West v. Bishop

Waterman, J. 1 The question we have to determine is ■whether the statement of consent filed before October 1, 1897, remained effective after the Code became operative, which wás upon that date. Chapter 62, Laws Twenty-fifth General Assembly, provided that the penalties then prescribed for the sale of intoxicating liquors should not be enforced when certain conditions had been •complied with; and, first among these, it was made necessary, in cities of five thousand population or over, to secure .a written statement of consent to such traffic, signed by a nnajority of the residents of said city who voted at the -last [414] general election, and file the same with the county auditor. Section 2448 of the Code is upon the same subject, and,, so far as material, is as follows: “In any city * * * 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 sale or keeping for sale therein or thereon by such person of such liquors, provided the following conditions are complied with: * * *" (1) Statement of Consent — Action of Supervisors. 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 general election as shown by the poll books of said election, "shall have been filed with the county auditor and shall by the bo-ard of supervisors at a regular meeting have been held! sufficient- and its finding entered of record, which, statement,, when thus found sufficient, shall be effectual for the purpose-herein, contemplated until revoked as hereinafter provided.”' It will be observed that the Code adds to the former requirement the necessity of having the statement canvassed by the board of supervisors, and its finding entered of record. We-have first to consider whether the act of the Twenty-fifth. General Assembly was repealed by the Code. Appelleedevotes considerable attention in argument to the doctrine of the implied repeal of statutes. But, in the view we take, this question has no place. Section 49 of the Code provides expressly for the repeal of prior laws, in these words: “All public and general statutes adopted prior to the present extra session of the. general assembly, except acts appropriating money, when the same has not been fully paid out, and all public and special acts, the subjects whereof are herein, revised or which are repugnant' hereto-, are- repealed subject: to the limitations and exceptions hereinafter expressed, but local acts are repealed only by express terms or on account of repugnancy.” This is an express repeal of chapter 62„ [415] Laws Twenty-fifth General Assembly, and, if it stood alone, would, of course, deprive all proceedings under that chapter of any force or effect. But the Code contained the following saving clause in section .51: “The repeal of existing statutes shall not affect any' act done, any right accruing or which has accrued or been established * * * when such repéal takes effect.” 2 We now inquire as to the nature of the interest acquired by 111 through the statement of consent filed by him under chapter 62, Laws Twenty-fifth General Assembly. If it was a right, it is saved to him; but, if a mere privilege,. it was lost through the repeal. That it was only a privilege we think is fully settled by State v. Mullenhoff, 74 Iowa, 271. Even where a license is given under proper authority for the sale of intoxicating liquors, it has-been held that-the licensee acquires no right which may not .be revoked. Columbus City v. Cutcomp, 61 Iowa, 672; Com. v. Brennan 103 Mass. 70. [416] 4 5 [415] The privilege which 111 had acquired under the statement of consent filed with the auditor having been revoked by the-repeal of the statute under which it was filed, it remains-to be seen what steps, if any, he should have taken for his protection. In our opinion, a new statement of consent' should have been filed, based upon the return of voters-at the last preceding general election. There are manifest and insuperable objections to permitting the board of supervisors now to -canvass a petition filed in 1895. One of these objections (and it is sufficient, we think to-.indicate that the general assembly did not intend to permit such a thing) is that- the poll books are not required to be-preserved more than eighteen months, or until a contest,, if one is pending, is disposed of. Therefore, in any attempted canvass now, the board would be without official evidence, and without themeans of verifying its conclusions. Cameron v. Fellows, 109 Iowa, 53. But it is said this require [416] ment as to the action of the board of supervisors applies only to statements filed since the going into effect of the Code; that the statements previously filed, and which under the old law were effective in creating a Bar to prosecutions, still remain so'. This idea is founded upon the thought of a right vested in the liquor seller. What we have already said on that point is perhaps sufficient to •dispose of the matter, but there is something further we may •add. On this theory, a distinction is made as to what must Be done to create a bar to prosecutions, between those liquor •dealers who acted before October 1, 1897, a!nd those who Rave acted or may act since that time. We can see no warrant for a distinction of this kind, and cannot believe the .•general assembly intended to create any such state of affairs. It is true, the law now distinguishes between dealers in the larger and smaller places, but this is founded upon a reasonable classification. There is a substantial basis for' the requirement that the statement of consent shall be signed by .■a greater number of residents in.a rural community, where 'there is inadequate police protection, than is sufficient in •cities; but the distinction contended for in this case has neither reason nor principle to support it. Prohibition is still the rule in this state. If facts exist which suspend the operation of the prohibitory statutes they must be set up as a defense. State v. Van Vliet, 92 Iowa, 476, and eases therein cited. It was necessary here for the defendant, in order to set out a defense, to show a compliance with the mulct law, so called. This he has not done. The demurrer to his answer should have been sustained. — Reversed. Granger, O. T., not sitting.