22 S.D. 111 | S.D. | 1908
To prevent the granting of any license for the sale of intoxicating liquors at retail in the city of Webster for the ensuing year commencing July I, 1907, appellant made application in due form to the circuit court for a writ of prohibition directed to the mayor and city council, and this appeal is from an order sustaining respondent’s demurrer on the ground of the insufficiency of the alleged facts to constitute a cause of action or justify the issuance of the writ.
It affirmatively appears from the affidavits made the basis of the proceeding, and to which the demurrer was directed, that 30 days before the annual election held in Webster for general municipal purposes a petition containing all that the statute requires was duly filed, and that pursuant thereto the prerequisite question was submitted to the voters and carried by a large majority by the use of the following separate ballot:
City Election 'Held in the City of Webster, Day County, South Dakota, Tuesday, April 16, 1907.
To vote in favor of the foilwing propsition make a cross (X) on the word “Yes.” To vote against the proposition make a cross (X) on the word “No.”
Yes. Shall intoxicating liquors be sold at re-
No. tail in the city of Webster, Day County, South Dakota ?
' As the words “Yes” and “No” were thus printed on this ballot without being preceded by a square in which the vote of the elector might be indicated by a cross, it is contended by .counsel for appellant- that the election is a nullity, -and the corporate authority without jurisdiction to issue a license for the sale of intoxicat-’ 'ing liquors at retail.
No claim is made that the advisory direction on the ballot does not comply with the statutory command that all voters in favor of the sale shall mark the word “Yes” with a cross and those opposed thereto shall mark the word “No” with a cross; but a reversal is urged on account of. the ’ failure to submit the question according to the terms of section 1911, which relates to proposed constitutional amendments, arid expressly requires the words “Yes’” and “No” to, be “preceded by a square in which the elector can place a cross to indicate his vote.” Manifestly the statute under
As the exact question was submitted on such a ballot as the framers of the statute contemplated, the demurrer was properly sustained, and the order appealed from is affirmed.