State v. Ashert
| Decision Date | 31 May 1895 |
| Citation | 95 Iowa 210,63 N.W. 557 |
| Parties | STATE v. ASHERT ET AL. STATE v. SAVERY HOUSE HOTEL CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Polk county; W. A. Spurrier, Judge.
Actions to enjoin the maintenance of nuisance in the keeping and selling of intoxicating liquor. The petitions are in the usual form, showing that the defendants are engaged in selling, and keeping with intent to sell, intoxicating liquors, in violation of law, on certain lots in the city of Des Moines, with a prayer that injunctions issue to restrain their continuance. The answer, in each case, is in two divisions, in the first of which there are admissions that the defendants are keeping and selling, on the premises described in the petitions, intoxicating liquors, but with denials that such acts are in violation of law. In the second division of the answers, it is shown that written statements of consent, purporting to have been signed by a majority of the voters residing in said city, who voted at the last preceding general election, as provided in section 20, c. 62, Acts 25th Gen. Assem., were filed with the auditor of Polk county, Iowa. The said divisions of the answers contain a further showing that a resolution of consent, for each of the said defendants, for such sales, was regularly adopted by the city council of the city of Des Moines, subsequently to the filing of said petition of consent, and the same was filed with the auditor of said county, and also that each of said defendants had filed with the county auditor a statement of consent, signed by all the resident freeholders owning property within 50 feet of the room or place where the sales were to be made, and also that a bond had been filed with said auditor as provided by such act. It further appears that the defendants have paid the tax provided for by the act. To the second division of the answer there was a demurrer, which the court sustained, and from the rulings the defendants appealed.Cummins & Wright, Ed. T. Morris, and Gatch, Conner & Weaver, for appellants.
J. J. Davis and W. G. Harvison, for the State.
By a stipulation, the same order is to be made in the two cases, and in our considerations we will speak alone with reference to the first-entitled case.
The question in this case is of general importance, and the appeal involves a construction of the laws passed by the last general assembly, somewhat changing the law for the suppression of intemperance. The demurrer is general, and hence it does not designate the particular as to which the answer is thought to be defective. The facts pleaded as to the filing of the statement of consent, the resolution of consent, the consent of freeholders, and the filing of the bond, are to comply with the provisions of chapter 62, Acts 25th Gen. Assem. Before that act the law of the state was actually prohibitive of the sale of intoxicating liquors, except for specified purposes, and then by registered pharmacists only. The law, prior to the act in question, authorized both criminal and civil proceedings for its enforcement; the latter method being by injunction, in an equitable proceeding, and the imposition of severe penalties for disobedience. The penalties referred to are only imposed as a result of judicial inquiry and judgment. The act in question attempts to impose an assessment upon every person engaged in the selling, or keeping with intent to sell, intoxicating liquor, except pharmacists, and the following are the first two sections of the act:
“Section 1. There shall be assessed against every person, partnership, or corporation, other than registered pharmacists holding permits, engaged in selling or keeping with intent to sell, any intoxicating liquors, and upon any real property and the owner thereof, within or whereon intoxicating liquors are sold, or kept with intent to sell in this state, a tax of six hundred dollars per annum. All such taxes shall be a perpetual lien on all property both personal and real, used in or connected with the business.
Sec. 2. It shall be the duty of the assessor of each township, incorporated town or city, in the months of December, March, June and September of each year, to return to the auditor of each county a list of places with name or occupant or tenant, and owner or agent, where intoxicating liquors are sold, or kept for sale as herein contemplated, with a description of the real property wherein or whereon such traffic is conducted.”
The sections following, to and including section 15, provide only for the levy and collection of the tax imposed by the sections quoted, and to what funds the tax shall be applied when collected. The following is section 16 of the act: “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 of any tax for the sale of liquors as aforesaid, protect the wrongdoer from any penalty now provided by law, except that on conditions hereinafter provided certain penalties may be suspended.” If there be no other provisions of the act, its effect would be, clearly, to impose on the illegal traffic the burden of the tax thus imposed, without any relief whatever from the provisions of the prior law, as to penalties for its violation. The city of Des Moines is one of more than 5,000 inhabitants, and the act has provisions alone applicable to such cities. The following is a part of section 17: ...
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