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Dec., 1904]

Opinion of the Court-CORSON, P. J.

municipal election held therein for the year 1903, and that a majority of the legal voters at said election voted in favor of the sale of intoxicating liquors at retail in said town, and that since said vote no other vote has been had on said subject in said town; that no application was ever made, and no petition ever filed, requesting that said question be submitted to a vote at the annual municipal election held therein for 1904; and that the board intended to issue permits to the applicants, should they on the said hearing deem them fit and proper persons.

It is urged by the respondents, in support of the judgment of the circuit court and the writ of prohibition issued by it, that inasmuch as the electors of the incorporated town of Hetland had not voted at the annual municipal election of 1904 to license the sale of intoxicating liquors, the board of trustees had no authority to grant permits to parties to sell during the ensuing year commencing July 1, 1904; that chapter 72, p. 203, Laws 1897, being sections 2834-2860 of the Revised Political Code, was in effect a prohibition act, and prohibited the sale of intoxicating liquors in all incorporated cities and towns unless the same was authorized by a vote of the electors of such town or city at each annual election, and that when such a vote was had, authorizing the sale of intoxicating liquors, power to grant permits authorizing the sale was limited to the one year succeeding the taking of such vote; that at the end of such year no further permits could be granted by the board of trustees unless the same was authorized by an affirmative vote at the preceding annual municipal election; and that as no such vote was had at the municipal election for the town of Hetland, for the year 1904, the board, in proceeding to grant such permits, was exceeding its authority, and the court was therefore

Opinion of the Court-CORSON, P. J.

(19 S. D.

right in issuing its writ of prohibition restraining the board from granting such permits.

It is contended, however, by the appellants, that the act in question constitutes a license law with local option provisions, and that the legal voters of the incorporated town of Hetland having voted, at its municipal election in 1903, in favor of thegranting of permits for the sale of intoxicating liquors, the board was authorized, under such vote, to continue to grant permits until the electors of the town by an affirmative vote decided that no permits should be granted; in other words, that, when the board was authorized to grant permits, that authority continued until the electors by an affirmative vote withdrew that authority from the board.

The determination of this question involves the construction of section 23, c. 72, p. 214, Laws 1897, constituting section 2856 of the Revised Political Code as amended by chapter 166, p. 191, Laws 1903. The part of the section material to the question now before us reads as follows: "At the annual mu- . nicipal election held in any township, town or city in this state for general municipal purposes, the question of granting permits to sell intoxicating liquors at retail within the corporate limits of such township, town or city shall be submitted to the legal voters thereof upon petition signed by (25) legal freeholder voters of such township, town or city, to be filed with the clerk or auditor of such township, town or city, thirty days before election, which petition shall state that a vote is desired upon such question

and if a majority of the voters of such township, town or city shall vote in favor of such sale of intoxicating liquors at retail the corporate authorities thereof shall grant permits for such sale for the ensuing

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Dec., 1904]

Opinion of the Court—CORSON, P. J.

year in accordance with the provisions of this act, but if a majority of the voters shall vote agaiost such sale, no such permits shall be granted.”

In order to properly determine the intention of the Legislature in enacting this section, it may be proper to review the policy of the electors of this state and former territory upon the subject of the sale of intoxicating liquors, of which the court will take judicial notice. During its territorial days the state, then territory, adopted the license system, incorporating therein local option provisions which authorized the electors of any county to prohibit the sale of intoxicating liquors in such county by an affirmative vote. Sections 2227-2232, inclusive, Comp. Laws 1887. Subsequently, upon the admis. sion of the state and the adoption of the Constitution, a provision was inserted in the Constitution prohibiting the manufacture and sale of intoxicating liquors. This constitutional provision remained in force until 1897, when the electors seem to have readopted the license system with the local option provision, in effect prohibiting the permits for the sale of intox- . icating liquors in towns and cities wherein no affirmative vote of the electors of such town or city had been had authorizing such permits.

It will be noticed that the section we are considering provides that if a majority of the voters of such township, town or city shall vote in favor of such sale of intoxicationg liquors at retail the corporate authorities thereof shall grant permits for such sale for the ensuing year in accordance with the provisions of this act; but if a majority of such voters shall vote against such sale no such permits shall be granted.”

It will be observed that the act of 1897 changed the license Opinion of the Court-CORSON, P. J.

(19 S. D.

law in force in 1887 by requiring an affirmative vote of the electors to be had at each annual election authorizing the authorities to grant permits, instead of, as in the former act, em. powering the authorities to grant permits unless there had been an affirmative vote prohibiting the granting of the same. This construction of the section we are considering clearly gives effect to the intention of the lawmaking power as evidenced by the proviso to section 23 as it was originally adopted. This proviso reads as follows: "Provided, that for the purpose of determining whether intoxicating liquors shall be sold at retail in any town, township or city in this state between the time when this act shall take effect and the next municipal election thereafter, when application sha'l be made in the manner provided in this act for the sale of intoxicating liquors at retail a special election shall be called by the city clerk or auditor of the city, or the town or township clerk of the township or town, to be held not less than twenty (20) nor more than thirty (30) days after application shall be made for a permit to sell such liquors as aforesaid, which election shall be held in conformity to the provisions of this section, and if at such special election a majority of the voters shall vote for such sale of intoxicating liquors at retail, permits shall be granted by the corporate authorities in accordance with the provisions of this act, but if a majority of such voters shall vote against such sale no permits shall be granted."

It will be observed that it is provided that, for the purpose of determining whether intoxicating liquors should be. sold at retail between the time when the act should take effect and the next municipal election thereafter, a special election should be called. If the contention of the appellants is corDec., 1904]

Opinion of the Court-CORSON, P. J.

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rect, then this provision was entirely unnecessary and useless, for under their theory the authorities would have been author: ized to grant permits after the law took effect, until restrained from so doing by an affirmative vote prohibiting them from granting the same. By this proviso, therefore, it was évidently the intention of the Legislature, in passing the law, that no permits should be granted until an election was held, and the officers, by an affirmative vote, were authorized to grant the same.

Of course, this proviso was not carried into the Revised Code, for the reason that it was applicable only to the time in tervening between the taking effect of the law-Märch 3;«I1897 and the ensuing municipal election. If there was any doubt, therefore, as to the construction to be given section 23 as it now stands, that doubt is removed by this proviso, and the construction contended for by the respondents, therefore, iš not only sustained by the language of the section itself, but is made perfectly clear by the proviso. It necessarily follows that the construction of the section contended for by the res spondents is the correct one, and that the authorities of Het! land had no puwer to grant the permits applied for in this case at the time they were proposing to grant the same, for the reason that the court found that the electors of that town'aid not, by an affirmative vote at their annual election in the spring of 1904, authorize such permits to be granted. I dist

The contention of appellants, therefore, that, when an affirmative vote has once been had the town board is author.! ized to continue to grant permits until a contrary affirmative vote is had, is not tenable. The view here expressed is in accord with the views of this court in the case of Hamm Brewing

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