(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 *204fee 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.
*205The judgment and order appealed friom; should therefore be affidmed.
SMITH, J., concurs in the views of GATES, J.