95 Neb. 184 | Neb. | 1914
Lead Opinion
The question to be determined is the validity of a license to sell intoxicating liquors in the city of Stanton. A. L. Hanff is licensee, and G. A. Enos and others are remonstrators. From the municipal action granting the license, remonstrators appealed to the district court, where the license was sustained. The record of the proceeding is now presented here for review by appeal from the district court.
It would be unusual for those who participated in the incorporation of the new company, or in the.transfer of the property of the old, to testify frankly in direct terms to an intention to violate the law. The transactions themselves must be scrutinized in the light of all of the circumstances, giving due weight to forms and to evidence of good- intentions. An issue presented by the remonstrance to the licensing tribunal required the determination of this question : Is the building in which the saloon is to be conducted controlled by a manufacturer of beer? That it was-so controlled before the passage of the Gibson act is admitted. The transfer of title did not change the busi
The judgment of the district court is reversed and the •cause remanded, with directions to cancel the license.
Reversed.
Dissenting Opinion
dissenting.
The principal question in this case would seem to he whether the license to sell liquor in the particular building mentioned was properly granted. Under the provisions of the act of 1907, known as the Gibson act (laws 1907, ch. 82), no license for the sale of liquors by retail may be granted by the corporate authorities of any city in a building owned or controlled by any manufacturer or wholesaler of intoxicating liquors. In this case the legal title of the lot and building described in the application for the license is vested in the Independent Realty Cbmpany. It is claimed that the Independent Realty Company is a holding company created by the Store Brewing Company, or those interested in that company,- and that the purpose of the conveyance to the Independent Realty Company was to avoid the provisions of the law and to defeat the purpose of the Gibson act. There was a trial in the district court for Stanton county and the judgment of that court was for the license. It should be remembered that in all cases of this character the findings of the district judge, who is generally acquainted in the neighborhood and has an opportunity to learn the character of those seeking the license, is entitled to careful consideration. It is contended that the evidence shows that just prior to the taking effect of the Gibson act the Store Brewing Company was the owner of a large amount of real estate located in the different towns, cities and villages of the state. It is also contended that a large part of this real property was occupied by retailers of intoxicating liquors who got their supplies’ from the brewing company.
Charles F. Weymuller, the secretary of the corporation, testified that the Store Brewing Company had no' contracts with their tenants which compelled the tenants to purchase the Store beer. He, however, is of the opinion that the. tenants were willing to take the products of the Store Brewing Company to the exclusion of other beers.
Section 7168, Ann. St. 1907, regulates the amount of proof required in an action to recover damages for injuries received while under tire influence of liquor. If less evidence is required to maintain such an action, it does not apply to this sort of a case.
In Davis v. Borland, 83 Neb. 281, it is said: “In an action against the vendors of intoxicating liquors to recover damages suffered from the acts of an intoxicated person, it is sufficient, under the provisions of section 7168, Ann. St. 1907, to plead and prove that the defendants sold or gave intoxicating liquors to the intoxicated person, from whose act the damage arose, on the day or about the time the injuries to the plaintiff were received. In such cases the statute by its terms supplies allegations and proofs required in other actions for damages.” In the instant case the statute supplies nothing. The case is to be tried as any other case is tried. “The burden of sustaining the affirmative of an issue involved in an action does not shift during the progress of the trial, but is upon the party alleging the facts constituting the issue, and remains there till the end.” Vertrees v. Gage County, 75 Neb. 332; Rapp v. Sarpy County, 71 Neb. 382. A corporation organized under the laws of this state which engages in a business forbidden by statute or unlawful as against public policy may be deprived of its charter and dissolved
It is undoubtedly true that, where tbe forms of corporations are made use of for tbe purpose of defeating tbe ends of justice, sucb forms will be disregarded. It is said in tbe argument for appellants that when tbe notion of legal identity is used to defeat public conveyance, justify wrong, protect fraud, or defend crime, tbe law will regard tbe corporation as an association of persons, and that where one corporation is organized and is owned by tbe officers and stockholders of another tbe interest between the two corporations becomes identical, and that they may be so considered if justice requires it. Mr. Storz’ wife appears to have been tbe principal owner of tbe stock in tbe realty company. It would not be strange if tbe realty company bad been organized expressly to enable it to avoid the conditions of the statute. At tbe same time we are not at liberty to jump to a conclusion not warranted by tbe evidence, and that conclusion should not be reached unless tbe evidence sustains it.
Mrs. Storz became tbe leading stockholder in the Independent Realty Company. Seven other stockholders held one share each in tbe company. Before the license should be denied to tbe building in question there should be evidence to establish tbe bad faith of tbe officers or manager of tbe Independent Realty Company. It is shown by tbe evidence that tbe keg beer sold in tbe building was Storz beer, but other kinds of beer were kept for sale. The other kinds were bottled beer. It is argued in tbe appellants’ brief that tbe interests of Gottlieb Storz and bis- wife in tbe brewery and in tbe realty company are essentially identical. Lusk v. Riggs, 65 Neb. 258, and Powell v. Morrill, 83 Neb. 119, are cited by counsel for tbe appellants to show that this court recognizes tbe identity of tbe interest which exists between a wife and her, husband in business matters. Lusk v. Riggs, supra, was a case where a debtor alleged to be in failing circumstances made a transfer of bis property to near relatives. It was held in sucb case that the burden of proving a
After a careful reading of the evidence, I am unable to reach the conclusion that any bad faith is established by the proof. It may be the fact that the realty company was organized for the purpose of taking over the real property of the Storz Brewing Company, but unless it was done with the further purpose of furnishing the Storz Brewing Company places in which to do business, and have their customers, then there is no violation of the law. I am unable to-reach the conclusion contained in the majority opinion, and regret that I am compelled to dissent.