Darling v. Boesch

Dec 15, 1885
Reporters:
,
Before:
Reed

Lead Opinion

Reed, J.

*704xng liquors: granting per-visorsy-Sre-er” eeedingsSy certiorari. *703I. One of the grounds of demurrer is that “plaintiff has no right or interest that entitles him to call *704for the writ. He has no property interest or office that is affected.” The general rule nn- ° doubtedly is that an action of certiorari or mandonms cannot be maintained for the correction 0f irregularities or errors in the proceedings of the board of supervisors .by one having no pecuniary interest in the proceedings. This has been repeatedly held by this court. See Welch v. Board of Supervisors, 23 Iowa, 199; Smith v. Yoram, 37 Id., 89; Iowa News Co. v. Harris, 62 Id., 501. But, in our opinion, the present case is not governed by that rule. Section 1530 of the Code is as follows: “At such final hearing, any resident of the county may appear and show cause why such permit should not be granted, and the same shall be refused, unless the board ‍​​​​‌​​‌‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌‌​​​‌​‌‌​‌​‌‌‌‌‌​‌‌​​‌​​​‌‌‌​‌‌​​​​‌​​​​‌‌‌​​​​‌​​​​​​​​‌​‌‌‌​​​​​‌​‌‍shall be fully satisfied that the requirements of the law have, in all respects, been complied with; that the applicant is a person of good moral character; and that, taking into consideration the wants of the locality and the number of permits already granted, such permit would be necessary and proper for the accommodation of the neighborhood.” Under this provision, the board is required at the final hearing of the application to determine these questions: (1) Whether the requirements of the law have been complied with; (2) whether the applicant is a person of good moral character; and (3) whether the permit is necessary for the proper accommodation of the neighborhood. In- determining these questions the board exercises judicial functions.

The section also permits any citizen of the county to appear at the hearing, and show cause why the permit should not be granted. In resisting the granting of the permit, he may make a showing with reference to either of the questions which the board is required to determine. He may introduce evidence to negative either of the facts which the statute provides must be proven before the permit shall be granted. He, in effect, becomes a party to the proceeding. He has the right to call and examine witnesses, and to intro*705duce documentary evidence on the hearing. He is allowed to do this, not because he has any pecuniary interest in the proceeding, but because, as a resident of the county, he is interested in the faithful execution of the laws within the county. As a citizen of the county he has the right to demand that permits to sell intoxicating liquors shall be granted only to persons of good moral character who have fully complied with the requirements of the law, and when they are necessary for the ‍​​​​‌​​‌‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌‌​​​‌​‌‌​‌​‌‌‌‌‌​‌‌​​‌​​​‌‌‌​‌‌​​​​‌​​​​‌‌‌​​​​‌​​​​​​​​‌​‌‌‌​​​​​‌​‌‍proper accommodation of the the neighborhood; and’the statute, recognizing his right in this respect, permits him to become a party to any proceeding for the granting of a permit, and to resist the application. As the law permits him to “become a party to the proceeding, and recognizes in him such interest and right as entitles him to become a party, it follows necessarily, we think, that he is entitled to have the proceeding reviewed, and the errors and irregularities therein corrected, by the mode prescribed by law for the correction of errors and irregularities in such proceedings. His right to maintain the actions, then, does not depend upon whether any property interest of his is affected by the proceeding, but upon the fact that he was allowed to become a party to it.

qüéstíonsiat considered. II. Another ground of the demurrer is that “ the application is too general, and would require the court to try the instead of the lawfulness or regularity of ^ie aeti°n of tho board.” The decision of the board on the questions of fact involved in the proceeding cannot be reviewed on certiorari. Tiedt v. Garstensen, 61 Iowa, 334. Under this rule the court could not review the finding of the board on the question of the good moral character of the applicant, or as to whether the granting of the permit was necessary for the accommodation of tine neighborhood. The writ of certiorari is granted when the inferior tribunal, board- or officer is alleged to have exceeded his proper jurisdiction, or is otherwise acting illegally; (Code, § 3216;) and it cannot be said that the board *706Las acted unlawfully because it erred in the determination of a question which it was required to determine in the proceeding. In the present case the complaint is, not that the board wrongly determined that a ‍​​​​‌​​‌‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌‌​​​‌​‌‌​‌​‌‌‌‌‌​‌‌​​‌​​​‌‌‌​‌‌​​​​‌​​​​‌‌‌​​​​‌​​​​​​​​‌​‌‌‌​​​​​‌​‌‍sufficient number of electors had signed the certificate, but that it granted the permit without any certificate having been presented to the county auditor. Appellees contend that there is now no statute in force requiring the applicant for a permit to sell intoxicating liquors to present such certificate to the auditor.

3. legislapío vaal oPgovNecaessary11311 ■CodetVis27. In 1882 a bill was passed by the two houses of the general assembly which contained a provision repealing section 1S2T of the Code. This bill was presented to the governor for 1ns approval during the last three days of the session of the general assembly, but he did not sign it. Within thirty days after the adjournment, however, lie deposited it in the office of the secretary of state, but filed no objection to it. Counsel for appellees contend that this bill became a law. Their argument is that the only powers with reference to legislation with which the governor is vested is the negative power of veto; and that, while he may by the exercise of that power prevent a bill which has been passed by the general assembly from becoming a law, his assent or approval is not required before it can become a law. The provisions of the constitution with reference to this subject are found in section 16 of article 3 of that instrument. It is there provided that every bill which shall have passed the general assembly shall, before it becomes a law, be presented to the governor; and that if he approves it he shall sign it, but that if he does not approve it he shall return it with his objections to the house in which it originated, and that it shall then be reconsidered by the general assembly, and that, if it shall again pass both houses by ‍​​​​‌​​‌‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌‌​​​‌​‌‌​‌​‌‌‌‌‌​‌‌​​‌​​​‌‌‌​‌‌​​​​‌​​​​‌‌‌​​​​‌​​​​​​​​‌​‌‌‌​​​​​‌​‌‍a majority of two-thirds of the members of each house, it shall become a law notwithstanding the governor’s objection. The section also contains the following provision: “ If any bill shall not be returned within three *707days after it shall have been presented to him, (Sunday excepted,) the same shall be law in like manner as if he had signed it, unless the general assembly, by adjournment, prevent such return. Any bill submitted to the governor for his approval during the last three days of a session of the. general assembly shall be deposited by him in the office of the secretary of state within thirty days after the adjournment, with his approval, if approved by him, and with his objections, if he disapprove thei’eof.” There can be no doubt, we think, as to the effect of these provisions. Under them the governor has three days after the bill is presented to him. within which to approve it or return it with his objections. If he approves it within that time, it becomes a law; if he neither signs it nor returns it with his objections within that time, it becomes a law in like manner as if he had signed it, “ unless the general assembly by adjournment prevent such return.” This latter pi‘ovision is clearly a negative provision. It creates an exception to the rule established by the preceding provision. It provides, in effect, that bills which have been presented to the governor within the last three days of a session of the general assembly, and which he neither signs nor returns with objections before the adjourn ment, become laws only in ease he subsequently approves them. This, we think, is the necessary effect of the language of the provisions. It follows, therefore, that section 1527 has not been ‍​​​​‌​​‌‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌‌​​​‌​‌‌​‌​‌‌‌‌‌​‌‌​​‌​​​‌‌‌​‌‌​​​​‌​​​​‌‌‌​​​​‌​​​​​​​​‌​‌‌‌​​​​​‌​‌‍repealed; and the board of supervisors acted illegally in granting the permits without the certificates required by it having been presented to the auditor. The judgment of the circuit court will be reversed, and the cause remanded for further proceedings in that court.

Reversed.





Dissenting Opinion

Rothrock, J.,

dissenting. — Í cannot assent to the first point in the foregoing opinion. The statute authorizes any resident of the county to appear and show cause why a permit should not be granted, but it does not authorize him to *708institute an original action to,amend tbe acts of tbe board of supervisors. I think that when be lias bad an opportunity to be beard before tbe board bis right to make further contest -is at an end. Without authority conferred by statute, be can have no standing in any court, because he has no such interest in the matter as confers upon him any right to institute an action.