State ex rel. Seim v. Cronin

137 N.W. 593 | S.D. | 1912

CORSON, J.

This -is an appeal by the plaintiff, C. F. Seim, from a judgment entered in favo-r of the defendants. The- proceeding is in the nature of a writ of prohibition to restrain and prohibit -the defendants from submitting to a vote the question, “Shall intoxicating liquors- be sold at retail in the town of Albee?” upon the ground that the petition' filed- with the clerk of the town of Albee did not -contain the signatures of 25 legal freeholder voters of 'said to-wn. I-t ,is alleged in the complaint -of the appellant, in sub-stance, that s'aJd petition did not contain the names of more than 16 legal freeholder voters, although it purported to h-ave 27 legal signers thereto; that the 10 persons named in the complaint were not qualified to sign- a liquor petition -asking f-or a vote on that question; that the records failed to disclose that they had title to real property, -although -some of them had contracts for the purchase of small tracts of land within the limits of the ’-town of Albee; that these titles' c-ame from ene C. F. Schultz, a saloon keeper at th'at pla'ce; that whatever title they had to- real estate in the town -of Albee was -conveyed to them by said Schultz, and-was only held for thé purpose 'of qualifying them to sign- liquor petitions, and- they 'had no real interest or title in any real estate; that the petition in question' was signed-in the months of January and February, 1911; and filed'with the town clerk on the 2nd day of February, 1911, and that upon this .petition'the town trustees, defendant's herein, were about to submit the question to the voters of said town. '

The answer admitted the filing óf the petition; that the defendants were about to submit the question to> the voters of the town, but denied that the petition was not signed by 25 legal freeholders, but, on the contrary, alleged that the petition was signed by 27 legal freeholders of said town, each and every one of whom was qualified ¡to sign said petition, and denied the other allegations of the complaint.

On the trial the court, inter alia, found “that said petition so filed on the 2d day of February, 1911, was signed by 27 legal freeholder voters of said town of Albee, each and every one of whom was qualified to sign said petition;” that the persons named in the petition, alleged not to be qualified to sign the same, were, and each of them, at the time they signed said petition, legal freeholder voters of said town, and legally qualified and entitled to sign said petition under the laws of this state, and each of the said persons were residents, electors, and owners in fee of lands ■in said town of Albee. The court concluded from its findings that the defendants were entitled to judgment denying a premptory writ of prohibition, and judgment was accordingly entered in favor of the defendants. Motion for new trial was made and denied.

This court recently decided, in the case of State ex rel. Dilman v. Weide et al., 135 N. W. 696, that persons holding contracts for the purchase of real estate are freeholders, within the meaning of the 'statute requiring the petition upon the question as to whether or not intoxicating lquors shall bé sold at retail shall be signed by 25 legal freeholders.

[1] The only question to be considered, therefore, on this appeal, is as to whether or not such purported freeholders obtained ¡their title fraudulently, for the purpose of qualifying them to sign the 'petition. This question is one necessarily of fact; and the coiirt in effect found' that, the title acquired by these persons was not fraudulent acquired, ’ for the purpose. of ' qualifying them to sign saici petition. The ’findings of the court are presumptively right; and, unless the evidence clearly preponderates" against such finding,’the judgment of the court below must be affirmed The evidence in the case is voluminous, and no useful purpose would be served by setting' it out in lull in this opinion, and a,brief .summary must suffice. . - ;

[2] It is disclosed by the evidence that in the fall of 1908 Schultz, from whom the persons who signed the petition claimed titles, which are alleged to be fraudulent, purchased an acre of land within the limits of the town, of Albee oar the south side of ■the railroad, and about 400 feet from.the railroad.right of,way; that there are no. buildings or improvements in that vicinity, and that the one acre purchased by Schultz was divided up into 9 lots, and contracts given to the various parties', respectively, for the sale of s-aid lot-s; that the parties so contracting to- purchase said lots, and who subsequently received quitclaim deeds for the same, have made no improvements thereon. But all, or nearly all, of these persons were called as witnesses1 on the part of the defendants, and testified that their respective purchases were made in good faith, and not with any fraudulent intent: While there were some circumstances proven that might create a suspicion that the transactions between Schultz and the respective parties were made with a view of enabling them to sign, the petition, their denial of any fraudulent intent on their part, and their assertion that they entered into the contracts or received the deeds in good faith, and without any fraudulent intent, clearly authorized the findings of the court in favor of the defendants. There was therefore no preponderance of evidence against the findings of the court; but, in view of the evidence as to the good- faith of the respective parties in making the contracts and receiving the deeds, the court could not have consistently found otherwise than in- favor of the defendants. •

The judgment and order denying a new trial are affirmed.