Clark v. Riddle

Deemer, J. 1 I. The district court found that the prosecution was not actuated by malice, or without probable cause, yet it taxed the costs of the proceedings to the plaintiff. This was manifest error, for the statute under which the proceeding was instituted, provides that: “The costs in case of failure of prosecution, or inability to collect the same from the defendant; shall be paid in the same manner as provided by law for the payment of fees in the case of criminal prosecutions. But nothing herein shall prevent the court trying such action from taxing the costs to the party bringing the same in case it appears the action was brought maliciously and without probable cause.” 2 II. The petition was in the ordinary form of papers in like cases, and the original answer was a general denial. After the evidence was adduced, the defendants filed an amendment to their answer, in which they stated: “That whatever business they carried on in the premises described in plaintiff’s petition, was carried on by them under and by virtue of the provisions and privileges granted by chapter 62, of the Laws of the Twenty-fifth General Assembly of Iowa, and aver that from and after May 25, 1894, they have complied with all the conditions and provisions of said chapter 62, upon their part to be done and performed; wherefore they say that such business was [273] lawful.” Appellants counsel contend that this amendment is a mere conclusion of the pleader, and states no issuable or traversable facts. No objection was taken to the pleading in the lower court, and we think that, in the absence of a motion or demurrer, it was good, and tendered an issue of fact which the defendants had the right to have considered. It may be that the pleading was not vulnerable to an attack of any kind, for it is provided by statute (McClain’s Code, section 3914), that “in pleading a statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof.” And section 2715 of the Code, also provides that “in pleading the performance of .conditions precedent in a contract is is not necessary to state the facts constituting such performance, but the party may state generally that he duly performed all the conditions on his part.” Although it is not necessary to decide the question, it occurs to us that these statutes have some relevancy to the pleadings, and that, construed with reference thereto, they are sufficient. [274] 3 4 [273] III. It is claimed that no copy of the resolutions of the city council of the city of Cedar Rapids, consenting to sales by the appellees, was filed with the county auditor, and it is further insisted that when this action was commenced, no such resolution had been signed by the mayor, as required by section 1, chapter 192, Acts Twentieth General Assembly, and section 1, chapter 2, Acts Twenty-second General Assembly. The certificate of the city clerk to the copy of the resolutions offered in evidence, shows that the original was duly passed, and signed by the mayor and clerk, on the twenty-fourth day of May, 1894, before this action was commenced. The only evidence we have to the contrary, is the testimony of awitness that he examined the ordinance book of the [274] city some time in the latter part of July, or first of August, and found that this resolution there recorded, was not signed by the mayor. He did not find the original resolution, and did not pretend to say that it was not signed by the mayor at the time it was adopted. A resolution' such as the one in question, does not have to be recorded in the ordinance book. All that is required is that it be entered upon the minutes of the council, and duly attested by the proper officers. The original copy of the resolutions filed with the county auditor, did not contain the signature of the mayor, but this was corrected within a few days after the petition was filed, and nearly three months before the cause came on for trial. Surely, a court of equity will not permanently enjoin the defendants, and hold their property to be a nuisance, and subject to abatement, because the city clerk neglected to attach the signature of the mayor to the copy of the resolution filed with the county auditor, especially where, as in this case, the error is corrected long before the case is called for trial. 5 IV. The bond given to meet the requirements of the law, was signed by Phillips and Lansing, as principals, and Henry Hanright and Thomas H. Lansing as sureties. Thomas H. Lansing was one of the firm of Phillips & Lansing, and it is said that the bond was insufficient. The statute with reference to the bond, required it to be signed by the principal and by the sureties, who shall qualify each in double the amount of the bond. As Lansing was already bound to the full penalty of the bond, as principal, it is no doubt true that signing his name as surety added nothing to the strength of the instrument, and that the bond is technically insufficient. But, at most, the bond was simply defective. McClain’s Code, section 326, provides that “no defective bond or other [275] security, * * * shall prejudice the party giving or making it, provided it be so rectified within a reasonable time after the defect is discovered, as not to cause essential injury to the other party.” V. It is also contended that defendants did not file a complete list of their employes. This contention is based .upon a misapprehension of the record. The employe whose name is said to have been omitted did not work around the premises in question. 6 VI. It is argued by counsel for appellant that an injunction should issue against the defendants personally, because the evidence shows that they are conducting another place than the one in question, in violation of law. It is said that this other place had more than one room in which liquors were sold. The difficulty with the argument is that it is the building which constitutes the nuisance which is sought to be abated, and the maintenance thereof enjoined. And the evidence should be confined to the particular building referred to in the petition. Proof that defendants were conducting another nuisance would not justify the abatement of the one complained of. The injunction does not run against the person for the mere selling of liquor in violation of law. It operates to abate and enjoin a nuisance conducted by him in the building referred to in the petition, and by operation of law is extended to him in person, so that he may not sell at any place within the judicial district. But no court has jurisdiction to simply enjoin one from selling liquor, independent of the place where the nuisance exists. 7 VII. The real question in the case is, whether the bar created by section 17, of the “Mulct Law” (Acts Twenty-fifth General Assembly, chapter 62) is applicable to cities acting under special charters. The city of Cedar Rapids is so acting, and it is claimed by counsel for appellant, that the [276] provisions of the act to which we have referred, have no application to such a place. And they cite, in support of their contention, section 21, chapter 116, of the Laws of the Sixteenth General Assembly (section 941, of McClain’s Code), which is as follows: “No general law as to powers of cities organized under the general incorporation act, shall in any manner be construed to affect the charter or laws of cities organized under special charters, and while they continue to act under such charters, unless the same shall have special reference to such cities.” It is said, that the act in question is a general law, relating to the powers of cities organized under the general incorporation act, and that it does not make special reference to cities organized under special charters. That the law is a general one, must be conceded, and it is also certain that it does not specially mention cities acting under special charters. The only question which remains is, do the provisions of this act of the Twenty-fifth General Assembly, creating the bar, relate to the powers of cities organized under the general incorporation act? If they do, then it is clear, that they cannot be made to apply to cities acting under special charters. It is true, that the primary obj ect of the act is to levy atax on the business of liquor-selling anywhere within the state. See sections 1-14 of the act. The secondary, obj ect of the act, however, is to relieve the person engaged in the business from the penalties which ordinarily follow the sale or keeping for sale of intoxicating liquor. This can only be accomplished by securing from the city council of a city of over five thousand inhabitants, a resolution consenting to the sales. This consent the city may grant or withhold, at its pleasure; and, if granted, it may revoke it at any time, and thus subject the person engaged in the business to the penalties of the prohibitory law. See sections 17 and 19 of the act. The city also has power to levy and [277] collect additional taxes, and to adopt, from time to time, rules and ordinances for further regulating and controlling the traffic, not in conflict with the other provisions of the act. See section 24. Do these provisions affect the powers of municipal corporations? Do they add to or subtract' from the powers of cities organized under the general incorporation act? It seems to us that they most clearly do. The city, through its council, has the right to consent to sales of liquor, and without such consent the act is unlawful. It may withhold its consent or not, as to it may seem best. After giving its consent, it may revoke it at pleasure. It receives one-half of the tax, and may increase the amount levied by the general law at its pleasure. It may also adopt such rules and ordinances with reference to the conduct of the business as to it may seem best for the purpose of protecting property and preserving the peace and good order of the inhabitants. These provisions, if applied to Cedar Rapids, would affect the charter and laws of that city. They would give it additional power, and'confer upon it the right to collect additional taxes, which it did not otherwise possess. The constitutionality of the act was sustained,, on the theory that it was a delegation of power to a city, authorizing it to regulate the traffic in intoxicating liquors in the exercise of its police power. On no other theory, in our opinion, could the constitutionality of the act be sustained. State v. Forkner, 94 Iowa, 733 (62 N. W. Rep. 772). Counsel for appellees say, in argument, that the provisions of section 24, of the act, may be disregarded, and the'other parts of the act sustained. Under some circumstances this might be true. But this section is important to a determination of the question as to the scope and intent of the act as a whole, and cannot well be disregarded in settling the question as to the legislative intent. Section 941, of McClain’s Code, gives us a rule [278] for the construction of subsequent acts of the legislature, and we must assume that the Twenty-fifth General Assembly had this section in mind when it passed the law in question. But for this enactment, we could well say that it was the purpose of the legislature to refer the whole matter of the control of the liquor traffic to the various municipalities of the state in recognition of their right of local self-government; and the public history of the state with reference to this matter would bear us out in giving it this interpretation. The act of the Sixteenth General Assembly clearly precludes such a thought, however, for it expressly says that “no general law * * * shall in any manner be construed to affect the charter or laws of cities acting under special charters, * * * unless the same shall have special reference to such cities.” There is nothing in the act under consideration, to indicate that the legislature had in mind the repeal of this statute. Indeed, the contrary appears, for in various acts passed by this legislature, that body recognized the binding force of section 941, and whenever it desired to have an act apply to cities acting under special charters, it specially mentioned them. Whenever it did not design to have the acts passed by it apply to special charter cities, they are not mentioned. See chapters 1, 8-9, of the Acts of the Twenty-fifth General Assembly. It is thought that' the law, if construed as contended for by appellees, does not affect the charter or laws of the city of Cedar Rapids. The charter of a corporation is the instrument creating the corporate body, giving it its name, defining its objects, and conferring its powers. Its laws are the by-laws, rules, regulations, and ordinances passed by the governing body, under and by virtue of its charter, or necessarily incident to the exercise of its charter powers. The charter of the city of Cedar [279] Rapids, defining its powers, did not authorize its council to consent to- sales of liquor within its borders, nor to withdraw its consent to such sales. Its laws, which we must assume to be in harmony with its charter, did not authorize any such thing. The city council had no right, under the charter or laws of the city, to suspend the penalties of the prohibitory liquor law. Now, does the act under consideration, authorizing the city council to consent by resolution to the sale of liquor, affect the powers of the city of Cedar Rapids? The word “affect” means “to act upon; to change;” and the test we have heretofore applied, is to determine whether the act adds to or substracts from .the powers vested in the municipal corporation, acting under a special charter. No one would contend, we think, that the law, if applied to the city of Cedar Rapids, would not add to the powers vested in it by its charter. If construed to apply to them, it would certainly change, and thus affect, the charter and laws of cities acting under special charters. This exact question was decided adversely to appellees, as we understand it, in the case of State v. Finger, 46 Iowa, 25. If it be said that the law under consideration does not affect the charter and laws of the city of Cedar Rapids, it is'difficult to see when and how it acquired the power and authority to pass a resolution consenting to the sales of liquor within its borders. And, if it had no power to do so, then the sales made by defendants were unlawful. Our conclusion is, that the provisions of the act of the Twenty-fifth G-eneral Assembly, creating the bar, relate to the powers of cities organized under the general incorporation laws, and that they do not relate, to or affect, cities organized under special charters, for the reason that they are not specially mentioned. In other words, the case comes squarely within the provisions [280] of McClain’s Code, section 941. Appellees’ counsel cite Grant v. City of Davenport, 36 Iowa, 404. This case is not in point, for the reason that it was decided prior to the act of the Sixteenth General Assembly, before quoted. If it has any bearing, it is in support of our conclusions. The cases of State v. Finger, supra, and Bartemeyer v. Rohlfs, 71 Iowa, 582 (32 N. W. Rep. 673), are in line with our views. We have no occasion to consider the validity of the tax imposed by sections 1-14 of the act, as such a question is not before us. For the reasons assigned, the decree of the district court is erroneous, and should be reversed. A decree will be entered in this court against all the defendants, as prayed, and judgment entered against them for costs, which will include the sum of one hundred dollars as attorney’s fees for plaintiff’s attorneys. — Reversed.