The Plymouth tribune. (Plymouth, Ind.) 1901-1911, 1909-07-01

MlCnlgdn Sl1ecI, OliS vi eirS i@'
10 90 out of business in Plymouth,
closed ITS doors at IL o'clock Tuesday
evening to remain closed. Shortly!
before a telegram had been received
by Edward Shipley, the proprietor,
that Judge Bernetha, at Chambers IN
Rochester had decided against him,
i'm his suit to determine whether he
should have closed his doors on june
or TO be permitted to run until De-
cemlber 5. The suit was brought
in the form of an injunction against
Otis Kebert, the marshal OF the city
OF Plymouth, and h L. Unger prose
cutting attorney of this the 4lst Jul
dicial district, to prevent them from
Selling liquors which he had IN mrs
possession. The question to be de-
cided was whether the liquor license
vert into effect when 1t was granted
by the commits or when II was
paid for and taken out by Shipley
The license was granted by the COM
missioners on October 9th, 1908, but
was not taken out until December
5rh. Between that time the local op-
tion law went into effect by procla-
nation Of the governor with its nine
ty day closing clause, which was to
affect all licenses granted after its
passage, but none before its passage.
Thus the question was whether the
license was in effect upon its grant
ng by rhe board or upon the taking
,ut OF the same by Shipley. The
court at Rochester decided that it
was in effect when it was finally tax
en- out by Shipley and not before
The Decision.
The following is a complete deci-
sion OF Judge Bernetha, and fully
covers the case and the questions in
volved:
State OF Indiana, Marshall County,
So:
Edward Shipley
John Zeider, Daniel w Jaccby Mar
shall OF Plymouth, Ind. and Harry
L. Unger prosecuting attorney.
lhe complaint in this cause was FL
se June 9th, 1909 A restraining or
ssued June 5th, 1909. notice given
I'd me application for temporary re-
.raii.ing order sei for hearing June
lit. 1909 at whici time plaintiff APP
cared before the Judge i'll Chamb-
= at Rochester, Indiana 10y Charles
,el.ison ara Harley A. Logan, at
.orEeys and the defendant by Adam
:. Mise and Harry L. Unger, attor-
ieys, An amended complaint WAS
Led 10y plaintiff and a demurrer filed
the amended complaint; also mo
-gVn TO dissolve the restraining order
| or reasons shown III the motion. Ar
| sument heard on demurrer and mo-
ion and taken under advisement.
The matter has been ably presented
1
| 1t proper to say that the claims OF
the parties have been earnestly and
| ably presented i'm such ma 1ner as 10
indicate that tne proceedings are IN
good faith 10 secure construct IN
III the law as it affects the rights OF
the parties, plaintiff and defendant in
the cause and | have so considered
ii.
The Supreme Court has held that a
proceeding such as Is sought TO be
enJolned IN this action IS a proceed
ing III rem and Is not a criminal az
ZION and l believe that if the facts
stated in the complain are sufficient
TO entitle the plaintiff to an injunc-
ton the restraining order should not
be dissolved on the ground that all
adequate remedy at law exists The
remedy at law TO defeat an applica-
ton for Injunction must be plain,
adequate and sufficient. That plain
tiff in this cause alleges that his prop
erty will be seized and removed and
his business destroyed before he can
be heard in his defense in an action
at law He also alleges that the
party filing the affidavit is insolvent.
The officer having a valid writ issued
by court having jurisdiction would
be protected from liability so that it
appears the remedy at law will not
be adequate or sufficient. The court
IS then called on to construe the
statutes and decide as to the con
Struction of the Local Option"
statutes in SO far as it applies, to the
| rights OF plaintiff having a. license
issued after the statute was passed.
The plaintiff in this cause states
chat on Cctober 3rd, 1908, plaintiff
filed in the Auditors office OF Mar
shall county his application for Ii
cense and at the same time filed his
bond That said bond was approved
by the Auditor and on the 9th day of
October. 1908, the Board Of Commits
sioners found that the apple alton
was in proper form, the applicant a
proper person and that he had given
notice as required by law. And on
said day granted to said applicant a
license. That on the 9Th day of De-
cemher. 1908, said applicant paid TO
the Treasurer Of Marshall county the
SUM- of one hundred dollars and paid
to the Auditor OF Marshall County,
In Hama, his fee for the issue of the
license and on said day the Auditor
OF Marshall County. Indiana executed
TO applicant liquor license and al
leging other facts in the complaint
which ! believe are sufficient to en-
title the plaintiff to an injunction if
his license was not affected by tie
local option law which II is conceded
by counsel for plaintiff and defend
ants was passed and became operat-
i've November Goth, 1908. The COM
plaint further alleges that petition
was filed in the Auditors office of
Marshall County TO- an election and
election held on the 18th day OF
March. 1909 and the certificate filed
with the Auditor OF the county de-
claring the result Of the election as
follows: That maj ority of the le-
gal votes east at such special cleo
tion IS in favor of prohibiting the
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