The Plymouth tribune. (Plymouth, Ind.) 1901-1911, 1909-07-01
SH|PLEy LOSES F|GHT---SALOON
CLOSED DOORS LAST NIGHT
Judge Bernetha Decided That Liquor Ii
cense Was Not Granted Until Taken
Out-DeCision Covers Case

reason that said election and order
of the Board of Commis sioners rem
dered hrs license null and void The
constitutionality of the stature has
not been questioned in argument as
the basis OF plaintiffs cause of action
the Principal contention being that
plaintiffs license is not affected by
che law The question them remains
what was the effect of the statute
and the election held hereunder on
plaintiffs license issued after the law
was passed?
That statute provides IF major
ity OF the legal votes cast at said
election shall be in favor of prohit-
ting the sale of Intoxicating liquor
as beverage in such county it shall
thereafter be unlawful for said COM
misioners or any court to grant a Ii
cense to any person for the sale of
Intoxicating liquors in said county
and the Board OF Commissioners
thereafter shall have no power or
JUN sdlctlon TO hear or consider APP
phcatlonS for license to any person
IN such county until a majority OF
the legal voters shall vote
against prohibiting the sale Of intox-
icating liquors *AlSo. III major
cty OF the legal votes cast at said
election shall be in favor OF prohibit
ing the sale OF Intoxicating liquors
then after 80 days from the date
OF holding such election ALL LII
CENSES for the sale of Intoxicating
liquors GRANTED in said county
after the passage of this act shall be
null and void and the holder there
Of shall be liable for any sale of
liquors made by him thereafter the
same as if license had NEVER IS
SUED to him" Also, providing for
a surrender of such license within go
days from the date of such election
and a return OF a proportionate
amount OF the money paid Also, a
provision that no license issued prior
TO the passage OF this act shall be
terminated by virtue of this act or
any vote Hereunder"
The provisions of law in force pri-
or to the passage OF the local option
law and now in force in so far as
they are material in this cause are
as follows: 1t shall he unlawful for
any person to SELL barter or
give awav for any purpose OF gain
any spurious, vinous or malt liquors
without first PROCURING FROM
THE BOARD OF COMMISSION
Frs OF the county in which such
hquor IS to be sold A LICENSE AS
hereinafter provided" Providing for
filing an application giving notice etc
and then provides That the Board
OF County Commissioners at such
fa-t I'll =
applicant upon giving bonds to the
State OF Indiana with at least two
.freeholderS suret:es resident within
the saId county to be approved by
the county Auditor in the sum OF two
thousand dollars. eff the applicant
desires to sell spurious, vinous and
malt liquors he shall pay to the treas,
tirer OF the county 500 as a license
fee Tor one year before the license
shall issue to him"
Also, upon the execution OF he
bond required the presentation
of the order of the board OF Commits
s:oners granting HIM license and the
County Treasurer receipt for one
hundred dollars the county Audi. o.
shall issue a license to the applicant"
stating the name OF the applicant,
place of sale and the period of time
for which such license is granted.
Also. no license herein provided
shall he GRANTED for a greater or
less time than one year"
The statute providing that il shall
he unlawful for sad commissioners
or any court to grant license (the
word license meanin1 the written
I al
that the legislature intended that the
license was granted when all the pre-
ip,irary requirements had been com
plied with and the license issued DIV
tile Auditor acting as the clerk OF
the commissioners and that the
words granted and issued when APP
Hlied 10 the certificate or printed IL
cense were syncrvmous.
The county Auditor by virtue OF
his office is Clerk of the Board of
Ccrntv Commissioners. r. S. 1905
Sec. 945s IF the license is TO be
regarded as granted when issued bv
the County Auditor and not when the
order was made by the Board OF
Comm; sSioners and the bond APPROX
ed by the Auditor then plaintiffs IL
cense would be void as having been
granted afte the passage of the act
VI November 10Th, 1908. The case
OF Dudley VS.. State 81 Ind 312 held
that in a case where the order was
made granting the license and the
Bond filed March 5th, 1883 and tie
required fee paid and license issued
March 2Sth, 1883 for the term of one
year from March 5th, 1888, That the
! bsli n Of ,,.a .,,st,
ed from prosecu ion for a sac made
on March IL, 1888 being date be-
tween the date of the order granting
the License and the date of the issue
of the license citing with approval 7s
Ind. 430. The IS Ind at 43O holds
the same rule and cites with approval
noting portions Ut the opinions and
| believe holding he law to be as
announced in the 33 Ind. COG 81 Ind.
246 and an o~inion by the Texas
court in which it is said "The order
o. the County Court to the Clerk
thereof to issue a license does not
OF itself authorize the applicant to
retail licuors but only authorizes the
issuanct OF license to do so after
the applicant shall have complied
with all the prerequisites of the law.
In this cause the Clerk of the Coun-
ty Court ought to have made the Ii
cense prospective After the appli-
cant had produced to the Clerk of
the County Court the County Treas
urer's receipt for tine amount of mon
ev paid by the applicant the license
ought then TO HAVE BEEN
GRANTED to take effect from that
. ,a 81,
~ court acted Upon the application !"
The Supreme Court of Missouri
holds the order is not the license
and when the license is obtained il
looks forward and not backward ~
The Clerk OF the court verv properly
dated his license when it was issued
He referred to the previous order OF
the County Court showing his au-