84 Neb. 565 | Neb. | 1909
Plaintiff commenced his suit in the district court for Antelope county, seeking an injunction against the mayor, police judge, city attorney and city marshal of the city of Neligli. The petition is of great length, and contains many averments in support of which no evidence was offered upon the trial. It is alleged that plaintiff is a druggist in said city, and, in connection with his drug business, deals in cigars, soda water and ice cream. The mayor and council of said city passed certain ordinances prohibiting the desecration of the Sabbath and the engaging in certain lines of business within the city on that day. In the pleadings and testimony of the witnesses, mention is made of an ordinance referred to as “No. 70,” but, as there is no copy of said ordinance in the record, no further reference need be made to it, except to say that it will be presumed that the ordinance and all proceedings had under it were regular and legal. Ordinance number 92 is set out in the petition, and is admitted to be correctly copied, and in force. This ordinance is in the usual form of those adopted prohibiting persons from engaging in business on the Sabbath, but excepts from its provisions physicians, hotels, railroad offices, telephone offices, trains, livery stables, drug stores and restaurants for necessary purposes, .vendors of ice, bread and milk. There is a provision in the ordinance that “drug stores may open only when called upon for the sale of medicines or surgical apparatus, when necessary, and it shall be unlawful for such drug store to sell any ice cream, soda water, cigars, malt, spirituous or vinous liquors, or other commodities other than medicines or surgical apparatus, or to be open and allow persons to congregate therein upon said day.” It is alleged that the officers of the city, the defendants,' have conspired together to cause his place of business to be watched, his customers to be persuaded to keep away from his drug store on the day named, and, in effect, that a condition of espionage has been main
Answers were filed by Williams, the city attorney, and McAllister, the police judge, but no answer by the mayor or city marshal appears in the transcript. The term of office of the city marshal having expired, he seems to have dropped out of the case. The answers filed admit the official character of the answering defendants; that plaintiff was a druggist; that the other parties named in the petition as hotel and restaurant keepers were engaged in business as alleged; the passage of the ordinance named; the filing of the complaints against plaintiff, the proceedings thereunder substantially as alleged and shown by exhibits; and deny all other allegations. A trial was had which resulted in the dismissal of the case against Jenkins, the mayor, and finding “that the defendants Otis A. Williams, city attorney, and John McAllister, police judge, threaten to cause execution to issue and be levied upon the property of plaintiff to enforce the payment of said fines as alleged in the petition, and finds for the defendants upon all other matters in issue.” The injunction was made perpetual as to Williams, city attorney, and Mc-Allister, police judge, and the costs were taxed against them. From this they appeal. No brief has been filed by plaintiff, appellee.
Since the finding of the court was in favor of the defendants upon all issues except the one named, we conclude
Section 72, art. I, ch. 14, Comp. St. 1907, being in the charter for cities of the second class and villages, provides: “Fines may in all cases, and in addition to any other mode provided, be recovered by suit or action before a justice of the peace, or other court of competent jurisdiction, in the name of the state. And in any such suit or action where pleading is necessary, it shall be sufficient to declare generally for the amount claimed to be due in respect to the violation of the ordinance, referring to its title and the date of its adoption or passage, and showing as near as may be the facts of the alleged violation.” In Peterson v. State, 79 Neb. 132, at page 142, after copying this section, we said: “From this it will be seen that the legislature contemplated a civil action for the recovery of a fine imposed for the violation of an ordinance, and in such case clear and satisfactory proof of the violation would certainly be sufficient to warrant a recovery.” Section 30 of the same chapter of the statute provides that execution may issue against the sureties where a judgment is replevied or stayed for 90 days, as in the section provided, if the fine is not paid at the expiration of said time. There is an intimation 'that
It follows that the judgment of the district court will have to be reversed and the action dismissed, which is done.
Beversed and dismissed.