98 Neb. 245 | Neb. | 1915
Lead Opinion
After our former opinion in this case (95 Neb. 184), a reargument was ordered upon the following propositions: First, Who has the burden of proof as to the good faith of the organization of the realty company and Mrs. Storz’ ownership of the stock? Second, Is the question involved in this case analogous to a transfer between relatives when creditors are interested? Additional briefs have been presented and argument had upon these propositions both in behalf of the parties themselves and in behalf of the Independent Realty Company. The facts necessary to an understanding of the questions presented are sufficiently stated in our former opinion.
It is suggested that the statute of frauds (Rev. St. 3913, sec. 2643), relates only to transfers to defraud creditors. The statutes of the different states vary considerably in the terms used. They are, of course, suggested by, if not mod
The transaction in this case, conveying this property to the corporation and issuing substantially all of the stock in the new corporation to Mrs. Storz when Mr. Storz himself held substantially all of the stock in the other corporation, would be regarded in an action by creditors of Mr. Storz to subject this stock to the payment of his debts as though his stock held in the name of Mr. Storz had been by him transferred to his wife. This precise point was decided by this court in Lusk v. Riggs, 65 Neb. 258, 70 Neb. 713. If this transaction was intended to result in delaying creditors of the Storz Brewing Company and Mrs. Storz took the stock with knowledge of that fact, there is of course no doubt that it would be held to be void as against such creditors.
If the Storz Brewing Company organized or promoted this company and transferred this property for the purpose
The court then stated some of the constitutional questions which might arise from the foregoing considerations, and did not find it necessary to determine them. Two of the constitutional questions that necessarily arose from the construction and application of the statute are then stated by the court and thought to be of such importance as to require the court to so construe the statute, if possible, as to avoid such constitutional questions. We think that similar considerations require us to examine the statute in question very closely in ascertaining the intention of the legislature. It will be seen from the facts stated in our former opinion that the question is of far-reaching importance to the Independent Realty Company. These properties in different parts of the state, valued at several hundred thousands of dollars, were, before the enactment of this statute, rented to saloon keepers, and saloons were being operated in them. They were in many instances constructed for that purpose and were not adapted to any other. The statute was in force within 90 days after it was enacted, and imposed very severe penalties upon the
Section 5 of the act (Laws 1907, ch. 82) makes it unlawful for any person “to lease, occupy or use . * * * any building * * * owned or controlled by any * * * corporation * * * engaged in the manufacture” of liquors. The Independent Realty Company was not engaged in the manufacture of liquors. Whatever may have been the motives of those in control of the Storz Brewing Company in organizing the Independent Realty Company and transferring property, it does not necessarily follow that this applicant participated in those motives. He apparently had no means of knowing as to the organization of these companies and what the motives of their promoters may have been. Questions of fraudulent conveyance of property are generally investigated by courts which are clothed with ample equity powers. They are usually complicated and difficult questions. The construction of the statute contended for by the remonstrants would imply that the legislature intended that the applicant for saloon license must determine the question of the good faith of the organizers of these companies at his peril, and, if he made a
The objection that the “location of this saloon building in the city of Stanton in itself was such as, considered with reference to the business, constituted a business nuisance” is answered in Fraser v. Hunter, 96 Neb. 134, where it was held: “The determination of the locality in which a saloon may be conducted is one which is committed to .the good judgment of the licensing body, and not to the discretion of the courts.”
It is objected that “no proper liquor bond appears to have been offered to and approved by the mayor and council.” It will be seen that the objection is not that no liquor bond was offered and approved, but that no “proper” bond was offered. It is conceded that a bond was tendered, signed by the American Surety Company, and the real contention seems to be: First, that the applicant did not furnish proof that executing saloon keepers’ bonds was within the powers conferred upon the company by its charter; and, second, that it is not shown that the surety company is authorized to do business in the state of Nebraska. In Lambert v. Stevens, 29 Neb. 283, 287, it was said: “When the remonstrance denies any matter necessary to confer jurisdiction upon the granting power, as that certain signers to the petition are freeholders, the burden is on the applicant to establish that they are qualified petitioners. Where the remonstrance sets up new matter, such as that certain- signers to the petition were made freeholders for the purpose of signing the same, or that the applicant has been guilty of a violation of any provisions of the liquor law within a year, or that any former license
The applicant was questioned in regard to violation of the law by him and declined to answer. It is argued from this that he has conceded that he was not a man of good moral character, but this conclusion does not follow. The evidence shows that the applicant had never engaged in the saloon business prior to the time of making this application ; that he was 59 years old, was a retired farmer, had resided in Stanton county since 1874, and had held the offices of precinct assessor and county assessor of Stanton county. At the hearing he introduced as witnesses the county judge of the county, who had known him since 1906, Chris Selle, who had known him for 40 years, and H. D. Miller, vice-president of the First National Bank of Stanton, who had known him for 20 years, all of whom testified as to his good character and standing in the community. It is clear that this assignment is without merit. Shank v. Lee, 90 Neb. 732; In re Phillips, 93 Neb. 152.
It is urged that, assuming that ordinance No. 94 and the law of 1897, under which it was passed, are valid and all proceedings of the mayor and council “up to and including the adoption of the order granting license in this case, still, under the plain provision of the 'Act of 1897,’ the action of the council directing that the license issue and the action of the district court directing that the license issue 'forthwith’ were both premature and erroneous.” The order of the licensing board granting the license is not an ordinance as defined in sec. 5227, Rev. St. 1913. It does not have “the force and effect of law.” The provision of section 5237, Rev. St. 1913, that “no ordinance for the government of any city * * * shall go into effect until thirty days after the passage of the same” does not apply. An ordinance regulating the licensing of the sale of liquors must be enacted before such license can be granted, and .the adoption or rejection of such an ordinance is within the initiative and referendum act.
If section 10 of the act (Laws 1897, ch. 32) is incapable of a construction in harmony with section 22, art I of the Constitution, which we do not decide, it may be disregarded without invalidating the whole act.
Our former judgment is vacated, and the judgment of the district court is
Affirmed.
Concurrence Opinion
concurring.
It is stated in the majority opinion, in substance, that we ought not to assume that, in enacting the so-called Gibson act, thé legislature intended that it should be so construed as to result in the confiscation of the vast amount of property which at one time was owned by the brewing company, if such construction can reasonably be avoided. As I understand the question, such would be the effect of the act if we should hold that the licensing board had the power and was required to determine the rights of the Independent Eealty Company to own, hold and control such real estate. This question is a judicial one, and should be determined by a court of equity in a case brought directly for that purpose, and in which the Independent Eealty Company is a party. This question should not be decided by an administrative body, such as a city council or village board. It is shown by the record that the title to the realty once owned by the Storz Brewing Company is now of record in the Independent Eealty Company. It is regular and fair upon its face. Its title has not been assailed by the state in any proceeding in a court having jurisdiction to determine the bona fides of its title. As I under
I therefore concur in the majority opinion.
Dissenting Opinion
dissenting.
The controlling question presented by the record is very simple, and its proper solution is free from difficulty. Can a village board issue a valid license authorizing the sale of intoxicating liquors in a building controlled by a manufacturer of beer? The statute says, “No,” in language too plain for misinterpretation or misconstruction. Rev. St. 1913, sec. 3892. The power of the legislature to pass such a law and to make it applicable to present owners of property devoted to saloon purposes has been affirmed by the supreme court of the United States as follows: “Lawful state legislation, in the exercise of the police powers of the state, to prohibit the manufacture and sale within the state of spirituous, malt, vinous, fermented, or other intoxicating liquors, to be used as a beverage, may be enforced against persons who, at the time, happen to own property whose chief value consists in' its fitness for such
The arm of sovereignty created by law to withhold from an applicant a license to sell intoxicating liquors in a building controlled by a manufacturer of beer is the licensing board. Contrary to the pronouncement of the majority, the legislature has in unmistakable terms clothed that board with the machinery and the power to investigate and determine whether a proposed site for a saloon is owned or controlled by a brewer. If the licensing board makes a mistake in exercising such authority, the courts may correct it by means of an appeal. Rev. St. 1913, ch. 40. In the present case, under rules of evidence recognized by the courts of Christendom, it is shown that the licensing board, in violation of law, granted an illegal license to conduct a saloon in a building controlled by a manufacturer of beer. The legislature had power to authorize the licensing board to investigate and determine the ownership or control of a building for the purpose of granting or refusing a saloon-keeper’s license. In passing upon the sufficiency of a petition for a license to sell intoxicating liquors, the licensing boards, under legislative power recognized by this court, have, for many years, investigated and passed upon the petitioner’s title to real estate. Administrative bodies like the county board, the state board of irrigation and the state railway commission are now performing duties which affect property rights. The former judgment pronounced by this court would enforce the statute as written. The evidence is correctly stated and the law is properly applied in the first opinion. The license was canceled according to both the spirit and the letter of the statute. Enos v. Hanff, 95 Neb. 184. For these reasons, I adhere to the former decision, and dissent from that of the majority.