83 Neb. 469 | Neb. | 1909
These cases are appeals from the judgment of the district court for Adams county in affirming the action of the city council of the city of Hastings, whereby licenses to sell intoxicating liquors were issued, severally, to each of the plaintiffs. The causes are separately briefed and presented here, but were argued and submitted at one hearing, and will all be disposed of in this opinion as each case appears to demand under the rules of law deemed applicable. A remonstrance was filed to each petition, some of the grounds of objection being common to all, one of which is that the petition is not signed by the requisite number of freeholders. This placed the burden of proof upon the applicant to show by competent evidence that the signers of his petition were all freeholders. Lambert v. Stevens, 29 Neb. 283; Brown v. Lutz, 36 Neb. 527.
The question then arises: Was this jurisdictional fact established by competent evidence? In Rosenberg’s case, no one of the signers was called for the purpose of proving the fact of the necessary ownership of real estate; but the deputy assessor was called, who testified that he was aquainted with each of the petitioners, naming them, and that the petitioner resided in the proper ward of the city and owned real estate therein. He was then presented
There is in the record a certificate by the register of
In the case of the application of John Curry, we find the record the same as in the Rosenberg case, except that there is an additional certificate by the register of deeds, which contains no names, but certifies that “30 of the signers of the within petition are freeholders in the Third ward of the city of Hastings as the same now appears of record in this office.” This certificate is attached to the petition. As it adds nothing to the force of the evidence, the same rule will have to be applied as in the Rosenberg case.
The record in the Schissler case is the same as in Rosenberg’s, and the result must be similar, and therefore no further reference to it need be made.
The case of Neylon presents a like condition, with the exception that it was admitted of record that 15 of the 34 signers to the petition were freeholders of the Third ward of the city of Hastings. The result must therefore be the same.
In Freitag’s case competent proof that the signers of the petition were freeholders in the Third ward of the city was either made, or the fact admitted. So far, then, as that question was concerned, the applicant was entitled to the license sought. However, other questions are presented which it is necessary to notice.
It is contended that there is no provision by statute permitting a license to be granted in a city of the class to which Hastings belongs; that the statute simply delegates the powers to the municipality, and that the city can act in a given case only by ordinance. The record shows that a general ordinance was passed in 1903, fixing
The record of the hearing before the council presents an anomalous condition. The council consisted of eight members besides the mayor. Four voted in favor of the issuance of the license and four against, which created a tie. The mayor broke the tie by voting in favor of granting the license. Many objections were made by counsel for the applicant to evidence offered by the remonstrant, which were almost invariably sustained by the same vote. The disposition shown by four of the councilmen and the mayor to exclude the evidence offered by the remonstrant, some of which was clearly competent, cannot be commended.
It is shown by the record that Mr. 0. L. Alexander was a member of the council at the time of the hearing of the application for the license, and that he had been such member for some time previous; that, a short time before the filing of Freitag's petition, a petition for a license had been presented by William Janssen and John B. Freitag; that said John R. Freitag for whom that petition was
The question is: Was Alexander disqualified by having signed the previous petition? Upon this inquiry we are of the unanimous opinion that he was disqualified; that his vote was void; and that, such vote changing the result, no valid license could issue. In Vanderlip v. Derby, 19 Neb. 165, two of the members of the village, board had signed the petition, and it was held that they were disqualified. The same was held in State v. Weber, 20 Neb. 467; State v. Kaso, 25 Neb. 607; Foster v. Frost, 25 Neb. 731, and Powell v. Egan, 42 Neb. 482. In the latter case the members of the board had signed the petition, but it was afterwards withdrawn, their names erased and others substituted, and the petition refiled. It was held that the erasure of the names and the substitution of others did not remove the disqualification. In the opinion it is said: "The reason of the rule is that the village board acts judicially (Hollembaek v. Drake, 37 Neb. 680), and that by the petition for a license a signer declares, if not his
We think it must be conceded that the rule above stated must be applied with full force to this case. In the former petition the councilman certified (to himself) that Janssen and Frei~ag "are men of respectable character and standing," and he "therefore pray(s) that a license to sell malt, spirituous and vinous liquors during the municipal year 1908" issue to them. This certificate and prayer are not in any sense weakened in effect by the fact that another name is coupled with the present applicant. He had already decided and certified that Freitag is a proper party to receive the license. What more or what greater advantage could any litigant desire, H untrammeled by conscience, than would be offered in such a case? In so far as the trier of fact in such a case would be con~cerned, the favored litigant would be certain of the decision, for "the court" would already be convinced as to the proper solution of the ultimate issues
It is contended by the appellee that this court is without jurisdiction to entertain this appeal, for the reason that the statute does not provide for the proceeding. An unusually able argument was made at the bar of this court in support of this contention. It is not deemed necessary for us to enter upon this inquiry at any great length, for the reasons that ever since the enactment of what is familiarly termed the `~Slocumb Law," in 1875, it has been tile practice of the court to review such cases. This has become a part of the jurisprudence of the state, and it cannot now be departed from. It follows that the district court erred in its judgment in each of the cases, and they are severally reversed and the causes remanded to that court, with directions to reverse the judg ment and decision of the city council, order the licenses canceled, and that the costs be taxed to the petitioners.
JUDGMENT ACCORDINGLY.