State ex rel. Crothers v. Barber

• Decision Date: 21 December 1904
• Citation: 101 N.W. 1078,19 S.D. 1
• Parties: STATE ex rel. CROTHERS et al. v. BARBER et al., Town of Hetland Trustees.
• Court: South Dakota Supreme Court

101 N.W. 1078

19 S.D. 1

STATE ex rel. CROTHERS et al. v. BARBER et al., Town of Hetland Trustees.

Supreme Court of South Dakota

December 21, 1904

Appeal from Kingsbury County Court.

Prohibition by the state, on the relation of P. R. Crothers and another against L. W. Barber and others, trustees of the town of Hetland, in Kingsbury county. From a judgment awarding the writ, defendants appeal. Affirmed.

Taubman & Williamson, for appellants. Warren & Warren (Aubrey Lawrence, of counsel), for respondents.

CORSON P. J.

This is an appeal from a judgment awarding a writ of prohibition against defendants, as trustees of the incorporated town of Hetland. The facts found by the court, upon which the writ of prohibition was based, are in substance as follows: That relators were residents, taxpayers, and legal voters of the town of Hetland, and that said town was duly incorporated that the defendants constituted the duly elected, qualified and acting board of trustees of said town; that applications were made by various persons, in due form of law, for permits to sell intoxicating liquors in said town during the year commencing July 1, 1904, and ending July 30, 1905, which applications were filed with the clerk, and the board of trustees set a day for hearing said applications, and directed notice thereof to be published, which was duly published; that the question of granting permits or of receiving license for the sale of intoxicating liquors was not submitted to the legal voters of said town at the annual municipal election held therein for the year 1904; that the question of sale of intoxicating liquors at retail in said town was submitted to the legal voters thereof at the annual municipal election held therein for the year 1903, and that a majority of the legal voters at said election voted in favor of the sale of intoxicating liquors at retail in said town, and that since said vote no other vote has been had on said subject in said town; that no application was ever made, and no petition ever filed, requesting that said question be submitted to a vote at the annual municipal election held therein for 1904; and that the board intended to issue permits to the applicants, should they on the said hearing deem them fit and proper persons.

It is urged by the respondents, in support of the judgment of the circuit court and the writ of prohibition issued by it, that inasmuch as the electors of the incorporated town of Hetland had not voted at the annual municipal election of 1904 to license the sale of intoxicating liquors, the board of trustees had no authority to grant permits to parties to sell during the ensuing year commencing July 1, 1904; that chapter 72, p. 203, Laws 1897, being sections 2834-2860 of the Revised Political Code, was in effect a prohibition act, and prohibited the sale of intoxicating liquors in all incorporated cities and towns unless the same was authorized by a vote of the electors of such town or city at each annual election, and that when such a vote was had, authorizing the sale of intoxicating liquors, power to grant permits authorizing the sale was limited to the one year succeeding the taking of such vote; that at the end of such year no further permits could be granted by the board of trustees unless the same was authorized by an affirmative vote at the preceding annual municipal election; and that, as no such vote was had at the municipal election for the town of Hetland for the year 1904, the board, in proceeding to grant such permits, was exceeding its authority, and the court was therefore right in issuing its writ of prohibition restraining the board from granting such permits.

It is contended, however, by the appellants, that the act in question constitutes a license law with local option provisions, and that the legal voters of the incorporated town of Hetland having voted, at its municipal election in 1903, in favor of the granting of permits for the sale of intoxicating liquors, the board was authorized, under such vote, to continue to grant permits until the electors of the town by an affirmative vote decided that no permits should be granted; in other words, that, when the board was authorized to grant permits, that authority continued until the electors by an affirmative vote withdrew that authority from the board.

The determination of this question involves the construction of section 23, c. 72, p. 214, Laws 1897, constituting section 2856 of the Revised Political Code as amended by chapter 166, p. 191, Laws 1903. The part of the section material to the question now before us reads as follows: "At the annual municipal election held in any township, town or city in this state for general municipal purposes, the question of granting permits to sell intoxicating liquors at retail within the corporate limits of such township, town or city shall be submitted to the legal voters thereof upon petition signed by (25) legal free-holder voters of such township, town or city, to be filed with the clerk or auditor of such township, town or city, thirty days before election, which petition shall state that a vote is desired upon such question *** and if a majority of the voters of such township, town or city shall vote in favor of such sale of intoxicating liquors at retail the corporate authorities thereof shall grant permits for such sale for the ensuing year in accordance with the provisions of this act, but if a majority of the voters shall vote against such sale, no such permits shall be granted."

In order to properly determine the intention of the Legislature in enacting this section, it may be proper to review the policy of the electors of this state and former territory upon the subject of the sale of intoxicating liquors, of which the court will take judicial notice. During its territorial days the state, then territory, adopted the license system, incorporating therein local option provisions which authorized the electors of any county to prohibit the sale of intoxicating liquors in such county by an affirmative vote. Sections 2227-2232, inclusive, Comp. Laws 1887. Subsequently, upon the admission of the state and the adoption of the Constitution, a provision was inserted in the Constitution prohibiting the manufacture and sale of intoxicating liquors. This constitutional provision remained in force until 1897, when the electors seem to have readopted the license system with the local option provision, in effect prohibiting the permits for the sale of intoxicating liquors in towns and cities wherein no affirmative vote of the electors of such town or city had been had authorizing such permits.

It will be noticed that the section we are considering provides that "if a majority of the voters of such township, town or city shall vote in favor of such sale of intoxicating liquors at retail...