McKeever v. Beacom

• Decision Date: 04 February 1897
• Citation: 70 N.W. 112,101 Iowa 173
• Parties: MCKEEVER v. BEACOM.
• Court: Iowa Supreme Court

101 Iowa 173

70 N.W. 112

MCKEEVER

v.BEACOM.

Supreme Court of Iowa.

Feb. 4, 1897.

Appeal from district court, O'Brien county; George W. Wakefield, Judge.

Plaintiff, in his petition, averred his ownership of certain property in the city of Sheldon, Iowa; that the requisite number of signers to a statement of consent to the sale of intoxicating liquors within the county under the provisions of the “Mulct Law” had been obtained and filed with the county auditor, as provided by law; that all the prerequisites of the law had been complied with, permitting the sale, without penalty, of intoxicating liquors within said county, and in the city of Sheldon; that the city council had given its consent to the sale of intoxicating liquors within the limits thereof, and that the consent of all of the property owners and holders within 50 feet of the property of plaintiff, to the sale of intoxicating liquors in and upon said property, had been obtained; that defendant had filed the required bond. Plaintiff avers that after all this had been done he leased his property to the defendant, by an oral lease, for the purpose of its being used by the defendant for the selling of intoxicating liquors therein in accordance with said mulct law, and, as a compensation for the rental of said premises, defendant agreed to pay, in addition to and as a part of the rental price of said premises, the tax which might be assessed against said property under the provisions of chapter 62 of the Laws of the 25th General Assembly of Iowa; thereafter the tax was duly assessed and levied against said property, and became a lien thereon, and, defendant failing to pay the same, a penalty was added thereto; that, the treasurer of said county being about to sell said property for said tax and penalty, and the defendant refusing to pay the same and to protect his property from such sale, plaintiff paid the same, and this action is brought to recover the amount so paid. To this petition the defendant demurred. There are several grounds stated in the demurrer. The grounds which seem to be relied upon are: First, that the payment made by plaintiff was voluntary, and hence there can be no recovery; and, second, that the contract was illegal and against public policy. The demurrer was sustained, and a judgment entered against the plaintiff for costs, from which ruling and judgment he appeals. Reversed.Allen & Cullen, for appellant.

Boies & Roth, for appellee.

KINNE, C. J.

1. As the appellee does not insist upon his contention that the payment of this tax by the appellant was voluntarily made, and therefore cannot be recovered back, we shall give it no extended consideration. There can be no question that if the contract was legal, and the lessee failed to pay the tax, which was a part of the rental of the premises, the lessor could pay the same, and recover it, the same as any other rent of the lessee. Tayl. Landl. & Ten. § 398; Wood, Landl. & Ten. (2d Ed.) p. 963; Lillie v. Case, 54 Iowa, 177, 6 N. W. 254; 25 Am. & Eng. Enc. Law, p. 280, and notes. See, also, Barthell v. Syverson, 54 Iowa, 160, 6 N. W. 178.

2. The real contention is that the contract upon which appellant's action is based is illegal and against public policy, and therefore not enforceable. To this contention appellant answers: First, that he is not in pari delicto with the party who sells the liquor; and, second, that the selling of liquor under the mulct law, and in accordance therewith, is not prohibited, not a crime, and is done with legislative assent. We shall consider these propositions together. In State v. Forkner (Iowa) 62 N. W. 778, this act of the Twenty-Fifth general assembly was held constitutional by a majority of the court. I dissented from that holding, and am still of the opinion that the act is void, being a delegation of the power of the legislature to enact laws to the people. Appellee bases his claim that this contract is invalid upon the provisions of section 16 of the act. It reads as follows: “Nothing in this act contained, shall be in any way construed to mean that the business of the sale of intoxicating liquors is in any way legalized, nor is the same to be construed in any manner or form as a license, nor shall the assessment or payment or any tax...