State v. Greenway

• Decision Date: 12 December 1894
• Citation: 61 N.W. 239,92 Iowa 472
• Parties: STATE OF IOWA v. HARRIET GREENWAY et al., Appellants
• Court: Iowa Supreme Court

61 N.W. 239

92 Iowa 472

STATE OF IOWA v. HARRIET GREENWAY et al., Appellants

Supreme Court of Iowa, Des Moines

December 12, 1894

Appeal from Mahaska District Court.--HON D. RYAN, Judge.

THIS is an action in equity for an injunction to restrain the defendants from keeping and maintaining a saloon in the city of Oskaloosa. The cause was submitted in the district court on an agreed statement of facts. A temporary injunction was allowed by the court, and defendants appeal.--Affirmed.

Decree AFFIRMED.

Bolton & McCoy and Seevers & Seevers for appellants.

Byron W. Preston for the state.

OPINION

ROTHROCK, J.

It is not necessary to set out the agreed statement of facts in full. The defendants claim they have the right to keep and maintain the saloon by virtue of chapter 62 of the Acts of the Twenty-fifth General Assembly, entitled, "An act to tax the traffic in intoxicating liquors, and to regulate and control the same." No question is made that the voters and city council of the city of Oskaloosa took such action as authorized the sale of intoxicating liquors under the provision of said law.

I. It is claimed in behalf of the state that the defendants have no right to maintain their saloon because they have at no time obtained consent to establish the saloon from "all the resident freeholders owning property within fifty feet of the premises where said business is carried on," as required by section 17 of said act. It appears that there are two buildings on lots within fifty feet, the consent of the owners of which has not been obtained. All of the owners of said property are nonresidents of the city of Oskaloosa. The owner of one of the lots is a resident of Jefferson county in this state. The other building is owned in common by two persons, one of whom is a nonresident of the state, and the other resides in Mahaska county, but outside the corporate limits of the city of Oskaloosa. It is contended that the term "resident freeholder" should be construed to mean all residents of this state. We think this question depends altogether upon the connection in which it is used in the act. The purpose of the act is to permit the sale of intoxicating liquors within such cities as, by the petition of the voters and the action of the city council, take proper steps to authorize the permit. In cities of the population of Oskaloosa the residents of the county or state have no right to make objection to the granting of such permits. It is provided in section 17 of the act 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 and a written statement of consent from all the resident freeholders owning property within fifty feet of the premises where the said business is carried on." It is also required in said section that there shall be "a written statement of consent signed by a majority of the voters residing in said city who voted at the last general election." We think, when these and other parts of the law are considered, there is no question that "resident freeholders" should be held to mean residents within the corporate limits of the city, and that it is not necessary to have the consent of any non-residents of the city.

II. The act further provides that "in no case shall said business be conducted within three hundred feet of any church or school building." The fact is that the congregational church in the city is within three hundred feet of the saloon, in a direct line, but that it is more than that distance by the traveled way. As bearing upon the...