Barber v. DeFord

Withrow, J. l. Intoxicating IjIQUOiís : statement of consent: duty to canvass all statements: statutory construction. — I. The appellee urges that this court is, and that the district court was, without jurisdiction to consider this appeal for the following reasons: a. Valley Junction is a city having more than 2,500 and less than 5,000 population. Under Code Supplement See. 2450, there is no provision — 695 — for any finding by tbe board of supervisors as to the result of the canvass of petitions under the mulct law in cities of that class, and, therefore, there can be no appeal from the finding of the board, as no authority or duty is created in the board to make a finding. b. That the cited section, while providing that all statements of consent filed with the county auditor shall after due notice be publicly canvassed by the board of supervisors, limits the power and duty of the board to entering of record its findings as to the result in “the city having over five thousand inhabitants, or the county, as the ease may be, and the various towns and townships therein,” and by necessary implication excludes cities between 2,500 and 5,000 in population, no. reference being made to them, such cities having a different requirement from other cities and towns as to the • number of names necessary to authorize the sale of liquor under the mulct law. c. That Sec. 2448, which provides for the canvass of petitions in cities of the class under consideration and the entry of the findings of record, is complete in itself, and in that section no right of appeal is granted. That such section provides for a canvass of the petitions at a general or special meeting of the board, while Sec. 2450 authorizes, as to the matter which may be considered under it, findings to be made only at a regular meeting of the board. It is claimed by appellee that by failing to mention cities between 2,500 and 5,000 in population among those expressly named, and as to which the findings of the board of supervisors shall be entered of record, it must be held to have been the intent of the legislature to exclude them. Code Supplement Sec. 2450, provides that ‘ ‘ all statements of general consent filed with the county auditor as provided in the two preceding sections (2448 and 2449 Supp.), shall be publicly canvassed,” etc. In that general provision is necessarily included cities of the population in question, the requirements as to which are fixed in Sec. 2448, Supp., unless they — 696 — are expressly excepted. Does tbe omission to include such cities in express terms in the clause “cities having over five thousand population, or the county, and the various towns and townships therein” leave them outside the operation of that section? While it is a settled rule of statutory construction that where general terms of expression in one part of a statute are inconsistent with more specific or particular provisions in another part, the latter will generally control, it is also the rule that a particular expression in one part of a statute not so large and extensive in its import as other expressions in the same statute will yield to the larger and more extensive expressions, when the latter embody the real intent of the legislature. 36 Cyc. 1130 and cases cited. A careful reading of Sees. 2448, 2449, and 2450, Code Supp., leaves no doubt that it was the legislative intent that as to all classes of cases arising under them the right of appeal should be afforded to both parties as they might seem to be aggrieved. While the legislative intent must, if possible, be determined by a construction of the language it has used, where there is conflict of terms in the same section the rule above stated has full application; and in Sec. 2450 the alleged conflict between the general and the particular expressions, in the light of the purpose of the legislature as expressed in the cited sections, is not of such gravity as to compel us to hold that the general provisions’ must yield to the particular ones. ' We conclude that the provision in Sec. 2450 as to the finding by the board of supervisors, and making a record of such, applies to all eases which are covered by the general terms of the section, that the right of appeal is given, and that we have jurisdiction of the cause. II. By concession made upon the trial of the case in the lower court, it appears that the total vote of Valley Junction at the general election last preceding the circulation of the statement of consent was 412, and that the statements filed contained 352 names. Based on the total vote as shown, the number of signatures required, that is, eighty per cent of the legal — 697 — voters in cities of that size, being between 2,500 and 5,000 population, was 330. Included in the total of 352 signatures are four which are conceded to be duplicates, five whose names do not appear .on the poll list, and one who was a non-resident at the time of the circulation of the statement of consent. This concededly reduced the number of signatures to 342. Of this number, seventeen made withdrawals of their signatures; and of this seventeen, upon the submission of the statement of consent to the board of supervisors, nine filed requests for withdrawals of their withdrawals. Two of the remaining number signed by a mark, which was witnessed only by the canvasser who made the affidavit. Seven, whose names appeared on the poll book with only their initials, signed the petition or' statement of consent by using Christian names and initials, as follows: ON POLL BOOK. ON PETITION. P. MeCanna Patrick MeCanna G. W. Pring Geo. W. Pring B. Strange Basil Strange' C. A. Pray Chas. A. Pray F. D. Gray Frank D. Gray F. J. Hester Fred J. Hester P. J. Casey Peter J. Casey The witness to the name of A. H. Dyke on the petition swore to the same before a person who purported to be a notary public in and for Polk County, Iowa, but the notary’s seal attached to the affidavit indicated that he was a notary public in and for St. Johns County, Florida. . The witness as to the name of G. J. Zerwech on the petition made affidavit before a notary who properly signed himself as a notary public in and for Bureau County, Illinois, but at the head of the affidavit appeared the caption: ‘‘ State of Iowa, Polk County, SS.” It was also agreed that the name L. E. McCelland was — 698 — signed by L. E. McClelland; R. H. McCulland was signed by R. H. McClelland; W. B. Osborne was signed by W. D. Osborne, the first of each of said names being as shown by the poll list. The agreement as to facts simplifies the case. The trial court found the statement of consent to be sufficient. The appellant concisely states the question presented for our determination under the conceded facts as follows: 1. Should the nine withdrawals of withdrawals be considered? 2. Should the seven names in which the initials only were given on the poll books, and the full name written on the petition, be counted? 3. Should the three names appearing alike on both the petition and poll book, but claimed to be spelled in a different manner from what the person who signed the petition usually signed his name, be counted? 4. Should the two names in which there was an alleged defect as to the notary’s acknowledgment be counted? 5. Should the two names signed by mark, where the mark was witnessed only by the person circulating the petition, be counted? The questions raised challenge twenty-three signatures. We will consider them in the order in which they are stated. 2. Intoxicating liquors: statement of consent: filing : withdrawal of name: withdrawal of withdrawal. III. From the conceded facts it appears that on the 13th day of February, 1911, at eleven o’clock A. M., there were filed with the county auditor statements in writing by seventeen persons who had signed the statement of consent, requesting that their names be stricken from it, and be not counted. It also appears that these seventeen withdrawals were on the same day presented to the board, that being the time when the canvass of the statement of consent was made; and at the time the seventeen withdrawals were presented, there were also filed with and pre — 699 — sented to the board of- supervisors for their consideration, the written requests of nine of those who had signed the withdrawal statements, requesting that their names remain on the statement of consent. The record contains no other statement as to the time and manner of filing the nine withdrawals of withdrawals, and it must be concluded that the first publicity given to them was at the time they were filed with and presented to the board of supervisors, then sitting as a canvassing board. From these facts we must determine whether the nine withdrawals of withdrawals had the effect of concelling the prior withdrawals and reinstating the names on the petitions or statements of consent. IV. In the several cases decided by this court- involving! - - the sufficiency of statements of consent to the sale of intoxicating liquors under the mulct law, it has been recognized that the right to withdraw a signature from the statement rests in the person signing the statement, and may be exercised by him up to the time that the canvass of the statement is actually commenced by the board of supervisors. Green v. Smith, 111 Iowa 183; Scott v. Naacke, 144 Iowa 164; Lemon v. Drexel, 152 Iowa 144; De Board v. Williams, 155 Iowa 149; Anderson v. Board, 156 Iowa 153. The conclusion reached and announced by this court upon that question has not been the result of statutory construction, for the law regulating the presentation and canvassing of statements of consent has no provision allowing the withdrawal of names, but such conclusion is based upon what has seemed to be a necessary recognition of the right of an individual to change his mind upon a question as to which he has expressed himself, if such be done before the matter is taken up for consideration by the canvassing body whose action upon it is invoked. In some of the cited cases, under the facts there presented, we have held that withdrawals of withdrawals or cancellation of withdrawals should not be allowed, the reason — 700 — ing employed by the court being that upon the filing of a withdrawal, the effect eo instanti is to remove the name from the original petition, and that the attempted cancellation of the withdrawal, if .allowed, could have no other effect than to reinstate upon the petition a name which had been removed; in other words, really a re-signing of a name or names to the petition. To add to a petition or statement of consent already filed is not allowed, for no name shall be counted which was not signed thirty days prior to the time of filing the statement of general consent. In discussing this question in DeBoard v. Williams, supra, this court recognized the right of the elector to change his mind on any subject as often as he Tl&aseS;-s& -long-as-he withholds his intention or conclusion from the record. But when the statement of consent, with his name thereon, is filed with the auditor, it must remain unless withdrawn, and if withdrawn, his name is no longer to be considered as being upon the petition. This court in that case distinguished it from State v. Geib, 66 Minn. 266, which seemed to hold to a contrary doctrine, so far as it applied ta-.the cancellation of withdrawals. In the Geib case it was claimed, and the court so held, that if the withdrawals which had been authorized to be made by an attorney in fact and the revocation of the power of attorney which authorized the withdrawals were presented to the canvassing «board , at the same time, the effect was to recall the withdrawal, as notice of the revocation had been given to the attorney in fact and to the board before atoy action was taken upon them by the board. In considering that case, this court in the DeBoard case noted that the presentation of the withdrawals in the Geib case was shown to have been against the wishes and demand of those signing them, and, therefore, not binding upon them; while in our own case, then being discussed, the withdrawals were presented with the express authority of those signing them, and this operated to remove their names as petitioners. As this court in Anderson v. Board of Supervisors, 156 — 701 — Iowa 153, seemed to leave open the question whether withdrawals of withdrawals should be counted, that case having been decided after the opinion in DeBoard v. Williams, supra. was filed, we deem it important to note the facts upon which the decision in the DeBoard ease was based. In that case the board of supervisors convened for the purpose of canvassing the statement of consent on December 26, 1910, at nine o’clock A. M., at which time the petitions and the larger number of withdrawals were brought before that body, the time of canvassing having, by previous action of the board, been postponed from December 21st to December 26th. On the day fixed, the .petition of consent and the petition for withdrawals filed December 26th were presented. After hearing arguments upon law questions presented, and before the canvass had actually commenced, the board adjourned until the afternoon, and upon reconvening, a petition for the recall of withdrawals was presented, containing fifty-one names, following which the board adjourned until nine o’clock of December 27th, at which time the actual canvass was commenced and continued to a conclusion. On the 27th of December, at nine o’clock A. M., ten additional cancellations of withdrawals were filed, and at two o’clock P. M. of the same day, six more were filed. The trial court on appeal, after allowing the cancellation of withdrawals, found the petition to contain twenty-nine names more than a majority of the qualified electors, and, therefore, sufficient. Upon appeal to this court we held the cancellation of the withdrawals should not have been counted, and reversed the holding of the trial court. It will be observed from this conclusion that even though question be raised as to the effect of the cancellation of withdrawals, numbering sixteen, which were filed on the 27th of December, the day after the board met for the purpose of entering upon the canvass, the cancellations filed on December 26th, being fifty-one in number, were, in view of the finding of the trial court, decisive of the result. From the facts conceded in the present case, it appears — 702 — that the canvass by the board was made February 13, 1911, and on that day were presented to that body the' petition and withdrawals, which had been filed with the county auditor, and the cancellation of withdrawals, which it appears were first filed with and presented to the board. True, in the DeBoard case the withdrawals and cancellation were not presented concurrently, while in the present case such was done, although the withdrawals had previously been filed with the county auditor, the lawful custodian of the petition, and the cancellations had not been so filed; but in both instances, the actual canvass had not been commenced at the time of the filing of the withdrawals of withdrawals. The two cases, therefore, are substantially alike in their facts, and the reasoning which was applied to and controlled the DeBoard case has equal application here. If the reasoning of the DeBoard case is sound, and we have no disposition to recede from the -position then taken, it must logically follow that, granting that the effect of a withdrawal is to remove the name from the petition after it has been filed with the county auditor, who is by the statute made its lawful custodian, if thus removed there is no means known to the law by which it may be reinstated. While it is true, as heretofore stated, that the right of withdrawal is not of statutory origin, the reasons for recognizing it are well stated in our previous decisions, to which we already have referred. It is urged with some force that if the right of withdrawal be recognized, it should equally be the right in the elector to rescind the act of withdrawing at any time before the petition is actually presented for canvassing by the board of supervisors. Were we to depend alone upon the claim that the right of withdrawal having been recognized by the court, the right to cancel such act should also and for equal reasons be granted, and rest the proposition upon the power of the court to effectuate by construction the purpose of a legislative act, we might with some show of reason reach the end contended for; but if we give force to our previous decisions, and the reasons upon — 703 — which, they are based, not only in eases arising under the mulct law, but also in county seat removal cases, where the principle which governs is the same, we are bound to hold that after the petition or statement of consent has been filed with the county auditor, as the basis upon which he must publish notice of the intention and request of the petitioners that the privilege to sell intoxicating liquors under the provisions of the mulct law shall be allowed, while withdrawals may be allowed, when such act is completed, the effect is to remove the name or names from the statement of consent, and a cancellation or withdrawal of the withdrawal does not have the effect of reinstating the name. See Lemon v. Drexel, supra; Green v. Smith, supra; Scott v. Naacke, supra; DeBoard v. Willimns, supra; Willing v. Rye, 123 Iowa 471; Loomis v. Bailey, 45 Iowa 400; Dunham v. Fox, 100 Iowa 131. To reach a different conclusion would require an abandonment of the position taken by this court in many decisions; but we are satisfied that the conclusion now reached is not only in harmony with them, but on principle is right. We have been referred to no decision save the Geib case in support of a contrary doctrine, and this, as we have noted, has features which distinguish it from the present case; nor have we been able to find any other case which recognizes the right of cancellation of a withdrawal, under conditions as shown in this record, to be a legal right. This case is different in its facts from Riley v. Litchfield decided at the present term. There the cancellation of withdrawal was filed before the withdrawals and operated as a cancellation of the previous act before it had in any measure become effective. Some of the judges are of the opinion that as the law now here exacts the filing of the withdrawals with the county auditor, these may and must be laid before' the board of supervisors, and that if the revocation thereof is presented at the same time, the revocation will become effective to obviate the with — 704 — drawals, and the names should be counted as on the petition, and that such was the holding in DeBoard v. Williams; but the majority are with the conclusion here reached. 3 names • ruiesSttoncietertetoxicatíng7: liquois. V. Should the names of the seven voters which appeared on the statement of consent different from their entry on the poll book, be counted 1 As earlier noted, the names as signed were with the given name in full, as Patrick McCanna; while on the poll book the name was given by.initial only, as P. McCanna, Some 0f gjgna^ureg two initials, and where such was used, the signature on the petition had the same middle initial. The question raised as to this branch of the case, while presenting some difficulties, has been fully determined against the counting of such signatures in Riley v. Litchfield, supra. 4. Intoxicating liquors : statement of consent: incorrect poll lioolr: signatures to correspond : identity. VI. These names appear alike on both petition and poll book, but are claimed to be spelled in a different manner from that in which the voter usually signed his name. In Taft v. Snouffer, 157 Iowa 461, this court held that where the voter, in signing the petition, adopted the form of spelling his name as it had been entered by the poll clerk, such was a literal compliance with the statute. In that case it was conceded that in each instance where the names were so signed, the voter actually did vote, and that the name as listed was intended by the clerk for the name of such voter. This branch of the case also is ruled by Riley v. Litchfield, supra. The concession at the time of the trial that the several names were signed by persons bearing different names does not go to the extent of proving the identity of such persons with the ones who actually voted under the names appearing on the poll book. This brings the case within the rule of the cited case, and the names should not have been counted. — 705 — Intoxicating liquors : statement of consent: affidavit to signatures ; foreign notary. — 704 — VII. The witness to the signature of A. H. Dyke swore to the fact before a person whose certificate recited that he — 705 — was a notary public in and for Polk County, Iowa. The seal used in the acknowledgment showed authority to so act in Florida, and overcame the recitation that the acknowledging officer was a notary public for Polk County, Iowa. Authority cannot be found to uphold an alleged official act of a notary public of St. Johns County, Florida, performed in Polk County, Iowa. The name A. H. Dyke on the petition was, therefore, not properly witnessed. Intoxicating liquors : statement of consent: verification of names: foreign notary. The witness to the name of C. J. Zerwick made affidavit before a notary public who signed himself, as such, in and for Bureau County, Illinois, but the caption of the affidavit was State of Iowa, Polk County, SS. With the exception noted, the affidavit was regular in form. In the absence of evidence to the contrary, it is presumed that the affidavit was taken by the notary public in the county where he was authorized to act. The caption or heading does not overthrow this presumption. Goodnow v. Litchfield, 67 Iowa 691-696. The name Zerwick coming within this objection was properly counted, and that of A. H. Dyke was not entitled to be considered. 7. Intoxicating statement of sfenirniW maik' VIII. The fifth point or query of appellant has not been argued, but we hold that where signatures were by mark, and were proven by the affidavit of the person circulating the petition, such is a compliance with the statute, and that names thus witnessed, if without other objection, should be counted. IX. We have noted all questions raised by the appellant. We recapitulate, and state the result of our conclusions as follows: The original statement of consent contained 352 signa- • tures. Deducting the four duplicates, five whose names did not appear on the poll list, and one non-resident, all of which it is conceded should not be counted, there remain 342 names. — 706 — From this number should be subtracted seventeen withdrawals, one not properly verified by notary public, seven names which vary from the names on the poll list, and three names which were signed by persons having different names, leaving a net list of 314 names. The number required to grant the petition is 330 names. The statement of consent is insufficient. The finding and decree of the district court is — Reversed. All Justices concur, except as to Paragraph IV, in which a majority concur.