council is not
on 1nrfu 4 n III colo n r IinIJnYCA
nor has it attempted to do SO. 1t can only
tax, license. and regulate. The Council cam
not add to or take from the Mayor any
power granted him by the State"
The decision goes on to say the power of
the Mayor to revoke licenses is not depend
ent on any regulations or conditions that
are or may be prescribed by the Council;
that it is complete or incomplete as re-
cited by the charter. and that all the pro-.
visions of the charter, which grants this
right, are to be construed together and
literally, to accomplish beneficial results
and the general good of the community as
intended. The charter expressly declares
an intent that the Mayor shall cause ordi-
nances and laws to be enforced, and be re-
sponsible for good order and government.
and to the extent defines the line of his con-
duct in reference to revocation of licenses,
but to his judgmen is left the question of
what licenses shall, and what licenses shall
not be revoked. His discretion is the only
limit. Judge Harvey quotes from a num-
Der of decisions which show the tendency of
the court has been to limit the discretion-
airy powers of an official. In the case of
Yick Wo VS.. Hopkins, 11Sth U. S., $50, the
court said:
"In fact, an ordinance which clothes a
single individual with such arbitrary power
! hardly falls within the domains of the law.
| and we are constrained to pronounce ii in,
/ 0Dpr2fiVa and void If this nr1ina poo jc
valid the board may prohibit at it's arb;-
trary and u~nregulated discretion"
The Yick Wo VS.. Hopkins case began in
California over an ordinance making it UNI
lawful for any one to conduct a laundry
without consent in writing of the board of
supervisors, except in buildings of brick or
stone.
Judge Harvey then continued:
"In the case at bar Mayor Denny acted
| with much more fairness and consideration
law reaured. But this does as' not answer anan the the
objection of the law made by the higher
courts. 1t is held that the giving of notice.
where by law such is not required, is of no
more effect than if no notice were given.
It necessarily follows that the provision in
| revoke licenses is void; that the emp
revocation of petitioners license is void, and
that so far as this question is concerned
| the petitioner has the same right to sell
liquors hereunder that ne had the day his
person to hold a license. but SO far as the
city is concerned, until the charter is
amended, the restrictions must be found in
fines and penalties for violation of ordi-
nances and laws. While the business is en-
titled to protection when lawfully conduct
| ed, it is, nevertheless, when unlawfuilv
conducted, to be interfered with or stopped
10y virtue of such power. as applies to all
under the same circumstances"
THE LICENSE IN FULL FORCE.
Regarding the petitioners request that the
Mayor and the superintendent of police be
enjoined from interfering with his business
at such hours and on such days as 1t is
lawful for him to transact business, Judge
Harvey says:
1T must be remembered that the revoca-
ton being invalid and the license being in
full force, an arrest of the petitioner. TAX
ing him from his place of business, on the
sole charge of selling liquor without a.
license, violates a constitutional right to use
and occupy property; a right to enjoy priv
fleges and imfniinities enjoyed by others,
and his place of business is by the same