Thune v. Hetland

Bunn, J. The city of Ada, in Norman county, Minnesota, is a city of the fourth class operating under a home rule charter adopted pursuant to article 4, § 36, of the constitution. Defendant Hetland is mayor, defendant ITerringer clei’k, and the other defendants members of the city council. At an annual election held March 14, 1911, the question of granting license for the sale of intoxicating liquors in the city was submitted to the voters. A total of 254 votes were cast on the question, 131 votes being in favor of license and 123 against. The total number of voters who voted at such election for mayor, clerk, and members of the council was 265. Eleven voters thus failed to vote on the question of license. The council determined that a majority of the votes cast at said election were in favor of license. Thereafter certain residents of Ada applied to the council for licenses to sell intoxicating liquor. Plaintiff, a legal voter and taxpayer in Ada, brought this action to enjoin defendants from [397] granting any licenses to sell liquor. The state of Minnesota intervened, asking in its complaint the same relief. Defendants answered, and the case was by agreement submitted to the trial court for decision on the pleadings. The-court rendered a decision in favor of defendants, judgment was entered thereon, and the state of Minnesota appealed. The question involved is whether section 1533, Revised Laws of 1905, applies to cities of the fourth class operating under home rule charters. If it does, then, as there was not a.“majority of votes cast at the last election at which the question of license was voted upon” in favor of license, the sale of liquors is forbidden. State v. Village of Osakis, 112 Minn. 365, 128 N. W. 295. But, if this section does not apply, license carried under the provision of the charter of Ada that requires only a majority of those voting on the question. We are satisfied that section 1533 has no application to cities operating under home rule charters. A city council may grant licenses, without submitting that question to a vote of the people, if it is so provided in its charter. Kleppe v. Gard, 109 Minn. 251, 123 N. W. 665. If this is not subversive of the declared policy of the state, certainly the provision of the charter of Ada requiring a submission of the question to a vote of the people, and making the result depend upon the votes of those voting on the question, does not violate the declared policy of the state. It is true that, under the constitutional amendment authorizing cities to frame their own charters, such charters must be in harmony with and subject to the laws of the state; but this limitation only forbids the adoption of any charter provision contrary to the public policy of the state, as declared by general laws, or to its penal code, for example, provisions providing for the licensing of prize fighting, or gambling; or prostitution, or those which are subversive of the declared policy of the state as to the sale of intoxicating liquor. Grant v. Berrisford, 94 Minn. 45, 101 N. W. 940, 1133. Section 1533 is a part of the local option law of the state, applicable only to those towns and municipalities that are authorized by that law to vote upon the question of issuing license. It does not declare any policy of the state as to the number of votes necessary to cqn [398] stitute a majority, tbat would make a provision in a borne rule charter, fixing tbe number as a majority of those voting on tbe question, out of harmony with tbe laws of tbe state. Judgment affirmed.