8 Neb. 160 | Neb. | 1879
This record shows that a great deal of illegal testi-. mony was admitted on the trial against objection, duly made by the plaintiff in error. Of what this consisted will be apparent from what we shall hereafter say, without now particularizing.
The action in the court below was brought by the defendant in error to recover from the plaintiff in error certain moneys alleged to have been received on account of licenses issued by the corporate authorities for the sale of malt, spirituous, and vinous liquors, within the city of Hastings. The claim to a recovery of these moneys was based upon the third clause of sec. 572 of the Criminal Code, and the former decisions'of this court, to the effect that all such moneys belonged to the common school fund of the particular county in which they were collected, of which the county treasurer is the lawful custodian. City of Tecumseh v. Phillips, 5 Neb., 305. The State, ex rel. Noonan, v. The Mayor, etc., of Lincoln, 6 Neb., 12.
¥e have already decided during this term of the court in the case of the State, ex rel. Helmer, v. McConnel, ante page 28, that under the operation of Sec.
But with this constitutional rule in view how stands the case? Of all the moneys sued for, the evidence very clearly shows — in fact it is undisputed — that there was collected prior to the first day of November, 1875, only the sum of $867.50. Now whatever we may hold as to the effect of the act of the legislature, “ Approved, February 19,1877,” purporting to legalize the use and expenditure of these moneys by cities of the second class, this sum was all that the county treasurer was entitled to receive. All that was collected after that date belonged exclusively to the city for the support of its own public schools.
But the testimony further shows — and of this there is no dispute — that before the bringing of the suit there was paid to the county treasurer on account of the license moneys collected by the city of Hastings, the aggregate of $550.00, or $173.50 more than he was entitled to. The finding of the court below therefore ought to have been in favor of the city, and not being so, was clearly against the evidence and the law of the case.
As we have already shown, the constitution, Sec. 5,
The scope and evident effect of this section, if it be operative, are, to validate any previous disposition of such license moneys, if made for the benefit of such city or town, no matter what it might have been, while the only disposition permitted by the constitution is, “ to the support of common schools,” within the particular municipal subdivision in which the money is raised. Had the legislature the power to do this? Most clearly not. That body can legalize no act which they could not have authorized before it was done. In other words, they cannot validate that which the constitution either in express terms or by necessary impli
Such being the character of this legislation, there can be no doubt whatever of its repugnance to the constitution, and it becomes our duty, therefore, to pronounce it a void act.
The judgment must be reversed, and the cause remanded to the court below for a new trial.
Reversed and remanded.