Babbitt v. Alger

141 N.W. 915, 160 Iowa 361

Opinion

Evans, J.

No controversy of fact is presented. The ground of refusal to issue an injunction was that the city of Davenport was a “special charter” city, and that the “Moon Law” had no application to cities under special charters. The Moon Law was enacted as chapter 142 oí the 33d General Assembly. It became effective April 15, 1909. This statute purported to limit the authority of city councils to issue saloon licenses in excess of one for every 1,000 inhabitants of the city. At the time of the issuance of the license to the defendant Davenport had 43,000 inhabitants. More than forty-three licenses had been issued prior to that of the defendant. If the statute was applicable to cities acting under special charters, then defendant’s license was illegally issued. If such was not applicable to cities acting under special charters, then the issuance of the license was legal. Since this case was heard in the court below the last General Assembly enacted a further statute, applying specifically to cities under special charters, and applying the Moon Law to special charter cities upon a graduated scale of elimination. We shall have first to consider the effect of this statute upon the present proceeding.

The briefs of counsel were prepared before the later legislation referred to. Because of such later legislation (chapter —, 35th General Assembly), it becomes useless for us to consider the particular questions presented in the briefs.

1. Statutes: legislative in terpretetion: effect. Under this later enactment the Moon Law is amended and is made applicable to special charter cities after July 1, 1913, in a qualified way. We need not deal with the details of the qualification. In such enactment, the Legisl&ture bas assumed to construe the Moon Law, in its original form, as not applicable to special charter cities. Manifestly, we are not bound by the mere construction which one. Legislature may put upon the enactments of a previous Legislature. But the validity of the later enactment is not thereby impaired. The effect-of this, later legislation is to legalize at the present time saloon licenses in special charter cities to a greater number than one to 1,000 inhabitants. Under this legislation the defendants’ license is now legal.

2. Intoxicating liquors: limitation of number of saloons: injunction. Tbe remedy sought in the present proceeding is prospective only. It does not involve punishment for past offenses, if any. It seeks only to enjoin the future operation of the saloon on the theory of its illegal-and that its maintenance will therefore constitute a nuisance. To now grant the relief prayed would be to enjoin as illegal that which is now and henceforth legal under the recent legislation. In view of the situation thus created, the only appropriate procedure left to us is to dismiss the appeal; The question of costs may be presented to us later by a proper motion.

For the reasons indicated the appeal is Dismissed.