State v. Ashert

• Decision Date: 31 May 1895
• Citation: 63 N.W. 557,95 Iowa 210
• Parties: STATE OF IOWA v. WILLIAM ASHERT, et al., Appellants. STATE OF IOWA v. THE SAVERY HOUSE HOTEL COMPANY, Appellant
• Court: Iowa Supreme Court

63 N.W. 557

95 Iowa 210

STATE OF IOWA v. WILLIAM ASHERT, et al., Appellants.

STATE OF IOWA v. THE SAVERY HOUSE HOTEL COMPANY, Appellant

Supreme Court of Iowa, Des Moines

May 31, 1895

Appeal from Polk District Court.--HON. W. A. SPURRIER, JUDGE.

Action to enjoin the maintenance of a 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 chapter 62, Acts Twenty-fifth General Assembly, 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 fifty 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.

Affirmed.

Cummins & Wright, Ed. T. Morris, and Gatch, Conner & Weaver for appellants.

J. J Davis and W. G. Harvison for the state.

Granger J. Kinne, J., concurring.

OPINION

Granger, J.

By a stipulation the same order is to be made in the two cases, and in our consideration 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 Twenty-fifth General Assembly. Before that act the law of the state was 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 five thousand inhabitants, and the act has provisions alone applicable to such cities. The following is a part of section 17: "In any city of five thousand or more inhabitants, the tax hereinbefore specified may be paid quarterly in advance on the first days of January, April, July, and October of each year, and after a written statement of consent signed by a majority of the voters residing in said city who voted at the last general election, shall have been filed with the county auditor, such payment shall upon the following conditions, be a bar to proceedings, under the statute prohibiting such business. First. 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, and a written statement of consent from all the resident freeholders owning property within fifty feet of the premises where said business is carried on. But in no case shall said business be conducted within three hundred feet of any church or school house. Second. He shall file with the county auditor to be approved by the clerk of the district court, a bond in the sum of three thousand dollars conditioned upon the faithful observation of all provisions of this act, and for the payment of any and all damages that may result from the sale of intoxicating liquors upon the premises occupied by the obligator. Said bond shall be signed by himself as principal and by two sureties who shall qualify each in double the amount of bond, and neither of whom shall be surety on any other like bond." The other subdivisions of the section are as to the manner of selling, and to whom sales may be made. The answer assailed by the demurrer is an attempt to plead the conditions of section 17 so as to be "a bar to proceedings under the statute prohibiting such business." The contention arises as to the duty of the auditor in receiving and filing the statement of consent. It will be seen that the answer does...