Kane v. Grady

Sherwin, J. We take it for granted that the necessities of the public were such that tbe defendant was com [261] pelled to and did open his saloon for business as soon as possible after the statement of consent and the resolution of the city council had been filed as provided by law, and in the discussion of the case we shall assume that the tax year began not later than July 1, 1900. The petition did not allege that a statement of general consent and a certified copy of the resolution properly adopted by the city council consenting to sales of liquor by the defendant had been filed as required by law, but by stipulation these facts were before the district court, and considered by it in disposing of the demurrer; so that the controlling question in the case is whether the plaintiff could withdraw his consent after it had been acted upon by the defendant in locating his saloon. The statute (Code, section 2448) provides, among other things, that “a written statement of consent from all the resident freeholders owning property within fifty feet of the building” where the business-of selling intoxicating liquors is carried on shall be filed in order to bar prosecutions for such sale, and it is evident that if the consent of the plaintiff, given in 1900, was not effective at the time this suit was brought, the demurrer should not have been sustained. Section 2451 of the Code provides that whenever any of the conditions of section 2448 “shall be violated, or whenever the council of the city or town * * * shall by a majority vote direct it, or whenever there shall be filed with the county auditor a verified petition, signed by a majority of the voters of the said city or town, * * * as shown by the last general election, requesting it, then the bar to proceedings shall cease to operate, and the person engaged in the sale of intoxicating liquor shall be liable to all the penalties provided for in this chapter.” The statute does not expressly provide for the revocation of the consent given by the fifty foot property owners, and the appellee contends that the rule of exclusion applies; that, the statute having declared t-hat the voters and the city council may revoke, it follows that the property owner whose consent is necessary may not; and that his consent- once given and acted upon is [262] irrevocable. But we do not think this is true. Neither do we think that the property owner may revoke his consent at his “own sweet will,” as contended by the appellant. Section 2432 of the Code provides that every person carrying on the business “shall pay an annual tax, to be called a mulct tax, of six hundred dollars.” Under this provision it cannot be doubted that a person who is about to engage in the business and who has complied with the other requirements of the law, may ¡oay this annual tax in one sum at the beginning of the business, and continue the business for one year thereafter under its protection, provided he complies with the law in all other respects. True it is that the same section also provides for the payriient of the tax in quarterly installments, but this provision is evidently for the benefit of the taxpayer, and does not prohibit the payment of the whole tax at once. The second paragraph of section 2448 says that “the person appearing to pay the tax shall file'with the county auditor a certified copy of a resolution regularly adopted by the city council consenting to such sale by him,” and a written statement of consent by the property owner. This section, construed, as it must be, under well-settled rules, with the section to which we have already referred, means, in our judgment, that the property owners’ consent and the certified copy of the resolution of the city council must be filed when the person appears to pay the annual tax. Nor is this construction inconsistent with the power of revocation given the city council in the subsequent section, 'because there the power is given to, revoke the consent at any time during the tax year. If we have thus far correctly interpreted the legislative intent, we think it clearly apparent that it was not intended to permit a revocation of the property owner’s consent during the tax year. While his consent is necessary to bring the business within the protection of the statute, it relates to the place, and is intended for his own protection, rather than for the protection of the general public; otherwise the requirement would not have been made, for, as we have* seen, the [263] general public is given the means of protecting itself. In other words, the privilege of consenting or- refusing to consent is personal to the property owner. It is manifest that it would be a great hardship in many instances to permit this consent to be withdrawn immediately after it had been acted upon, and after expense had been incurred in reliance thereon. When money has been expended upon the faith of the consent, justice and fair dealing require that the person giving such consent shall not be allowed to destroy the rights acquired .thereby. Orcutt v. Reingordt, 46 N. J. Law, 337; State v. Gerhardt, 145 Ind. Sup., 439 (44 N. E. Rep. 469 33 L. R. A. 313); In re Adriance (Sup.) 69 N. Y. Supp. 314. On the other hand, such consent, given without consideration, should not be held irrevocable. And these considerations we have no doubt were in the legislative mind when the law under consideration was enacted. We believe this construction gives force and effect to every part of the statute, and to every reasonable implication which may be drawn therefrom. As it appears from the record that the consent of the plaintiff was not obtained and filed after May, 1900, it follows that his consent was not on file at the time this suit was instituted. The judgment is therefore reversed.