160 N.W. 808 | S.D. | 1916
Lead Opinion
This action was brought for the- purpose of having a certain election, held' in the township of Orient on the 7th clay of March, 1916, declared void.
The tow-ns'hip of Orient is a civil township in Faulk county,, and has a regularly elected board icf -township supervisors, a clerk and a treasurer. Within the limits o-f said township is the platted town, or village, of Orient, having.a population -of about 220 inhabitants. On or about the 5th day of February, 1916, 4here was filed in the -office -of the clerk of said t-ownshipi a petition, reques-tiong the board of -supervisors of said- township -to submit to the legal voters of -said township, at an election to ■be held on the 7th day of March, 1916, the question, “Shall intoxicating liquors- 'be sold- at retail within, the corporate limits
No- contest of this election was instituted within the 20 days allowed by law for that purpose, or at all; but after the expiration of more than 20 days after said election this action was commenced. Upon the trial a decree was entered, adjudging the permit issue by the board of supervisors of said township to be wholly void and of no effect whatever. It. also enjoined the defendant Gardner, as treasurer of said1 township, from1 receiving, any license money from the defendants Kelly and Bigler and from issuing to- either of them a receipt therefbr.
“This article shall not he -construed -to- affect any of the remedies or rights of action or -proceedings provided for in the Code of Civil Procedure.”
"The undersigned further certify, each for himself, that ha owns the legal title to an undivided share or interest in at least one entire lot or parcel of ground 'within said Orient township', which, lot or parcel of ground is of the size -commonly recognized as a full lot in said Orient township as shown by the official plat of said Orient township, together with the improvements thereon; that his said interest in such lot or parcel of ground is of the assessed valuation of at least $25, as shown bjr the returns of the last assessment previous to the signing- of this petition; that he has been such freeholder for at least one year and a qualified voter of said Orient township- for at least one year prior to the yth day of March, 1916.”
From this it does not appear that any of the petitioners were qualified to sign said petition. In fact it appears, by inference at least, that none of said1 petitioners owned land equal to an acre in extent. The petition is therefore insufficient upon its face to- authorize the holding of said' election, and all parties' concerned were notified thereby -that there was no- authority for holding the said election.
The township' -officials being-; without jurisdiction to call or ho-ld the said election, the legal situation is the same as if no
If it were a case' where the regularity of the election were questioned, such as the qualification of voters or the correctness of the count, then there would -be much force in appellants’ contention, -but in- this state there is no law authorizing the officials of a city, town, or township- to -submit the question of granting liquor licenses to the voters, as was done in this case, until a petition is filed1 signed by a specified- number of signers, each-of whom is possessed of the qualifications- specified by statute. Without this petition the officials of a municipal corporation have-no more authority to submit the question -o-f granting liquor licenses to the voters at the time of the regular municipal election -than they would have to call an election- and submit such-question to- the voters at any -other -time -in the year; and a vote on said question -at the regular municipal election, but without the -sai-d -petition having been filed, -would- -confer no more author t ity upon such official's' to- grant liquor licenses than an- unauthorized v-o-te upon -sai-d' question taken on- any other day -in the year. The election having been- held without any authority -or jurisdiction on the part -of' the defendants, -the plaintiff had a right to treat such election as an absolute nullity, and the trial court was warranted in granting equitable- -relief b-as-ed! upon the fact that the election was invalid.-
The judgment appealed from is affirmed.
Concurrence Opinion
(concurring specially). Without -disagreeing with the determination that the election was; wholly void-, I, believe the- question as- -to- whether injunction was a proper remedy should he solved o-n other grounds. I -think it unnecessary to make the distinction sought to be made between a petition for an election -that is void o-n its face and one that is vo-i-d for some latent -defect. By the provisions -of sections 2858 and 2854, Pol. Code, as -amended-, it is- clearly unlawful for a person having a -county license to- sell intoxicating liquor unless a license
The plaintiff delayed the bringing of this action until after the township had' ‘granted the permit, 'but he began it before the applicants had paid the license fee to the township, treasurer, and be obtained a judgment, restraining the township, -treasurer from receiving the township license fee from the applicants. In Weatherer v. Herron, 25 S. D. 208, 126 N. W. 244, this court said:
“We are of the opinion that for the same reason any taxpayer or elector might, in a proper case, maintain an injunction proceeding restraining* a public officer from the performance of an illegal act.”
I think this is one of the proper cases implied in the foregoing quotation. The matter of the sale of intoxicating liquors is- a public matter. This plaintiff would not have as speedy a remedy in -the ordinary course of law as he would- by injunction. 22 Cyc. 769-771. The receiving of the money by the township treasurer .would' be clearly illegal and the issuance of a receipt therefor would be clearly illegal.
I, therefore, think that the judgment should be affirmed in so far as it enjoins the township1 treasurer from, receiving' the license money and frota issuing a receipt therefor. Inasmuch as the applicants may not engage in the business without paying' the license fee, it follows that the portion of the judgment which cancels- the license or permit issued by the township -board', and which- enjoins the applicants' from- doing- business, cannot -be prejudicial to- any rights of appellants.