Darling v. Boesch

• Decision Date: 15 December 1885
• Parties: DARLING v. BOESCH ET AL. (TWO CASES.)
• Court: Iowa Supreme Court

25 N.W. 887

67 Iowa 702

DARLING v. BOESCH ET AL. (TWO CASES.)

Supreme Court of Iowa, Des Moines

December 15, 1885

Appeal from Des Moines Circuit Court.

THESE causes involve the same questions, were submitted on the same abstract, and will be disposed of in one opinion. Plaintiff is a citizen and a resident of Des Moines county, and defendants are the members of the board of supervisors of said county. George Bandleon and John Kneuzler made application to the board of supervisors for permits to manufacture, buy and sell intoxicating liquors in said county. At the time appointed for the hearing of said applications plaintiff appeared and showed cause why such permits should not be granted. The board, however, granted the permits. Plaintiff then instituted these suits, and he alleges in his petitions that the board of supervisors acted unlawfully, and exceeded its jurisdiction in granting said permits, for the following reasons: (1) That the applicants therefor did not first procure and present to the county auditor certificates signed by a majority of the legal electors of the township, town or ward in which they desired to sell intoxicating liquors, setting forth that they were citizens of the county, and men of good moral character, and proper persons to manufacture, buy and sell such liquors. (2) That said applicants were not proper persons to receive such permits; that they were saloon-keepers, and had been constantly engaged in the business of keeping saloons and selling intoxicating liquors in violation of the laws of the state since their applications were filed. The prayer of the petition is that a writ of certiorari issue commanding the defendants to certify to the circuit court a transcript of the records and proceedings in reference to said applications and the granting of said permits. The circuit court sustained demurrers to the petition, and from these orders plaintiff appeals.

REVERSED.

Newman & Blake, for appellant.

Hall & Huston, for appellees.

REED J. ROTHROCK, J., dissenting.

OPINION

REED, J.

I.

One of the grounds of demurrer is that "plaintiff has no right or interest that entitles him to call for the writ. He has no property interest or office that is affected." The general rule undoubtedly is that an action of certiorari or mandamus cannot be maintained for the correction of irregularities or errors in the proceedings of the board of supervisors by one having no pecuniary interest in the proceedings. This has been repeatedly held by this court. See Welch v. Board of Supervisors, 23 Iowa 199; Smith v. Yoram, 37 Iowa 89; Iowa News Co. v. Harris, 62 Iowa 501. But in our opinion, the present case is not governed by that rule. Section 1530 of the Code is as follows: "At such final hearing, any resident of the county may appear and show cause why such permit should not be granted, and the same shall be refused, unless the board shall be fully satisfied that the requirements of the law have, in all respects, been complied with; that the applicant is a person of good moral character; and that, taking into consideration the wants of the locality and the number of permits already granted, such permit would be necessary and proper for the accommodation of the neighborhood." Under this provision, the board is required at the final hearing of the application to determine these questions: (1) Whether the requirements of the law have been complied with; (2) whether the applicant is a person of good moral character; and (3) whether the permit is necessary for the proper accommodation of the neighborhood. In determining these questions the board exercises judicial functions.

The section also permits any citizen of the county to appear at the hearing, and show cause why the permit should not be granted. In resisting the granting of the permit, he may make a showing with reference to either of the questions which the board is required to determine. He may introduce evidence to negative either of the facts which the statute provides must be proven before the permit shall be granted. He, in effect becomes a party to the proceeding. He has the right to call and examine witnesses, and to introduce documentary evidence on the hearing. He is allowed to do this, not because he has any pecuniary interest in the proceeding, but because, as a resident of the county, he is interested in the faithful execution of the laws within the county. As a citizen of the county he has the right to demand that permits to sell intoxicating liquors shall be granted only to persons of good moral character who have fully complied with the requirements of the law, and when they are necessary for the proper accommodation of the neighborhood; and the statute, recognizing his right in this respect, permits him to become a party to any proceeding for the granting of a permit, and to resist the application. As the law permits him to become a party to the proceeding, and recognizes in him such interest and right as entitles him to become a party, it follows necessarily, we think, that he is entitled to have the proceeding reviewed, and the errors and irregularities therein corrected, by the mode prescribed by law for the correction of errors and irregularities in such proceedings. His right to maintain...