State ex rel. Ketterling v. Gregory

• Decision Date: 18 June 1910
• Citation: 127 N.W. 733,26 S.D. 13
• Parties: STATE OF SOUTH DAKOTA ex rel. G. C. KETTERLING, Plaintiff and respondent, v. WALLACE GREGORY et al., Supervisors of La Prairie Township, and J. P. Wolf, township clerk, Defendants and appellants.
• Court: South Dakota Supreme Court

26 S.D. 13, 127 N.W. 733 (1910)

STATE OF SOUTH DAKOTA ex rel. G. C. KETTERLING, Plaintiff and respondent v WALLACE GREGORY et al.,

Supervisors of La Prairie Township

and J. P. Wolf, township clerk

Defendants and appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Spink County, SD

Hon. Alva E. Taylor, Judge

Affirmed

Corrigan & Darling

Attorneys for appellants.

Roy T. Bull

Attorney for respondent.

Opinion filed June 18, 1910

CORSON, J.

This is an appeal by the defendants from a judgment awarding a peremptory writ of mandamus. On the 10th day of February, 1910, an alternative writ was issued by the court which, upon a hearing by the court on the 21st day of February, 1910, resulted in a judgment awarding a peremptory writ appealed from. It is recited in the alternative writ, among other things, that La Prairie township in Spink county is a municipal corporation; that more than 30 days prior to the date of the annual town meeting which was to be held within and for said township on the 1st day of March, 1910, to-wit, on the 22d day of January, 1910, there was filed in the office of the town clerk of said township a petition asking that the question "Shall intoxicating liquors be sold at retail?" be submitted to the voters of said township at the said annual election; that said petition was signed by 28 legal freeholder voters of said township; that on the 4th day of February, 1910, the defendants met as the township board of said township, and proceeded to pass on such petition, and rejected the same, and made a record of their proceedings to that effect; that the defendants as such board and clerk have failed to give any notice of such annual election, and the said defendants were required, immediately upon the receipt of the writ, to cause due and timely notice to be given that there would be voted upon at the coming annual township election of said La Prairie township the question "Shall intoxicating liquors be sold at retail?" or that they show cause to the contrary before the court within and for said county of Spink. To this alternative writ the defendants made return, and for answer to the same admitted the filing of the petition on the 22d day of January, 1910, having the signatures of 28 persons, and that on the 4th day of February, 1910, the defendants as the township board considered said petition and rejected the same for the reason that at the time they took said action said petition only contained 23 names, five of those who had signed the petition having withdrawn their names therefrom on the said 4th day of February, 1910, and prior to the action of said board rejecting said petition. It was alleged in the return that the five persons who signed the petition and withdrew their names therefrom were fraudulently induced to sign the same; but in the stipulation filed by the parties no reference is made to any fraudulent acts in obtaining the signatures of these five parties, and the facts as stated and admitted were stipulated as constituting the facts in the case upon which the court might pass.

Three questions seem to be presented by the record, viz:

(1) Did the board as such have any right to pass upon the petition presented to and filed by the clerk? (2) Did the five persons who attempted to withdraw from the petition have the right to so withdraw after the petition was filed with the clerk on the 23d day of January, 1910? (3) Was it competent for the board to reject the petition so filed with the clerk, and refuse to submit the question to the voters at the annual town election?

It is contended by the respondent in support of the judgment of the court below that, when the petition was filed with the clerk 30 clays prior to the March annual meeting for the town election, it was the duty of the clerk to give the required notice, and that the town board had no authority to pass upon the question of the submission to the electors; that the town board had no power to reject the petition, having no jurisdiction to act in the matter; and, lastly, that the five persons who sought to withdraw their names from the petition could not legally do so after the petition was filed with the town clerk within 30 days prior to the said election. These propositions are controverted by the appellants the town board, who insist that it was their right and duty to examine the petition, and, if they found there were not 25 legal petitioners whose names were attached to the petition at the time they took action, to reject the petition and refuse to submit the question to the voters; that at the time they did so reject the said petition the five petitioners had withdrawn their names from said petition; that there were therefore left on said petition less than 25 petitioners; and that the persons so withdrawing had the right to do so at any time prior to the action taken by the board.

Section 2856 of the Political Code, as amended by Chapter 166, Laws 1903, provides as follows:

"At the annual municipal election held in any township, town or city in the state for general municipal purposes, the question of granting permits to sell intoxicating liquors at retail within the corporate limits of such township, town or city shall be submitted to the legal voters thereof upon petition signed by 25 legal freeholder voters of such township, town or city, to be filed with the clerk or auditor of such township, town or city, thirty days before election, which petition shall state that a vote is desired upon such question. The question shall be submitted," etc.

It will be observed therefore from these provisions of the law that a petition shall be filed in the office of the township clerk signed by 25 legal freeholders of such township 30 days before the election. There seems to be no question raised in this case as to the legality of the petition, or the time of filing; nor is it disputed but that it was signed by 25 legal freeholder voters of the township, and that no attempt had been made to withdraw any signatures at the time when the 30 days prior to the election had commenced to run. We are of the opinion that the respondent is right in his contention that, when the petition was filed with the town clerk and contained the requisite number of petitioners, it became the duty of the clerk to give notice of the same as required by law, and that the town board as such had no right or authority to take any action upon the petition. We are also of the opinion that after the petition was filed with the town clerk, and within 30 days prior to the election, the parties signing the same could not legally withdraw their names from said petition, and that the action of said petitioners in attempting to withdraw their names from the petition within the 30 days prior to the election was void and of no effect. While it may be conceded that the petitioners, prior to the filing of the petition with the town clerk, had the right to withdraw therefrom, it was the duty of the petitioners to exercise such right a sufficient time before the commencement of the 30 days prior to the election to enable the party filing such petition to procure and file a new petition.

The contention of the appellants that the town board had authority to act upon and reject the petition is clearly not sustained by either the statute in question or the general statute conferring upon the town board its powers. It is not claimed by the appellants that the town board had any special authority given to it by the law to pass upon and reject the petition, but they claim that it was a power necessarily incident to the general powers conferred upon the board. This contention is clearly...