Green v. Smith

• Decision Date: 14 April 1900
• Citation: 82 N.W. 448,111 Iowa 183
• Parties: GREEN v. SMITH ET AL.
• Court: Iowa Supreme Court

111 Iowa 183

82 N.W. 448

GREEN

v.SMITH ET AL.

Supreme Court of Iowa.

April 14, 1900.

Appeal from district court, Fayette county; L. E. Fellows, Judge.

On the 1st day of December, 1897, there was filed with the county auditor of Fayette county a statement of consent to the sale of intoxicating liquors in said county. At the January, 1898, session of the board of supervisors, this statement was canvassed, and a finding made by the board that it contained the names of more than 65 per cent. of the legal voters of the county who voted at the last preceding general election. Thereafter the plaintiff filed a general denial as to the sufficiency of the statement and the correctness of the board's finding, and an appeal was taken to the district court. It was there stipulated that the total number of votes, as shown by the poll lists of 1897, is 5,504, and the net number of signatures on the statement of consent was 3,621, being 43 in excess of 65 per cent. of the total vote. It was also stipulated that, before final action on the statement by the board of supervisors, 70 persons filed applications asking to have their names stricken from the statement, and not counted thereon. There was a trial to the court, and a finding that the names of the 70 persons above mentioned should not have been counted for the statement, and the statement was held insufficient. The defendants appeal. Affirmed.Ainsworth & Ainsworth, C. H. Quigley, Phillips & Whitney, and W. B. Ingersoll, for appellants.

Hoyt & Hancock, for appellee.

SHERWIN, J.

In the trial in the district court the county attorney was permitted to appear for the plaintiff, against the objection of the defendants, and this is the first error assigned. Section 2450 of the Code provides that, if the board shall find the statement sufficient, any citizen of the county may file a general denial as to the statement, and directs that the county attorney shall then cause a notice thereof to be served upon the persons filing the statement, and appear for the state upon the hearing before the district court. It also makes it the duty of the county attorney to appear in the district court and defend the action of the board in case an appeal is taken from its finding that the statement is insufficient. The statute itself requires the county attorney to appear against the statement in all proceedings before the district court upon appeal, and the court rightly permitted him to do so.

2. The defendants demanded a trial by jury, and this the court refused,--as we think, properly. This is a special proceeding. In its inception there were no parties to it, either plaintiff or defendant. There was no private right to be protected or enforced, nor any private wrong to be prevented or redressed. It was an ex parte statement of consent to the sale of intoxicating liquors by any one who might comply with the law relating thereto. An appeal from the finding of the board of supervisors did not change its nature, notwithstanding the fact that interested persons were required to file a bond for the costs of a trial de novo in the district court. The statute in question does not require a trial by jury, and in such cases we have held that it is not an absolute right, and the general holding of this court has been against such trial in special proceedings. Gilruth v. Gilruth, 40 Iowa, 346;Davis v. City of Clinton, 55 Iowa, 549, 8 N. W. 423;In re Bresee, 82 Iowa, 573, 48 N. W. 991;Gates v. Brooks, 59 Iowa, 510, 6 N. W. 595, and 13 N. W. 640;Duffield v. Walden, 102 Iowa, 676, 72 N. W. 278;In re Bradley (Iowa) 79 N. W. 280.

It is contended that, after a statement of consent has been filed with the auditor of the county, it becomes...