Ege v. Williams

• Decision Date: 13 November 1916
• Docket Number: No. 3978.,3978.
• Citation: Ege v. Williams, 159 N.W. 898, 38 S.D. 50 (S.D. 1916)
• Parties: EGE et al. v. WILLIAMS, Mayor, et al.
• Court: South Dakota Supreme Court

38 S.D. 50

159 N.W. 898

EGE et al.

v.WILLIAMS, Mayor, et al.

No. 3978.

Supreme Court of South Dakota.

Nov. 13, 1916.

Appeal from Circuit Court, Turner County; R. B. Tripp, Judge.

Action by W. E. Ege and others against Frank Williams, as Mayor of the City of Centerville, a municipal corporation, and others. From a judgment denying the relief prayed for, plaintiffs appeal. Affirmed.Bogue & Bogue, of Centerville, for appellants.

Joseph Janousek, of Yankton, and W. R. White, of Centerville, for respondents.

WHITING, J.

The question, “Shall intoxicating liquors be sold at retail?” was submitted to the voters of the city of Centerville, S. D. A majority of the ballots cast were in favor of such sale. The question was submitted upon the same ballot upon which were found the names of the candidates for the various municipal offices. Immediately after the declaration of the result of such election upon this question, a contest was instituted, seeking to have such election declared void, owing to the failure to comply with the statute and submit the question upon a separate ballot. The trial court held the election legal. This judgment was rendered in June. After the holding of the election, and pending the decision of the trial court, defendants Hewett and Griffin presented petitions to the proper authorities, seeking permits to sell intoxicating liquors in said city for the year commencing July 1st. These petitions were not acted upon until after the judgment of the trial court. The petitions were then granted, and the petitioners each paid into the treasury of said city the license fee required under the ordinances of such city and received the permits asked for. Commencing with July 1st, these defendants entered upon the sale of intoxicating liquors under such permits. An appeal was taken from the judgment of the trial court, and this court, in the case of Tuntland v. Noble, 30 S. D. 145, 138 N. W. 291, Ann. Cas. 1915A, 1004, reversed the lower court, and held invalid the election upon the above-mentioned question. Upon receiving notice of the decision of this court, said defendants closed their saloons. They thereafter each sought reimbursement from the city of Centerville for such proportion of the license money paid as the period of the license year remaining after the decision of this court bore to the whole year for which licenses were paid and permits issued. Such claims being presented to the said city, the council thereof-five of the six members elect being present-by a vote of 3 for, 1 against, and 1 not voting, voted in favor thereof. The city auditor drew a warrant therefor but the then acting mayor refused to sign same, but the present council will pay the claims unless restrained. This action was instituted by plaintiffs as electors and taxpayers of said city, and plaintiffs seek to restrain the city and its corporate officers from paying, or attempting to pay, or from issuing any warrants, or doing any acts or things in reference to paying, the said claims; and plaintiffs ask that said claims be declared void. The trial court denied the relief prayed for, and from such judgment, this appeal was taken.

Appellants contend that the payment of the license money was a voluntary payment, and...