#### State *ex rel.*Crothers *et al.*v. Barber *et al.,*Town of Hetland Trustees.

1. Laws 1897, p. 2Í4, c. 72, § 23, constituting Rev. Pol. Code, § 2856, as amended by Laws 1903, p. 191, c. 166, relating to the sale of intoxicating liquors, provides that the question of granting permits to sell at retail shall be submitted on petition at the annual municipal election held in any township, town, or city, and, if i majority vote in favor thereof, the corporate authorities shall grant permits “for the ensuing year.” Held, that this required the annual submission of the question, and limited the power to grant permits to the ensuing year after an election favoring the same, unless authorized by an election for the following year.

2. Construing such section thus does not make the law of 1897, p. 203, c. 72, a prohibition law instead of a license law, and therefore unconstitutional because the term “prohibition” is not used in its title.

3. The law is not unconstitutional as delegating power to' local communi- . ties to prohibit or authorize such sale, as the law is uniform in its operation throughout the state, applies to all persons, and does not leave the question of prohibition to towns and cities, as it does prohibit the sale unless the conditions are complied with.

(Opinion filed December 21, 1904.)

*2Appeal from circuit court, Kingsbury county; Hon. Charles S. Whiting, Judge.

Prohibition by ."the state,, oh The relation of-'P. R. Crothers and another, against L. W. Barber and others, trustees of the town of Hetland, in Kingsbury county. , From a judgment awarding, thq writ, defendants.appqal.

^Affirmed.

*^aubnian-á WiUiamsbn,*for appéllants. •'

*Warren & Warren (Aubrey Latvrence,*of counsel), for respondents.

Corson, P. J.

This is ah appeal from a judgment awarding a writ of prohibition against defendants, as trustees of the incorporated town of Hetland. The facts found by the court, upon which the writ-of prohibition was based, are in substance as follows: That relators' were residents, taxpayers and legal voters of the town of Hetland, and that said town lyasduly. incorporated; that, the defendants constituted the duly elected, qualified,' and acting board of trustees of said town; that applications were made by various persons,.in due form of law, for permits to sell intoxicating- liquors in said town during the ye'ár commencing July 1, 1904, and ending July 30,1905,'which applications were filed with the clerk," and the board of trustees set a day for hearing said applications, and directed notice thereof to be published,, which was duly published; that the question of granting permits or of receiving license for the sale .of- intoxicating liquors was not submitted- to the legal vot; ers of-said town at the annual municipal election held therein for .'the' "year 1904'; that the question of sale of intoxicating liquors ,at . retail in ■ ...said,. t,o.wn ,- was submitted to the .legal voters - .thereof at the annual *3municipal election held therein íor the year. 1903, and that a majority of the legal voters at said election voted in favor of the sale of intoxicating liquors at retail in said town, and . that since said vote no other vote has been had on said subject in said town; that no application was ever made, and no petition ever .filed,’ requesting that said question be submitted to a vote at the annual municipal election held therein for 1904; and that the'board-intended to issue permits to the applicants, should ■they on the said hearing deem them fit and proper persons.

/ ’ ■. It is urged by the respondents, in support of the judgment of.the, circuit court and the writ of prohibition issued by it, that inasmuch as the electors of the incorporated town of . Het-land had not voted at the annual municipal election of 1904 to license the-sale. ofJintoxicating liquors, the .board of trustees had no authority to'grant .permits to parties to sell during the ensuing year .Commencing July 1, 1904; that chapter 72, p. 203, Laws-1897, being sections 2834-2860 of the Revised Political Code,! was in effect a prohibition act, and prohibited thé sale of intoxicating liquors in all incorporated cities and towns unless the'same was authorized by a vote of the electors of such town or city at each annual election, and that when such a vote was had, authorizing thé sale of intoxicating liquors, power to grant permits authorizing the sale was limited to the one year succeeding the taking of such vote; that at the end of such year no.further permits could be granted by the board of trustees-unless the same was authorized by an. affirmative vote at the preceding annual municipal election; and that as no such vote was had ah the municipal election for the town of Hetland; for the:year. 1904, the board, in proceeding, to grant such permits, was exceeding its authority, and the court was therefore *4right in issuing its writ of prohibition restraining the board from granting such permits.

It is contended, however, by the appellants, that the act in question constitutes a license law wfith local option provisions, and that the legal voters of the incorporated • town of Hetland having voted, at its municipal election in 1-903, -in- -favor of thegranting of permits for the-sale of intoxicatingliquors, the board was authorized, under such vote, hr continue • to grant permits until the electors of the town by ■ an affirmative vote decided that no permits should be granted ; in other words, that, when the board was authorized to grant permits,-that authority continued until the electors by an affirmative- vote withdrew that authority from the board.- - ,.

The determination of this question involves- the Construction of section 23, c. 72, p. 214, Laws 1897, constituting section 2856 of the Revised Political Code as amended by chapter 166, p. 191, Laws 1903. The parbof the section material to the question now before us reads as follows: ■ “At the annual municipal election held in any township, town or city in this state for general municipal-purposes, the question of-granting per-: mits to sell intoxicating liquors at retail within the corporate limits of such township, town or city shall be submitted to the legal voters thereof upon petition signed by (25) legal freeholder voters of such township, town or city, to be filed with the clerk or auditor of such township, town or city, thirty days before election, which petition shall state that a - vote is desired upon such question * * ■ * and if a majority of. the voters of such township, town or city shall vote - in, favor of such sale of intoxicating liquors at retail the’ corporate authorities thereof shall grant permits for .such sale, for the .-ensuing *5year in accordance with the provisions of this act, but if a majority of the voters shall vote against such sale, no such permits shall be granted. ’’

■ In order to properly determine the intention of the Legislature in enacting this section, it may be proper to review the policy of the electors of this state and former territory upon the subject of the sale of intoxicating liquors, of which the court will take judicial notice. During its territorial days the state, then territory, adopted the license system, incorporating therein local option provisions which authorized the electors of any county to prohibit the sale of intoxicating liquors in such county by an affirmative vote. Sections 2227-2232, inclusive, Comp. Laws 1887. Subsequently, upon the admission of the state and the adoption of the Constitution, a provision was inserted hrthe Constitution prohibiting the manufacture' and sale of intoxicating liquors. This constitutional provision remained in force until 1897, when the electors seem to have readopted the license system with the local option provision, in effect prohibiting the permits for the sale of intoxicating liquors in towns and cities wherein no affirmative vote of the electors of such town or city had been had authorizing such permits.

■ It-will be noticed that the section we are considering provides that “if a majority of the voters of such township, town or city shall vote in favor of such sale of intoxicationg liquors at retail the corporate authorities thereof shall grant permits for such sale for the ensuing year in accordance with the provisions of this act; but if a majority of such voters shall vote against- such sale no such permits shall be granted. ”

It will be observed that the act of 1897 changed the license *6law in force in 1887 by requiring an affirmative vote of • the electors to be had at each annual election authorizing the authorities to grant permits, instead of, as'in the former act, empowering the authorities to grant permits unless there - had been an affirmative vote prohibiting the granting of the' same.: This.construction of the section we are considering clearly gives effect to the intention of the lawmaking' power as evidenced by the proviso to section 23 as-it was originally .adopted. This proviso reads as follows: . “Provided, that for the. purpose of determining whether intoxicating liquors' shall be sold at retail in any town, township,.or city in this state be-’ tween the time when this act shall take:effect and the next mu-,' nicipal election thereafter, when application shall -he made .-in the manner provided in this act .for the sale of intoxicating, liquors at retail a special election shall be called by. the city-clerk or auditor of the city, or the town or 'township -clerk, of the township or town,'to be held not less than twenty (20) nor more than thirty (30) days after application shall be made, fora permit-to sell such liquors as aforesaid, which election, shall-be held .in conformity to the provisions of this • section, and if: at such special election a.majority of .the voters shall'vote 'for ■ such sale of intoxicating liquors at retail, permits -sha)l '..be' granted by the corporate authorities in accordance with' the provisions of this act, but if a majority - of such voters shall' vote against such sale no permits shall be granted. ”

■ It will, be observed that it is provided that, for' the pur#' pose of determining whether intoxicating liquors should be sold at retail between the time when the act should take effect' and the next municipal election thereafter, a special election should be called. If the contention of the appellants is cor-*7ítéet,. then this provision was entirety- unnecessary andcuseless,' forunder their theory the authorities would hdve been‘authorized, to .grant permits'after the la-w -took-effect,. üñiílA restrained! from so doing by >an affirmative vote prohibiting 'Ibeítí-i'rOffi granting the.same. 'By this proviso, 'therefore;'it#&s)févidóhti ty'the intention of .’the Legislature, in passing theRáw^-thatftpb permits should be granted until' an election was1 héld/dand^the officers gby an affirmative'vote, • were -authorized' to"grant"itfe'óI same. ' : .‘ui.. riv i *vn-m*

Of .courser'this.provfso was not carried' into- the" Revised Oodepforthe reasbn.thatit veas, applicable onlyi'to-the tithe,■dht' térvéning-between the-taking effect of. the law-1-iMi,rc>h- '.3gIl-§9f!i' -wand the ensuing municipal election.1 If ther&^'Us'-áü-yvdo&b'tv therefore, as-.to the .construction, to be 'given - section '28--4á"liil) now stands, that - doubkiis removed1 by- this ■ proviso/^alM 'tM? construction -contended-'.forídty theóréspohdétits, !'th:érelf<#'é|i not-'only sustained by- the language’ Of the-section itself;- bíit is made’perfectly clear by the proviso. ' lb neCessaiffiy — follow that the- construction Of the section contended •!f5rí'1by the4 *&é¿-*spondénts is.the .correct One,- and that the authorities ¿OP1 Holland had no -power.to grant the permits’applied for inlth.ib;Cd&e) at the time they.'were -proposing to .grant.the!i«atae,;:fo'rhtKe-1 réason that the court -found that the electors off' that'; toivn'^'did' not, by. an:;affirmative-.-vote at their ■ annuals-eleetioh^-in1--'the-1 spring of ,1904, authorize such permits .to ' be/granted..' - w* *&£■■&*

■'. The contention Of appellants, -therefore,1 thatj 'wheh^-Uil-affirmative vote has once been had 'the' town bbtt'rd' is ■authorized to .'continue to 'grant permits until a'.'contrary affirmative' vote is had; is not tenable. The view herd expressed is in ac-.: cord with the views of this court in the case of Hamm Brewing *8Co. v. Foss, 16 S. D. 162, 91 N. W. 584, in which this court said:. “Section 23 of the act relates exclusively to the granting of a license to sell intoxicating liquors at retail within the corporate limits of the various cities, towns, and townships of the state, and requires in each case, - as a positive condition prece-. dent, that the question, ‘Shall intoxicating liquors be sold' at-retail?’ be annually submitted to the voters of. such municipal corporation, and unless the majority is in favor of. such sale, no license can be granted.”

It is contended by the appellants that the construction of section 23 was not required in that case, and that, therefore,, that part of the opinion must be considered, as dicta and not binding upon the court. Possibly the case, might .have been decided without giving a construction to this section, but, upon a review of the question, we are of . the opinion that the construction given to the section in that case, was clearly correct.

It is further contended by the appellants that the construe-, tion of the section contended for by the respondents has the effect of making thelaw of 1897 a prohibition law,instead of a license law, and that the term “prohibition” is not used in the title to the act, and the act,is therefore unconstitutional; but this con-’, tention is not tenable, for the reason that all license laws are; in effect prohibitive, in that parties are required to comply with the conditions imposed by the law, and pay the license fee, be-fore they can legally acquire a permit to engage in the business to be licensed, and all parties, who fail to comply, with these conditions are in effect prohibí ted. from engaging, in. the same. And such, in fact, is the effect of our present license law. Until the officers are authorized to grant the permits by an affirmative vote of the electors at their annual election, and *9the applicant procures the requisite number, of signatures of electors to a petition requesting that such permits be' granted, executes and. files the prescribed bond, and the applicant is found to be a suitable person to engage in the business of' selling intoxicating liquors, he is not authorized to engage in the business. All these requirements constitute, conditions precedent, and must be complied with to authorize the party, to obtain a permit. Certain other conditions are required to be complied with in the conduct of the business, not now .necessary to be noticed.

. It is further contended by appellants that, under the eon- ■ struction of the act contended for by the respondents, it is unconstitutional, in that it delegates the power to. local cpmmu-nities to prohibit or authorize the sale of intoxicating- liquors.; But this contention is not tenable, for.the reason-that the law-in controversy is uniform in its operation throughout-the state, applies to.all persons, and does not leave,the question of -prohibiting the sale of.intoxicating liquors to the towns gnd cities,; as the law.itself does prohibit the. sale unless the required conditions are complied with, -Laws licensing and restricting the■ sale-of intoxicating liquors are quite generally held to be. within the police powers of the state, and the Legislature is authorized to exercise the power in such manner, and permit the. sale-upon such terms aud conditions, as.it may .deem proper.-- Mr. - Black, in his work on Intoxicating Liquors, in speaking , on this subject says: “A‘local option’law is a-,law framed- for the purpose of prohibiting, or severely restricting, the -sale of intoxicating liquors, under penalties, and containing. ■ a provision that the several counties, townships, or other divisions of the state'may hold elections to determine, by popular' vote *10whether they deaire the law to be in force in their limits, - and with a further provision, that in -each case where such election results in favor of the adoption of the law it shall take effect, in the district so voting, but that each district rejecting it shall continue to be governed in this respect by the existing laws. *u But the overwhelming preponderance of authority .is to the .effect that such a statute, if it is. a complete enactment in itself, requiring nothing further to give it validity, and depending upon the popular vote for nothing but a determination, of the territorial limits of its operation, is a valid and. constitutional exertion of the legislative power. ” Black on Intoxicating Liquors, § 45.. In section 46, that learned author further .says:. “In the exercise of its undoubted power to regulate the traffic in intoxicating liquors, the Legislature of a state may. lawfully provide a system for the granting of licenses to sell at retail, and may impose such restrictions and conditions upon the granting of such licenses, and as to' the. qualifications necessary to secure them, and may provide such, causes for the forfeiture and revocation of licenses, as it may deem necessary and proper ‘If the state has power to prohibit, it certainly has the power to regulate the traffic by determining who and what character of,persons shall be licensed to' deal in the article. : * * * Having full and complete control over .the subject, as an article of internal commerce, the state.,can,prescribe what conditions it may think proper upon which licenses can be obtained. It becomes simply a question of-degreeiof prohibition.’ ” The author cites a very large-number of authorities in support of the text, including the following: Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620; People v. Meyers, 95 N. Y. 223; Com. v. Dean, *11110 Mass. 357; State v. Wilcox, 42 Conn. 364, 19 Am. Rep. 536; Paul v. Gloucester County, 50 N. J. law 585, 15 Atl. 272, 1 L. R. A. 86; Anderson v. Com., 13 Bush. 485; Feek v. Bloomingdale, 82 Mich. 393, 47 N. W. 37, 10 L. R. A. 69; Territory v. O'Connor, 5 Dak. 397, 41 N. W. 746, 3 L. R. A. 355; Ex parte Lynn, 19 Tex. App. 293; State v. Parker, 26 Vt. 357.

These co~c1usio~is lead to the a ma~ace~ôf l~ judgg~ent of the rnrcuit court granting the writ of prohibition and the .. ,..S ~`S_S.~,•~ ~ S., JS( sawe.isafitrqie,d., ,~.S..,,., .~