Ottumwa tri-weekly courier. [volume] (Ottumwa, Iowa) 1903-1916, 1909-05-13

voting at the last election preceding
its filing This statement of general
consent, followed by compliance with
the other provisions Of the law, oper-
ated as bar, to prosecutions for the
sale of intoxicating liquor. And this
bar continued to protect one who sold
liquors in strict conformity to the re-
quirements of the law until it was re-
moved in some OF the ways provided
by statute.
Section 2451 of the code points out
how that protection may be lost and
among other things, provides: When
ever there shall be filed with the coun-
ty auditor verified petition signed by
a majority of the voters of the said
city as shown by the last general
election, requesting it, then the bar
to proceedings as provided in the sec
ond and third preceding sections
shall cease to operate and the persons
engaged in the sale Of intoxicating
liquors shall be liable to all Of the pen
alties provided in this chapter" On
December %, 1908, there was filed with
the auditor of Wapello county YER
flied petition purporting to be signed
by a majority of the voters of the city
of Ottumwa as shown by the last cleo
ton requesting, in substance, that the
previously given consent to the sale of
liquors be revoked and the bar to pro-
ceedings under the general prohibitory
law be removed. This document has
been referred to, throughout the trial
as the revocation petition" and will
generally be designated in that way
here. The above entitled actions are
brought in equity to senioin the de-
PENDANTS from selling Intoxicating
liquors or maintaining places for that
purpose and to abate such places as
nuisances: and the relief is asked up
on the theory that the, bar to prosecu-
tions previously existing was removed
on the filing Of the revocation petit
ton, Temporary injunctions are ask
ed and by agreement OF all parties, the
applications therefor in all three cases
were heard together on the same evil
dence, so far as applicable. The de-
PENDANTS admit they are operating
saloons and claim to be still protected
from prosecution by the original state
ment of general consent upon the
theory that the revocation petition is
not signed by the requisite number Of
voters.
The Principal Question.
The sufficiency of the revocation pc
tition is, therefore, the @rinciple
question involved If it is sufficient
the bar to prosecutions for the sale
of liquors ceased to operate upon its
filing and the defendants should be re-
strained by temporary injunctions
from further selling. McConkie VS.
Remley, 119 la. 512. On the other
hand if it is insufficient, the defend
ants cannot be enjoined if they have,
in other respects, complied with the
law In the operation of their saloons.
The hearing has been conducted with
great thoroughness and care by all
parties interested, and many questions
of both fact and law have been
argued at considerable length. While
in my opinion the cases must turn on
a very simple and fundamental prop
osition, the importance of the ultimate
question of whether saloons may be
operated in Ottumwa and the careful
and exhaustive way in which the cases
have been presented will justify a
somewhat extended consideration of
the pivotal question 1t is one that
goes directly to the sufficiency Of the
revocation petition and its solution, is
determinative Of all the issues arising
on the petition. Briefly, it is this:
Can there be counted on the revoca
ton petition the names of those who
were entitled to but did not vote at
the last general election, or only the
names of those who actually voted?
The statute quoted above requires
the revocation to be signed by ma
jority of the voters of said city as
shown by the last general election.
Counsel for Mills and for the defend
ant reach widely different conclusions
as to the meaning of this statute. The
former contend that revocation petit
ton signed by persons who are en-
titled TO vote, in numbers equalling
a majority of those who did not, is
sufficient irrespective of whether the
signers actually voted or not. Counsel
for the defendants insist the petition
must be signed by a sufficient number
of those actually voting to constitute
a majority of those voting.
In Regard to Voter"
Much has been said in argument
about the proper definition Of the
word "voter," whether it means one
who has voted, or one who is entitled
to vote. The word may be and fire.
quently is, used in either sense 1t has
often been used in the statutes of the
state to indicate one entitled to vote.
AS used here it might, if unqualified,
be very properly given that meaning.
The meaning of the section is not,
however, to be determined from the