
    GOODER, Respondent, v. RUDD et al., Appellants.
    (160 N. W. 808.)
    (File No. 4041.
    Opinion filed December 30, 1916.)
    1. Intoxicating Liquors — Local Option Election — Petition—Number of Free-holders, Insufficiency — “Special Election” — Statute.
    An election for decision of question whether a liquor license is to he granted is a “special election,” and statutory requirer-ments must be strictly complied with; hence, under Daws 1913, Chap. 254, as amended hy Laws 1915, Chap. 227, requiring, as a condition to the voting, that a petition signed hy 25 legal voters, eacito of whom must own at least an acre of land in the township, a petition signed hy 25 legal voters, only IS of whom were owners of an acre of ground, was invalid, and the election held pursuant thereto was void, the officers being without jurisdiction to hold such election; and such election furnishes no authority to issue licenses or permits to sell intoxicants.
    2. Elections — Liquor License Election — Contest of Election, Whether Remedy Exclusive.
    The proceedings for contesting elections, provided for by Pol. Code, Secs. 1988-2000, inclusive, do not constitute an exclusive remedy for attaching the election, in view of Sec. 1898, providing that the article shall not affect any remedy or rigibts of action provided for in Code Civ. Proc.
    
      3. Injunctions — Attacking Liquor License Election — Remedy at Law — Injunction as Remedy.
    Pol. Code, Secs. 1988, 1997, and 1999, 2000, inclusive, .providing for election contests, and Sec. 1998, providing that the Article shall not affect any remedies or rights provided for in Code Civ, Proc., do not provide a plain, speedy and adequate remedy at law; and, where a liquor license election was invalid, because of an insufficient petition, and' the election was held without authority or jurisdiction on the part of township officers, plaintiff, a citizen and taxpayer, could bring suit for an injunction restraining the township treasurer from accepting the statutory saloon license from defendants, or on the ground tihere had been no election authorizing such liquor saies.
    4. Elections — Liquor License Election — Petition, Sufficiency of as to' Eree-holders.
    A petition for a liquor license election, which recites that each of the subscribers owns legal title “to an undivided share or interest in at least one entire lot or parcel of ground * * * of the size commonly recognized as a full lot in said Orient Township” fails to show that any of the. petitioners were qualified to sign the petition, in view of Laws 1913, 'Chap. 254, as amended by Laws 1915, Chap. 257, requiring that such ■petitioners must each be owner of at least an -acre of ground.
    Gates, J., and Smith, J., concurring specially.
    Appeal from ¡Circuit Count. Faulk 'County. Hon." Joseph H. Bottum, Judge.
    ■Suit by Albert Goodlier, a taxpayer, etc., against Walter Rudd and1 others, as the Board of Super visions of Faulk. County, and others, to enjoin certain defendants from accepting the statutory saloon license from the defendants seeking- to become licensees, and1 for other relief.
    From a judgment 'Cancelling license or permit issued by defendant Township’ Board, defendants appeal.
    Affirmed.
    
      W. J. Jacobs, and B. B. Harkin, for Appellants.
    
      Frank Turner, and P. B. Snider, for Respondent.
    (1) To point one of tlhe opinion, Respondent cited: Cyc. Vdl. 15, pp. 316-317, 3x9; Sioux Falls'' Electric Light & Power Coriipany v. 'City, 21 S-. D. 18, 108 N. W. 488; 10 A. & E. Ency. of Law 562 ; Whorfon v. Barger, (S. D.) 153 N. W. 961: State v. Mcllvennia, 21 £>. D. .489,
    (2) To point two1 of the opinion, Appellants cited: Pol. ■Code, Secs. 1988-1996; Treat v. Morris, 25 S. D. 615; Shaw v. Circuit 'Court, 27 S. D. 49; Marston v. Hariocker, (Ore.) 85 Pac. 331;. Pomeroy on Eq. Ju-r., V'oi. 5, Art. 333; Robinson & Watson) v. Wingate, 80 S'. W. 1069 (Tex.) ; High on Injunction, Sec. 1245; Dickey’s case, 78 Ill. 261; Bismarck Water Supply :Co. v. Barnes, (N. D.) 153 'N. W. 454, and cases cited; y Ruling1 Case Law, 1157; Gordon v. White, 33 S. D. 234; State ex rel. Oormick v.- Ramsey, (S'. D.) 130 N. W. 768; 15 -Cyc. 399-400; 23 Cyc. 101; Vol. 30 A. & E. Ann. Cases (1913E) ip. 982.
    (3) To point three of <the opinion, Appellants cited: Mak-ert v. Sumter Go., 60 Ela. 328, 53 So. 613, 1912 C. Ann.-Cas. 690, and note; and' see, cases cited -to point two.
    Appellants submitted that: If contestants after starting their election contest, had feared that prior to final determination of such election contest certain acts would have been done which would render the final determination of the contest unavailing, they could have applied to the court for an injunction until the result of the contest had been determined; and cited: Shaw v. 'Circuit Court Handiin- County, 27 S. D. 49, 63.
    15 Cyc. 397; Holmes v. Langston, (Ga.) 36 S. E. 247; Village of Morgan Park v. City of Chicago, (Ill.) 99 N. E. 388; Wells v. City of Sioux Falls, 16 S. D. 547; Spangler v. City of Mitchell, 152 N. W. 339 (S. D.) ; Hughes v. Hill, 30 S. D. 255; State ex red. 'Crothers v. Barber, 19 S. D. 1; State ex rel. D-ollard v. Board, 1 S, D. 292; State ex rel. Cain v. Toomey, 27 S. D. 37: -State ex rel Cook v. Board oif Commissioners, 29 S. D. 358.
   POLLEY, P. J.

This action was brought for the- purpose of having a certain election, held' in the township of Orient on the 7th clay of March, 1916, declared void.

The tow-ns'hip of Orient is a civil township in Faulk county,, and has a regularly elected board icf -township supervisors, a clerk and a treasurer. Within the limits o-f said township is the platted town, or village, of Orient, having.a population -of about 220 inhabitants. On or about the 5th day of February, 1916, 4here was filed in the -office -of the clerk of said t-ownshipi a petition, reques-tiong the board of -supervisors of said- township -to submit to the legal voters of -said township, at an election to ■be held on the 7th day of March, 1916, the question, “Shall intoxicating liquors- 'be sold- at retail within, the corporate limits of said Orient township?” Said petition bore the signatures of 28 signers, all legad voters residing in said township'. Eighteen of said signers resided without the 'boundaries of the said platted town of Orient, and each owned land to the extent of one acre or more. The other 10 signers resided within the platted town of Orient, and each owned land to' the extent of one full platted lot, but less than an acre in extent. Thereafter the tO'\yn clerk gave the requisite notice of election, and, on the 7th day of March, a .purported election was held, at which the liquior license question was submitted to the voters of said township. It is conceded that a majority of the voters of the township voted- in favor of license. After the canvass of the said vote, the defendants Kelly and Bigler applied to the hoard of supervisors of said township for permits to sell intoxicating liquor, which said permits were granted by said board. Said 'defendants then filed their bonds, as required by law, with the board of county commissioners of Baulk county, which bond's were approved by said board, and said defendants paid the sum required for a county license to the treasurer of said county.

No- contest of this election was instituted within the 20 days allowed by law for that purpose, or at all; but after the expiration of more than 20 days after said election this action was commenced. Upon the trial a decree was entered, adjudging the permit issue by the board of supervisors of said township to be wholly void and of no effect whatever. It. also enjoined the defendant Gardner, as treasurer of said1 township, from1 receiving, any license money from the defendants Kelly and Bigler and from issuing to- either of them a receipt therefbr.

Plaintiff bases his right to' the relief sought upon the sole ground that the petition, asking for a vote upon the license question, was not signed by the requisite number of qualified signers. An election to decide whether a liquor license is to- be granted at a certain plate is a special election (Whorton v. Bager, 36 S. D. 167, 133 N. W. 961), and the statutory requirements must be strictly complied with (Whorton v. Bager, supra; Gordon v. White, 33 S. D. 439, 145 N. W. 439; Krakowski v. Waskey, 33 S. D. 335, 145 N. W. 566; Olson v. City of Lemmon, 33 S. D. 380, 146 N. W. 592). Chapter 254, Laws of 1913, as amended 'by chapter 227, Laws of T9T5, provides that, befare a vote can be had in a -township upon ¡the question- of issuing; liquor licenses, a- petition, asking that such -question be submitted to -the voters of the township', m-ust foe filed with the clerk of such township, which' said petition m-ust be signed foy 25 legal voters, each lo-f which- must foe the owners- of at least an acre of land in such township'. As but 18 -of the signers who signed the petition -involved in this -case- were the owners -of an acre of ground, the said petition did not comply with the provisions- of the -statute, and was therefore vlo-id for any purpose. The fact that 10 of the signers- lived in the platted town or village of Orient is wholly -immaterial. Said- town- of Orient was not incorporated, and the fact that a portion of the inhabitants of such town-ship lived ion -a 'platted- town site did1 not -change their legal status in any manner. The entire proceeding was a township proceeding, and -must be -governed -by the law applicable to- townships. The petition, asking -that a vote foe taken upon the license question, is ¡the -only authority the officials- of a city, town, or -town-ship have for the holding of such an election, and where there -is no petition, -or where the petition filed is insufficient in law (.which- -amounts to1 the same thing; as- no petition at all), such -officials are without any jurisdiction to hold such an election; and such election, if held, together with1 all proceeding's had thereunder or pursuant thereto-, are- wholly void. Such an election furnishes no -authority to ¡the board of county -commissioners, a city council, or a township- board of supervisors to issue licenses or permits to sell intoxicating liquors.

But it is contended- by appellants- that plaintiff has not pursued -tire -proper remedy; that the proceedings1 for contesting an election provided for foy sections 1988-2000, inclusive, is an exclusive -remedy, and, the plaintiff having failed to proceed in-the manner pointed out foy those sections of the statute, within the time limited- -therein-, has precluded himself from questioning the validity -of said election. With this 'contention we do not agree. The said1 statute providing fo-r election -contests not only does not purport to -provide -an- exclusive -remedy in all cases, but it appears: affirmatively from section 1998 that said remedy is not exclusive. Said section- reads as follows:

“This article shall not he -construed -to- affect any of the remedies or rights of action or -proceedings provided for in the Code of Civil Procedure.”

But the specific contention of appellant is that sections 1988-2000 afforded plaintiff a plain, speedy, and adequate remedy at law, by election contest, and by which the validity of such election might have been determined, and that, under such circumstances, plaintiff cannot legally invoke the aid' of a court of equity. This conclusion does not necessarily follow. What might be the result, in this respect, in a case where the petition was upon its face sufficient to authorize the township officers to take a vote upon the question of issuing liquor licenses it is not necessary to- determine, and we express no* opinion thereon. The question to be determined is mot merely what was the result of the election, hut whether an election upon the question of issuing liquor licenses could be legally held at that time. In this case, ■the petition was insufficient on its face to' authorize the holding of any election at'ail. The said petition, after reciting that the petitioners are qualified vlcters of the township’ of Orient, and that a vote is desired1 in said Orient township upon the question of issuing- licenses, contains the following paragraph:

"The undersigned further certify, each for himself, that ha owns the legal title to an undivided share or interest in at least one entire lot or parcel of ground 'within said Orient township', which, lot or parcel of ground is of the size -commonly recognized as a full lot in said Orient township as shown by the official plat of said Orient township, together with the improvements thereon; that his said interest in such lot or parcel of ground is of the assessed valuation of at least $25, as shown bjr the returns of the last assessment previous to the signing- of this petition; that he has been such freeholder for at least one year and a qualified voter of said Orient township- for at least one year prior to the yth day of March, 1916.”

From this it does not appear that any of the petitioners were qualified to sign said petition. In fact it appears, by inference at least, that none of said1 petitioners owned land equal to an acre in extent. The petition is therefore insufficient upon its face to- authorize the holding of said' election, and all parties' concerned were notified thereby -that there was no- authority for holding the said election.

The township' -officials being-; without jurisdiction to call or ho-ld the said election, the legal situation is the same as if no election at all had1'been ¡held It -was therefore proper, for the plaintiff to proceed' as though no. election 'had' in fact been held, and apply for a.n injunction, not for the direct purpose of declaring such election void, but for the purpose of restraining the township -treasurer from accepting- the statutory saloon license fee from defendants Kelly and Bigler .'oar the ground that there had! been mol election authorizing such sale.

If it were a case' where the regularity of the election were questioned, such as the qualification of voters or the correctness of the count, then there would -be much force in appellants’ contention, -but in- this state there is no law authorizing the officials of a city, town, or township- to -submit the question of granting liquor licenses to the voters, as was done in this case, until a petition is filed1 signed by a specified- number of signers, each-of whom is possessed of the qualifications- specified by statute. Without this petition the officials of a municipal corporation have-no more authority to submit the question -o-f granting liquor licenses to the voters at the time of the regular municipal election -than they would have to call an election- and submit such-question to- the voters at any -other -time -in the year; and a vote on said question -at the regular municipal election, but without the -sai-d -petition having been filed, -would- -confer no more author t ity upon such official's' to- grant liquor licenses than an- unauthorized v-o-te upon -sai-d' question taken on- any other day -in the year. The election having been- held without any authority -or jurisdiction on the part -of' the defendants, -the plaintiff had a right to treat such election as an absolute nullity, and the trial court was warranted in granting equitable- -relief b-as-ed! upon the fact that the election was invalid.-

The judgment appealed from is affirmed.

GATES, J.

(concurring specially). Without -disagreeing with the determination that the election was; wholly void-, I, believe the- question as- -to- whether injunction was a proper remedy should he solved o-n other grounds. I -think it unnecessary to make the distinction sought to be made between a petition for an election -that is void o-n its face and one that is vo-i-d for some latent -defect. By the provisions -of sections 2858 and 2854, Pol. Code, as -amended-, it is- clearly unlawful for a person having a -county license to- sell intoxicating liquor unless a license fee is also paid to, and' permit granted by, the city, town, or township, which latter fee must (be $200, and may be anywhere up to $600. A license granted by the county is 'dependent for its validity upon compliance with section 2856, Pol. Code, as amended. A permit from a township is dependent on the license from the county; therefore, if there is no valid election, there is no authority in the county to issue a license, no authority in the township to issue a permit, arid no authority in the township treasurer -to receive the township' fee and issue a receipt. -While the granting of a permit 'by the township board1 is one of the steps necessary, the last and ultimate step is the payment of the license fee to the treasurer, and' the business cannot be transacted until such payment is made.

The plaintiff delayed the bringing of this action until after the township had' ‘granted the permit, 'but he began it before the applicants had paid the license fee to the township, treasurer, and be obtained a judgment, restraining the township, -treasurer from receiving the township license fee from the applicants. In Weatherer v. Herron, 25 S. D. 208, 126 N. W. 244, this court said:

“We are of the opinion that for the same reason any taxpayer or elector might, in a proper case, maintain an injunction proceeding restraining* a public officer from the performance of an illegal act.”

I think this is one of the proper cases implied in the foregoing quotation. The matter of the sale of intoxicating liquors is- a public matter. This plaintiff would not have as speedy a remedy in -the ordinary course of law as he would- by injunction. 22 Cyc. 769-771. The receiving of the money by the township treasurer .would' be clearly illegal and the issuance of a receipt therefor would be clearly illegal.

I, therefore, think that the judgment should be affirmed in so far as it enjoins the township1 treasurer from, receiving' the license money and frota issuing a receipt therefor. Inasmuch as the applicants may not engage in the business without paying' the license fee, it follows that the portion of the judgment which cancels- the license or permit issued by the township -board', and which- enjoins the applicants' from- doing- business, cannot -be prejudicial to- any rights of appellants.

The judgment and order appealed friom; should therefore be affidmed.

SMITH, J., concurs in the views of GATES, J.  