State v. Sopher. 1900, during the said August term, an amended remonstrance was filed by the remonstrators, and various motions were made in said cause, and on the 23rd day of November, 1900, at the time of the trial of appellee on the said charge of the unlawful selling of liquor, said cause still remained pending and undetermined in the said Tipton Circuit Court. On July 14, 1900, in Hamilton county, Indiana, appellee, assuming to act under his said license, sold to one Lee Farley, a pint of intoxicating liquors, to wit, whiskey, for the price of twenty-five cents. Appellee admitted this sale and sought to justify his action in selling it under the authority of the license granted to him by the board of commissioners. The lower court, on the foregoing facts, gave to the jury the following instruction: "If you find from the evidence that in December, 1899, the board of commissioners of this county upon petition and notice granted the defendant a license to sell liquors in less quantity than a quart at a time, that defendant gave bond approved by the auditor, and the auditor issued the accused a license to sell such liquors, that the sale charged herein was made under such license and at the premises described therein, then you should find the defendant not guilty. In such case it makes no difference that certain remonstrators appealed from the order of the board granting such license. The license would protect the defendant from sales made pending such appeal, and if the appeal is still pending the defendant had the right to make the sale charged herein and you should in such case find the defendant not guilty." To the giving of this charge, the State, through its prosecuting attorney, duly excepted, and reserved thereon a question of law for the decision of this court on the appeal of said cause. Passing the deficiency of this instruction arising out of its omission to inform the jury that it was also incumbent upon the appellant to pay to the county treasurer the license fee of $100, as required by §5 of the act of 1875, as amended in 1897 (Acts 1897, p. 253), §7281 Burns 1901, * * State v. Sopher. $5316 Horner 1897, in addition to giving the required bond, before the auditor, under the law, would be authorized to issue to him the license awarded him by the board, we may proceed to determine whether the court, by this charge, when applied to the facts in this case, properly construed or interpreted the meaning of the proviso in controversy. Section 4 of the liquor law of 1875, being $7279 Burns 1901, §5315 R. S. 1881 and Horner 1897, provides that "The board of county commissioners, at such term, shall grant a license to such applicant upon his giving bond to the State of Indiana, with at least two freehold sureties resident within said county, to be approved by the county auditor, in the sum of $2,000, * Provided, Said applicant be a fit person to be intrusted with the sale of intoxicating liquor, and if he be not in the habit of becoming intoxicated; but in no case shall a license be granted to a person in the habit of becoming intoxicated: Provided, That no appeal taken by any person from the order of the board granting such license shall operate to estop the person receiving such license from selling intoxicating liquor, thereunder, until the close of the next term of the court in which such appeal is pending and at which such cause might be lawfully tried; and he shall not be liable as a seller without license for sales made during the pendency of such appeal, but he shall be liable for the violation of any of the provisions of this act during such time, the same as if regularly licensed." As previously said, it is the part of section four embraced in this last proviso over which the controversy in regard to the proper construction thereof arises. When the instruction in question is considered, it discloses that the trial court was of the opinion that at the time the accused sold the intoxicating liquor in controversy he was protected by his license under this provision of the statute, notwithstanding the fact that the appeal taken by the remonstrators to the circuit court from the order of the board was still pending undetermined on the docket of the Tipton Circuit Court. State v. Sopher. Or, in other words, the court construed this provision of the statute to mean that such appeal at no time during its pendency would operate to suspend or terminate the right of the appellee to sell intoxicating liquors under the license granted to him by the board of commissioners. It is manifest that the question presented by the State, in respect to the alleged error of the court in charging the jury under the facts in this case, must necessarily depend for a solution on the meaning and scope of the provisions of the above proviso. It has been settled by numerous decisions of this court that an appeal to the circuit court from an order of the board of commissioners stands for trial de novo, and that such appeal operates to suspend or vacate the proceedings and order of the board from which it is taken. Meehan v. Wiles, 93 Ind. 52, and cases there cited; Lincoln v. State, 36 Ind. 161; Hardy v. McKinney, 107 Ind. 364; Head v. Dochleman, 148 Ind. 145, and cases there cited. Aside from the general rule which governs appeals to the circuit court from boards of commissioners, justices of the peace, and other inferior courts or tribunals, such would necessarily be the effect of $7864 Burns 1901, §5777 R. S. 1881 and Horner 1897, which pertains to appeals from boards of commissioners, and which has been in force since 1853. This section provides that every appeal from the board of commissioners to the circuit court "shall be docketed among the other cases pending therein, and the same shall be heard, tried and determined as an original cause." Under this provision of the law it has been universally held by this court that appeals from boards of commissioners stand for trial in the circuit court de novo and that such appeal suspends or vacates the order of the board and all proceedings in the matter. Hardy v. McKinney, 107 Ind. 364, and cases there cited. The rule declared and enforced by this court under this section, long before the passage of the liquor law of 1875, had been held by this court to apply to appeals taken by State v. Sopher. remonstrators to the circuit court from an order of the board of commissioners granting a license to an applicant to sell intoxicating liquors under the liquor law of March 5, 1859. Such appeals were held to suspend or vacate the order of the board and the right of the licensee to sell under the license granted to him. Molihan v. State, 30 Ind. 266; Young v. State, 34 Ind. 46; Blair v. Kilpatrick, 40 Ind. 312; Mullikin v. Davis, 53 Ind. 206. It is true that the liquor law of 1859 had been repealed prior to the enactment of the act of 1875, by an act of the legislature known as the Baxter law, passed in 1873. If we eliminate the proviso in controversy from the act of 1875, the latter in its general provisions and scope will be found, in the main, to be similar to the act of March 5, 1859. 1 Gavin & Hord, p. 614. We may then reasonably presume that the legislature which enacted the law of 1875 recog nized what the effect of an appeal to the circuit court from an order of the board of commissioners granting a license, taken by persons who might remonstrate under the authority of that statute, would be upon the right of the licensee to sell under his license during the pendency of such appeal, when tested by the rule declared by this court in respect to the effect of such appeal under the former law; hence the reason or cause which prompted the legislature to modify or change the rule, by virtue of the proviso in dispute, must be evident. The question presented then is, to what extent did the legislature intend to modify the operation of the rule which had been previously held to be applicable to an ap peal by remonstrators from an order of the board granting a license to a person to sell intoxicating liquors? In struing a statute, or any part thereof, courts are not authorized to disregard the plain language employed by the law makers in its enactment. It is the duty of the court to accept the act as written, and if valid to enforce it as enacted. And where the law is clear upon its face, and when standing alone is fairly susceptible of but one construction, con State v. Sopher. that construction must be given. It has been properly said. by the Supreme Court of the United States that the province of construction lies wholly within the domain of ambiguity. Hamilton v. Rathbone, 175 U. S. 414-421, 20 Sup. Ct. 155, 44 L. Ed. 219. * The language of the proviso in question is: "That no appeal taken by any person from the order of the board. granting such license shall operate to estop the person receiving such license from selling intoxicating liquor, thereunder, until the close of the next term of the court in which such appeal is pending and at which such cause might be lawfully tried; and he shall not be liable as a seller without license for sales made during the pendency of such appeal, but he shall be liable for the violation of any of the provisions of this act during such time, the same as if regularly licensed." (Our italics.) A reading of this particular provision demonstrates the fact that it may be said to be uncertain or ambiguous, at least in two respects: (1) As to what is meant or intended by the words "the term of court * at which such cause might be lawfully tried"; (2) as to the meaning of the clause "he shall not be liable as a seller without license for sales made during the pendency of such appeal." Where a statute is of a doubtful or uncertain meaning, and susceptible, upon its face, of two constructions, courts, in order to discover the true legislative intent and purpose, may refer to prior or contemporaneous acts. They may inquire in respect to the reasons which prompted the legislature in the enactment of the law, and also may consider the mischief, if any, intended to be remedied, and may consider the situation and condition of affairs existing at the time of the passage of the law, and all acts in pari materia passed either before or after the statute in question, whether repealed or unrepealed. All may be referred to and considered in order to discern what the legislature intended by the use in the statute of some particular term or VOL. 157-24 |