Hollembaek v. Drake, No. 6293

No. 6293 | Neb. | Sep 26, 1893

Ryan, C.

On the 12th day of May, 1893, one of the plaintiffs in error, George C. Eerguson, filed with the. clerk of the board of trustees of-the' village of Odell the petition of thirty-four persons, asking that a license be granted to said Eerguson to sell spirituous, vinous, and malt liquors in said village for the municipal year ending April 30, 1894. A notice of the filing of said petition was published in a newspaper printed ánd published in said village, the first insertion being May 12, followed by another on the 19th of the same month, concluding with still another publication in the same newspaper the 26th of May, all in the year 1893. Section 2, chapter 50, Compiled Statutes of Nebraska, provides that “no action shall be taken upon said application until at least two weeks’ notice of the filing of the same has been given by publication in a newspaper published in said county,”' etc.

It seems that in this particular case another notice was also posted on May 24, calling attention to the application aforesaid and; fixing the 27th of May as the date when » hearing would be had. ' Contention is , made that thiá should be taken into consideration in some way, but why, is not clearly defined. The notice given in the. newspaper had been given for two weeks ’with the expiration of May 26. If no remonstrance was filed a license might have been granted on the 27th. There was, however, such a remonstrance filed on the 26th, and it came up for consideration on the 27th of May at 9 o’clock in the forenoon, the time fixed in the published notice. At this time the remonstrators were present by their counsel, and the further hearing was adjourned until 6 o’clock P. M., when it was again postponed until 7 o’clock P. M. There was at this time n hearing and argument, upon which the remonstrance was overruled and a license was granted.

It is now urged that no hearing could properly be had on the 27th, and this is insisted upon as having been settled in State v. Reynolds, 18 Neb., 431" court="Neb." date_filed="1885-07-15" href="https://app.midpage.ai/document/state-ex-rel-metcalf-v-reynolds-6644596?utm_source=webapp" opinion_id="6644596">18 Neb., 431. Between that case and the one under consideration there is a most marked difference. In the hearing before the council upon the application covered in State v. Reynolds, supra, the license was granted at the first meeting after the full notice had been given, without allowing an opportunity to remonstrators to adduce evidence. In this case evidence was heard, and upon this evidence and the argument of counsel the question of granting a license was considered and determined. There seems to have been acquiescence in this procedure by the remonstrators, and no objection raised as to the time of hearing until after the final decision adverse to the remonstrators. Had time for offering evidence in support of the averments of the remonstrance been asked, it would have been the duty of the board to have granted it, and to have fixed a reasonable time for the purpose. Indeed, it is doubtful whether less than an affirmative waiver of further time would relieve the village trustees of the duty of fixing ssch reasonable time in advance of the proposed hearing. After the two weeks’ notice had been given, however, the village board had jurisdiction to pass upon the application, in view of such remonstrance as may then have been filed. Until the expiration of the time specified for- giving notice it could not be known who might wish to resist the application. The time having fully expired, however, all possible adverse parties were before the board, whose duty it was to fix a time for trial. This time should have been reasonably sufficient to permit the production of evidence. What is a reasonable time of course depends upon circumstances, a hearing upon the same day with the first consideration of the remonstrance, ordinarily, not being deemed proper. Where, however, as in this case, the contesting parties appear after the board has acquired jurisdiction, and without objection voluntarily proceed to trial and the final determination of the question at issue before the village board, it is too late to complain of a premature hearing.

The remonstrance was based largely upon the averments that the applicant was not in good faith applying" on his ■own account, but to enable one Truxaw to operate a saloon in Odell; that by reason of the said Truxaw having violated the law the year before w'hen he had a license by selling liquor to minors and habitual drunkards, and to others on Sundays and on general election days, and by keeping a gambling house, that said Truxaw was disqualified to obtain a license in his own proper name for selling liquors for the municipal year ending April' 30, 1894, and that he had procured Ferguson to make the application with the object of himself operating a saloon in the name of Ferguson, and that, to that end, he had been largely instrumental in procuring signatures to the petition of Ferguson. Evidence directly competent to prove a material part of these allegations was tendered and rejected, upon what theory we are unable to conjecture. The same course was taken as to other averments of the remonstrance, though not with the same recklessness as upon the branch just referred to. In this trial there was, however, a sort of consistency toward both parties, for the board refused to hear any evidence that the proposed vendor of liquors was .a man of good moral character. The board seems, from its conduct, to have been elected as a license board, and each trustee appears to have assumed that the matter of granting a license had been settled in advance by his own election. It is a matter of serious regret that proceedings of this nature should assume such shape. At best, the liquor question-is one that seems almost incapable of a satisfactory solution. Absolute prohibition has been attempted by some states; one commonwealth, to effectively control the traffic, has itself monopolized it entirely. In this state, regulation is. sought by requiring that the business be conducted only by a person of respectable character and standing, backed by the petition of a majority of the resident freeholders of the precinct or village in which it is proposed to license the saloon, and held in check by a bond to observe faithfully the several provisions of the statute upon that subject. To the board of villages is entrusted ■ the duty of determining the existence of these necessary safeguards precedent to granting a license, and that duty should be performed with absolute impartiality to all parties concerned. The range of inquiry is very extensive, and all evidence competent to prove or disprove the applicant’s right to a license should be received, made a matter of record, and judicially considered by the village board. Whatever result may be reached, the evidence should appear so that a full and fair review may be had in the district court if either party feels aggrieved by the decision of the board. This cannot be done if competent testimony is arbitrarily excluded, and in such case the action of the village board should be reversed. In the case under consideration the course indicated as proper has not been pursued, and in view of this fact it is ordered that the judgment of the district court, and the decision of the village board of Odell, be and hereby are reversed, and that this cause be -remanded to the district court of Gage county., with directions to remand the same to said village board, with instructions to that body to hear the remonstrance anew, receiving the evidence offered by either party, after due notice of the time of hearing to both parties.

Reversed and remanded.

The other commissioners concur.