Landt v. Remley

Sherwin, J. [556] When the injunction was granted, the defendants supposed the mulct law was in force in Tipton; but the court held' that it was not, and that sales of intoxicating liquor made by the McConldes were illegal. After-wards, and before the attempted modification of the order, the mulct law became operative in Tipton, and the defendants McOonlde paid the required tax, and had au+hority from the city council to sell intoxicating liquor under the law. It is contended that the judge had no authority to modify the injunction order as to the use of the premises in vacation. This, we think, would be true as an abstract proposition, but in this cage the plaintiff, after service of notice of the application to modify the order, appeared and resisted it, not, however, on the ground of want of jurisdiction, as this question does not seem to have been raised. We see no reason why the plaintiff might not have consented to the modification of this order in vacation, and believe his appearance and submission of the question to the judge on its merits should be held'to show his consent thereto. Myers v. Funk, 51 Iowa, 92; Babcock v. Wolf, 70 Iowa, 676; 12 Enc. PI. & Prac., p. 129. The defendants McConkie were enjoined from continuing the sale of liquors contrary to law. This is all the statute under which the injunction issued provides for. By complying with the mulct law then iu force in Tipton, they might lawfully sell intoxicating liquor; and if they did no more than this, they would not he guilty of contempt, for there would be no violation of the injunction. But, on the other hand, if they made sales in violation of law, or if they made sales before complying [557] fully with the terms of the law which they plead as a bar, they would be guilty of a violation of the injunction and lionce guilty of contempt. Hawks v. Fellows, 108 Iowa, 133. The court below found against the claim of the plaintiff that the defendants’ place of business did not comply with the law, and that sales were in violation thereof, on account of the parties who bought, and with this finding we are disposed to concur. The record shows conclusively, however, that sales began on the eleventh day of January, 1900, and that the statement of consent of adjoining properly owners was not filed, as required by Code section 2448, until January- 20, 1900. The provisions of the mulct law can be interposed as a successful bar to a prosecution under the prohibitory law, only when it is shown by the defendant that he has brought himself within those provisions. State v. Van Vliet, 92 Iowa, 476. The filing of this statement of consent is a condition precedent to doing business. It is as strictly required by the statute as is the statement of consent filed with the county auditor and the resolution of the city council, and, until it was filed as required by law, the defendants acquired no right to the protection of the law invoked. See State v. Greenway, 92 Iowa, 472. It follows, therefore, that the sales concededly made between the eleventh and twentieth of January were illegal, and constituted a violation of the injunction. The finding of the district court is annulled, and the case remanded for further action in harmony with this opinion. — Annulled.