156 Iowa 620 | Iowa | 1912
The insufficiency of the petition of consent was contested on several grounds, which, so far as they affect this appeal, may be stated as follows: (1) That no legal notice of the canvass of the petition was given by the board. (2) That some of the poll books or poll lists by which the petition must be tested were not properly certified or identified as required by law, nor had they been preserved or kept by the proper custodian. (3) That a large proportion of the signatures appearing upon the petition were never verified by the affidavits of reputable persons as required by law. (4) That a large number of the names subscribed to the petition are neither actually nor substantially identical with the alleged corresponding names upon the poll lists.
The petition of consent in this case was filed with the county auditor on August 10, 1910, and, as already stated, the hearing thereon before the board of supervisors was begun on September 15, 1910. Tip to that time the poll books of the Second precinct of the Third ward of the city of Waterloo had never been certified or returned by the election board as required by law, nor had either copy thereof ever been delivered or filed with the county auditor. During the hearing before the supervisors, said books were brought in and admitted subject to the objections of the contestants on the-grounds above indicated. One set of these books was then marked with the word “Auditor,” and left in the custody of that official, and the other was retained by the city clerk, but neither book bears any filing mark indicating that it was never filed in either office. As we understand the record, the board of supervisors regarded the objection to the poll books from said precinct as fatal, and rejected the names of the petitioners whose qualifications depended thereon. On the trial of the appeal in the district court the petitioners brought in as witnesses the persons who had acted as judges and clerks of election for said precinct at the election of March 28, 1910, who testified, in substance, that the books had been left uncertified and undelivered to the auditor through oversight; that upon present inspection they discovered no changes in said books since the record made by them on the day of said election;
The question raised by the appellant’s objection at this point is a serious one, and it is not fully met by any of the authorities to which we are cited by the appellees. The decision in Wilson v. Bohstedt, 135 Iowa, 453, which is relied upon by the appellees, does not seem to be controlling. The question we have here to consider was not in that case. The objection there passed upon did not deny that the poll books had been duly certified and returned to the proper officer, but was based upon the claims .that the said, lists had been taken temporarily from the .auditor’s office for examination by persons interested in supporting or opposing the petition, and that the competency and value of such records as evidence were thereby destroyed. The point so made was overruled. Here, however, it is to be remembered that at the time the petition of consent was signed four months after the. election, and at the time it
The objections based upon the foregoing conditions of fact require us first to consider and decide whether solicitors who have been convicted upon their own plea of guilty of violating the laws regulating the very business for which they seek the protection of a statutory consent are men who satisfy the requirement of the statute that verification of the petition shall be made by reputable persons. The question of the construction of this particular provision has not been considered by this court, except in the Oskaloosa case, 155 Iowa, 149, where it is briefly discussed with reference to facts differing in material respect from those which are here involved. In' the case In re Intoxicating Liquors, 120 Iowa, 680, the reference to this statute was controlled by a stipulation of the parties which rendered a construction unnecessary. In the case first cited, objection was raised to the verification because six years prior to the making of the affidavit had been convicted of
If the rule of these cases is correct, and we think it can not be doubted, it follows that when the contestants in this case took issue upon the jurisdictional facts, including both the sufficiency of the signatures to the petition and the character of the persons by whom it was verified, the burden rested upon the proponents to establish such facts by at least a prima facie showing. This, so far as the latter fact is concerned, they did not attempt to do. Still further bearing upon the question of character which the court may say conforms to the statutory standard, see Whissen v. Furth, 73 Ark. 366 (84 S. W. 500, 68 L. R. A. 161); Bachman v. Town, 68 N. J. Law, 552 (53 Atl. 620). In the Whissen case, where the statute required the holder of a license to be of good moral character, the court was considering an application for license by a man who had been conducting a gambling house with the consent of the city authorities upon paying a monthly fine or license fee for the privilege. He had quit the business, and proposed thereafter to observe the law. Upon the question whether this history disqualified him under the law the court says:
In business affairs the evidence shows him to be upright and honorable, and socially he appears to be popular and highly esteemed, and there is nothing shown against his private character.- The evidence shows him to have been a continuous violator of the criminal laws for many years. That the officers condoned these violations only renders them violators of the law also, and did not change the criminality of his acts before the law, however much or little it may have changed it in public opinion. If such a person is entitled to a license under the section*636 quoted, then the purpose of this legislation is defeated. . . . But counsel urge that the same degree of moral character is not required of a person to conduct a saloon that is required of a superintendent of a Sunday school or a minister of the gospel, and insist that- the requirement is fulfilled if the applicant has as good moral character as the other applicants. . . . This argument will not prevail. The law may not expect the same degree of morality for a saloon keeper as a minister, but it does require of each equal obedience, to the law. It is thoroughly settled by authority that an habitual violator of the laws, even violations which are only malum prohibilum1 instead of malum in se, is not within -the meaning of the statute requiring the applicant to be of good moral character. . . . The more fact that in the past a person has offended the laws habitually will not prevent him having a character within the statute if the evidence shows a real reformation. This fact, like all other showing of good character, must be established by the applicant.
With reference to the requirement that an applicant for a license must be a person of good moral character, the Indiana court has said that “to be guilty of a public offense is an immorality within the meaning of that word as used in law regulating and licensing the sale of intoxicating liquors.” Groscop v. Rainier, 111 Ind. 361, (12 N. E. 694). We do not overlook the fact that the last cited case and some others deal with statutes prescribing the qualifications of a dealer to receive a license, while in the case at bar we have to deal with the qualification of the maker of an affidavit which is an essential to the granting of a. consent under the protection of which dealers shall have, if not license, at least the right to engage in the traffic without incurring a penalty. But the difference in fact involves no difference in principle. In each case the statute makes it an indispensable requisite to the granting of the license or consent that a designated person connected with the proceedings therefor shall bear a good character and the necessity of complying therewith can not