146 Iowa 215 | Iowa | 1910
Lead Opinion
The defendant in the first two actions, Hallgren, and Shuckrow, the defendant in the third, were engaged in selling and keeping for sale intoxicating liquors in their respective places of business in the city of Ottumwa. A written statement of consent in pursuance of section 2448 of the Code had been filed with the county auditor of Wapello County in February, 1900, found sufficient by the board of supervisors, and its finding en
In any city, including cities acting under special charters, of five thousand- or more inhabitants, no proceedings shall be maintained against any person who has paid the last preceding quarterly assessment of mulct tax, nor against any premises as a nuisance on account of the selling or keeping for sale therein or thereon, by such person, of such liquors, provided the following conditions are complied with; and in any city of over twenty-five hundred and less than five thousand inhabitants, when a written statement of consent that intoxicating liquors may be sold in such city, signed by eighty percent of the voters residing in such city, voting therein at the last preceding election, as shown by the poll list of said election, shall have been filed with the county auditor, and shall Toy the board of supervisors at a regular meeting, or at a special meeting called for that purpose, have been held sufficient, and its findings entered of record, which statement, when thus found sufficient, shall be effectual for the purpose herein contemplated until revoked, said city shall come within the provisions of this section:
1. . . . A written statement of general consent that intoxicating liquors may be sold in such city, signed by a majority of the voters residing in such city, voting therein at the last preceding election, as shown by the poll list of said election, shall have been filed with the county auditor and shall, by the board of supervisors, at a regular
Then follow eleven other subdivisions, not pertinent to the present inquiry. Section 2449 has reference to the bar in cities under five thousand inhabitants, and towns. Section 2450 provides for the canvassing of the statements of consent and the entry of record of its findings, and provides for appeal therefrom. Section 2451, Code Supp. 1907:
Whenever any of the conditions of the third preceding section shall be violated, or whenever the council' of the city’ or town or city acting under special charter shall by a majority vote direct it, or whenever there shall be filed with the county auditor a verified petition, signed by a majority of the voters of said city, town or city acting under special charter, or county as the case may be, as shown by the last general election, requesting it, then the bar to proceedings as provided in the second and third preceding sections shall cease to operate and the persons engaged in the sale of intoxicating liquors shall be liable to all the penalties provided in this chapter.
The petition of December 22, 1908, was filed in pursuance of section last quoted, and, according to the findings of the district court, two thousand eight hundred and ninety-nine names appeared thereon. Ten of these appear not to have been genuine, nineteen were twice signed, and nine differed so materially from names on the poll lists that they were held not to have been sufficiently identified. There were one hundred and twenty-nine names of persons not shown to have been qualified voters. It is conceded that all of these, one hundred and sixty-seven in all, should be eliminated from the petition, leaving two thousand seven hundred and thirty-two names thereon. Of these one hundred and ten were names of qualified
In Sanford v. Prentice, 28 Wis. 362, the court said that: “There is a difference between an elector or person [legally qualified to vote and a voter. In common parlance they may be used indiscriminately, but strictly speaking they are not the same. The voter is the elector who votes; the elector in the exercise of his franchise or privilege of voting, and not he who does not vote.” Accordingly, it was held that a statute declaring that a “majority of legal voters” of a school district may determine the amount of money to be levied and collected at a special or annual election of said voters meant a majority of those actually present and actually voting and not of the qualified electors residing in the district. In County of Cass v. Johnston, 95 U. S. 360 (24 L. Ed. 416), the Supreme' Court of the United States, in construing a provision of the Constitution of Missouri prohibiting subscriptions by a township to the capital stock of a railroad company “unless two-thirds of the qualified voters ... of the town at a regular or special election to be held therein shall assent thereto,” held that this exacted the assent of two-thirds of the qualified electors actually voting. The decision was followed in Carroll County v. Smith, 111 U. S. 556 (4 Sup. Ct. 539, 28 L. Ed. 517), considering an act of the Legislature of Mississippi authorizing the issue as to whether subscriptions to the capital stock of a corporation should be made be submitted “to the decision of the qualified voters of said county, city or town . . .
The meaning of the word’ “voters” depends on the connection in which used, and is not always equivalent to “elector,” as seems to be assumed in the arguments of appellant. Recurring to- the language of the statute, we inquire: Why is the last election to be referred to? Manifestly to‘ascertain the majority of voters. It so .reads.
Dissenting Opinion
(Dissenting). The statute providing for the adoption of the mulct law by a city of more than five thousand inhabitants requires that the written statement of consent be signed by a “majority of the voters residing in the city, voting therein at the last preceding election as shown by the poll list of said election” (Code, section 2448) ; while the petition which shall operate to revoke such adoption is required to be signed by a “majority of the voters of said city ... as shown by the last gen
The voters shown by such election may or may .not be equal to the number of names on the poll list.. If asked to determine the number of votes cast at any given election, we do not look to the poll list, but to the officially canvassed result. If, for instance, a statute be enacted authorizing the imposition of a tax in aid of the construction of a railroad upon vote of a majority of the voters of a city as shown by the last general election, it would hardly be contended that such provision meant a majority of the particular individuals voting at such election, yet that is precisely what we would be required to hold to be con
I think the judgment below should be reversed.