H. H. Sawyer v. Lorenzen
| Decision Date | 26 October 1910 |
| Citation | 127 N.W. 1091,149 Iowa 87 |
| Parties | H. H. SAWYER, Appellant, v. LORENZEN & WEISE, ET AL |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--HON. WM. HUTCHINSON, Judge.
ACTION in equity to enjoin the maintenance of an alleged liquor nuisance. Decree dismissing bill, and plaintiff appeals.
Affirmed.
John F Joseph, for appellant.
Robert H. Munger, for appellees.
The defendants are the proprietors of a liquor saloon situated upon certain described lots in the town of Cushing and claim to be conducting the business in accordance with and under the protection of the so-called "mulct statute." It is stipulated that defendants have complied with all the provisions of said statute, unless it be as to the matter of filing with the county auditor a certified copy of the resolution of consent adopted by the town council of Cushing and the further matter of procuring and filing the consent of all resident freeholders owning property within fifty feet of their saloon. Among the conditions to be complied with before the liquor seller comes within the protection of the statute, it is required that "The person appearing to pay the tax shall file with the county auditor a certified copy of a resolution regularly adopted by the city council consenting to such sales by him and a written statement of consent from all the resident freeholders owning property within fifty feet of the building where said business is carried on." Code, section 2448. The question presented by the record is upon the sufficiency of the defendant's compliance or attempted compliance with these provisions.
I. The objection to the consent of the property owners is based upon the fact that the defendants themselves own most of the property within fifty feet of the saloon building, and their consent does not appear to have been filed with the county auditor. But we think this contention on the part of appellant calls for an unreasonably strict construction of the statute. The clear purpose of the enactment in this respect is to enable resident property owners if so disposed to prevent the establishment of a saloon within the prescribed limits. To require the proprietor of such business to file his consent to his own voluntary act would be an absurdity. The district court was right in refusing to find any violation of the law on the ground here mentioned.
II. The other ground upon which injunction is demanded presents a more debatable question. As already noted, the statute requires the person proposing to do business under its terms not only to pay the mulct tax, but also among other things to file with the auditor "a certified copy of a resolution by the town council consenting to his engaging in the business of selling intoxicants." The only paper filed with the auditor and relied upon by the appellees as filling this requirement is in the following form: Indorsed on the back is the following:
The town recorder as a witness testified that the motion or resolution thus indicated was presented to and adopted by the council and spread upon the record book, and that the paper is a copy of such record. This testimony is objected to by appellant as incompetent and not the best evidence, and for the purposes of this appeal we may concede the point. It may also be conceded that strict compliance with the terms of the statute is necessary to bar the prosecution of the defendants upon the charge of maintaining a nuisance. For instance, it would not be enough for the defendant to file a paper which is in fact an accurate copy of the resolution if it be not certified as such, nor would it be any defense to produce the recorder with his books and show that such a resolution was in fact duly adopted if it appears that a certified copy thereof had not been filed. We are therefore left to inquire whether the paper in question may fairly be said to be a certified copy of a resolution of consent by the town council. This involves a determination whether the action of the council which is thus recorded amounts to a resolution of consent. The motion or resolution is exceedingly informal, but we are disposed to hold that it is not fatally defective. No form is prescribed by statute, and any statement or language which fairly conveys the idea that the council consents to the establishment of the defendants' saloon should be so construed by the courts. The word "license" employed in the resolution is not in all respects the equivalent of consent, but it certainly includes it, and it would be an exceedingly technical and captious holding to say...
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