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Groscop v. Rainier el at.

appeal, the circuit court of the county did the like, under like circumstances, it must be held, we think, that such applicant has waived all objections to the appellees as remonstrants, and is estopped to deny that they were, as they claimed to be, legal voters of the proper town.ship. This is in harmony with numerous decisions of this court, to the effect that, on an appeal from the board of commissioners to the circuit court of the county, nothing can be tried except what appears to have been in issue before such board. Green v. Elliott, 86 Ind. 53; Forsythe v. Krenter, 100 Ind. 27; Osborn v. Sutton, 108 Ind. 443.

Appellant's counsel also insist that the trial court erred in refusing to modify its oral instructions, when the jury were recalled into court for further instructions. In their remonstrance appellees had charged appellant with immorality, in that he was a common gambler, that he was, and for the six months then last past, had been the proprietor and keeper of a building and room to be used and occupied for gaming, and knowingly permitted the same to be used and occupied for gaming, and that he was in the habit of frequenting places where gaming was permitted to be carried on. When the jury were recalled for further instructions, the trial court directed their attention to the specific charges of immorality in the remonstrance, and correctly instructed them that they were not to consider the immorality of the appellant in any other respect or particular except those specified in the remonstrance. No complaint is made here of this oral instruction as given, but only of the court's refusal to modify the same, as follows:

"That, even though the jury might find that the applicant was guilty of being a common gambler, or of having kept a gambling house, still, such facts would not, of themselves, be an absolute disqualification of the applicant for a license; but it was a question for the jury to say whether or not such violations of law, if they existed, were sufficient to disqualify the applicant for a license."

(iroscop v. Rainier et aL

We are clearly of the opinion that the court committed no error in refusing to give the jury this modification, as requested by appellant, of its oral instruction. Appellees charged the applicant with immorality, in that he frequented places were gaming was permitted to be carried on; and the jury found specially that "such applicant, by frequenting places of gambling, is an immoral man." From the fact thus found, it is not a question for the jury to say, but the law concludes inevitably that such immorality unfits the applicant to be intrusted with the sale of intoxicating liquor.

We have already said, and we say again, " It was clearly an immorality on the part of appellant to frequent places of gambling; for, under section 2085, R. S. 1881, whoever 'frequents any place where gambling is permitted,' is pronounced a 'common gambler,' and, upon conviction thereof, is liable to fine and imprisonment." It is a public offence to be a "common gambler," and to be guilty of a public offence is an immorality within the meaning of the word, as used in the law regulating and licensing the sale of intoxicating liquors.

Finally, appellant's counsel claim that the trial court erred in permitting appellees to withdraw certain interrogatories propounded by them to the jury trying the cause, "over the objections and exceptions of the applicant." What were the grounds of appellant's objections to the withdrawal of these interrogatories from the jury the record of this cause fails to disclose.

In Summers v. Greathouse, 87 Ind. 205, it was held, substantially, that it would be error to withdraw from the jury pertinent and material interrogatories, which have been submitted to them at the request of the parties. In the case in hand the interrogatories, which the trial court permitted appellees to withdraw from the jury, are not in the record now before us, and we do not and can not know from the record that sucli interrogatories were pertinent and material; indeed, as all reasonable presumptions must be indulged here Griebel v. The State, ex rel Niezer.

in aid of the action of the trial court, we must presume, in
the absence of any showing to the contrary, that the court
allowed appellees to withdraw their interrogatories because
they were impertinent and immaterial, and that the ruling of
the court complained of was not erroneous. Myers v. Murphy,
60 Iud. 282; Foster v. Ward, 75 Ind. 594; Frank v. Grimes,
105 Ind. 346.

We have found no error in the record of this cause which
authorizes or requires the reversal of the judgment.
The judgment is affirmed, with costs.
Filed June 28, 1887.

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No. 13,447.

Griebel V. The State, Ex Bel. Niezeb.

Office And Officer.Quo "Warranto.Information in Nature of, Proper Proceeding for Obtaining Possession of Office.—An information in the nature of a quo uxtrranto is the appropriate remedy for obtaining possession of an office to which a person, duly qualified, has been legally elected. It is also the proper remedy for the removal of the incumbent of an office, ■who has usurped and illegally continues to hold it, and both remedies may be sought.by the same information.

Same.County Auditor, Term of.— Breaking of Regular Succession.— Where there has been an unbroken succession of terms from the adoption of the existing State Constitution to the present time, and no general acquiescence in a different day or lime, the commencement of the term of a county auditor dates back to, and is governed by, the time at which the term of the auditor who was in office when the Constitution took effect expired. Where, however, the regular succession of terms has been broken by vacancies or other incidental causes, the term of a newly elected auditor begins when the regular or provisional term of his predecessor expires.

Same —Estoppel.—It is only when his successor has not been chosen and qualified that a county auditor can continue in office beyond his term, and whenever such officer has, in pursuance of an election to the office,

Vol. 111.—24

Griebel v. The State, ex rel. Nieier.

.—j—. , , .

served the full term of four years, and his successor has been dulyelected and qualified, he is estopped from denying that his term of office has expired.

Constitutional Law. —Repeal of Old Constitution by Inconsistent Provisions of New.Statute.Repeal by Implication.—The adoption of a new Constitution repeals and supersedes all the provisions of the older Constitu • tion, not continued in force by the new instrument; and the same rule applies to amendments of an existing Constitution, which are inconsistent with the original text of the instrument amended; also to statutory enactments which are inconsistent with later constitutional provisions embracing the same subject-matter.

From the Allen Circuit Court.

J. Morris, J. AT. Barrett, R. 0. Bell and S. B. Morris, for ■ appellant.

W. G. Colerick, for appellee.

Niblack, J.—This proceeding is based upon an information in the nature of a quo warranto, against Adolph Louis Griebel, in the name of the State, and on the relation of John B. Niezer.

The information gives the court to understand and to be informed that on the 7th day of November, 1882, at a general election held on that day, in the county of Allen, in this Suite, the said Griebel was duly elected auditor of said county of Allen, and that after having duly qualified, he, on the 17th day of that month, entered u\mn the duties of the office to which he had been so elected; that, under the Constitution and laws of this State, the said Griebel was entitled to hold said office for and during the period of four years from the 13th day of said month of November, 1882, and until his successor should be elected and qualified; that at the general election held in said county of Allen, on the 2d day of November, 1886, the relator Niezer was lawfully elected auditor of that county as the successor of the said Griebel; that the said relator was, at the time of his said election, and still is, eligible to the office of auditor to which he was so elected; that, on the 6th day of said month of November, 1886, a commission was duly issued to the relator by the Governor Griebel v. The State, ex rel. Niezer.

in pursuance of his said election, and that on the 13th day of said month he, the relator, executed an official bond as such auditor, and took the oath of office required by law; that, on the 17th day of said month of November, 1886, the relator demanded of the said Griebel that he should surrender said office of auditor, and all the books, papers and property pertaining to the same, to him, the relator, but that the said Griebel wholly failed and refused, and still fails and refuses, to comply with said demand, and has ever since usurped and illegally continued to hold said office, and still continues to hold the same and to perform the duties pertaining thereto in violation of the rights and to the prejudice of the relator. Wherefore the relator prays that the said Griebel be ousted from said office, and that he, the relator, may be declared entitled to the possession thereof, and that he may have all other and proper relief.

A demurrer to the information being first overruled, Griebel answered, admitting that he was elected auditor of Allen county on the 7th day of November, 1882, as alleged in the information, but averring that at that time one Martin E. Argo was the incumbent of said office, and that on the 17th day of that month the said Argo requested him, the said Griebel, to take immediate possession, and to enter upon the duties of the office; that he, the said Griebel, thereupon informed the said Argo that his term of office would not commence until either the 1st day of March or the 1st day of November, of the year 1883; that the said Argo nevertheless desired that he, the said Griebel, should immediately take possession of the office, which he consented to do, and did at once, continuing ever since in the possession of the same, and in the discharge of the duties thereof, under a claim that his term of office will not expire until the 1st day of November, 1887, at which time he will be ready to surrender the office to which the relator has been elected as stated in the information; that the relator's term of office does not begin until said 1st day of November, 1887.

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