Marica v. Yost

85 Neb. 842 | Neb. | 1910

Rose,, J.

The trustees of the village of Benedict, granted plaintiff a license to sell intoxicating liquors during the municipal year beginning in 1908. Defendants Avere remonstrators, and from tlie order of tlie village trustees appealed to the district court, Avbere tlie license Aims revoked. From the judgment of the district court plaintiff has appealed.

Defendants resisted the license on the ground that five of the petitioners Avere not bona fide freeholders of the village of Benedict, Avithin the meaning of the laAV. If three of those thus challenged were disqualified, the village trustees, for Avant of a petition by thirty freeholders, were without jurisdiction to issue the license, and in that event it Avas properly canceled by the district court. On this issue there is proof tending to show these circumstances: One of the petitioners challenged had only lived in the village a year and a half. January 22, 1908, he bought from a saloon-keeper, who intended to become an applicant for a license, a lot in a ravine Avest of town for $15. There Avere no buildings or fences on the lot, and petitioner had not cultivated - it. He did not knoAV the boundaries, and admitted he never had any benefit from the lot except to be a petitioner. He owned no other realty. When asked on the witness stand his purpose in buying the lot, he replied: “Why, to be a freeholder.” After he made his purchase the saloon-keeper Avho conveyed it to him accosted him on the street and asked him if the deed had been recorded. It had been intimated to him that he bought the lot with the purpose of becoming a petitioner and he did not at the time deny the imputation. After he petitioned for the license he signed and acknowledged a deed to the lot for the price of $16 and had the deed in his pocket for delivery to the purchaser, but tore it up after the remonstrance was brought to him. This is not intended as a summary of the testimony relating to his qualifications. The purpose is to shoAv some of the circumstances of AAdiich there is proof. They indicate that petitioner Avas not qualified, within the meaning of the rule that “one made a freeholder for the sole purpose of qualifying him as a petitioner for a liquor license is not a bona fide freeholder.” Cohn v. Welliver, 84 Neb. 280; Dye v. Raser, 79 Neb. 149. Under the issue raised by the remonstrance the burden was on applicant to show that petitioner Avas a bona fide freeholder. Swihart v. Hansen, 76 Neb. 727. There was a general finding in favor of remonstrators.' This included the finding that petitioner Avas not qualified as such, and it cannot be held under the circumstances narrated, Avhen considered with all the proof, that the finding AAras Avithout support in the evidence.

Another petitioner asserted ownership of a lot in a ravine. He bought it in February, 1908. The title came from a- saloon-keeper and prospective applicant for a license, through his bartender, not long before the petition Avas signed. One Avitness said the lot liad no market value, and the circumstances Avere such as to justify the finding of the trial court that the petitioner was not a bona fids freeholder Avithin the meaning of the rule stated. Testimony relating to the qualification of another petitioner justified the trial court’s finding that his residence in the # village had not been established. The disqualification of the three petitioners mentioned left the village trustees without jurisdiction to issue the license, and error does not afiirmatively'appear in the judgment revoking it.

Affirmed.