34 Neb. 872 | Neb. | 1892
A complaint was filed before a justice of the peace of the city of Lincoln, charging plaintiff in error with selling intoxicating liquors within the limits of said city on the 23d day of September, 1891, the day on which a special election was held in said city. He was arrested, tried, and convicted, and sentenced by the justice to pay a fine of $100 and the costs of prosecution. A petition in error was prosecuted to the district court and the judgment of the justice of the peace was affirmed.
There is no controversy upon the facts. Plaintiff on September 23, 1891, was a licensed saloon keeper of the city of Lincoln. It is stipulated that he sold intoxicating liquors on said date, and on which day, it is conceded, a special election was held.
It is insisted by counsel for plaintiff in error that justices of the peace have no jurisdiction of the subject-matter of said section, but that a prosecution for the violations of its provisions must be begun either by indictment or information filed in the district court of the proper county. In support of this contention counsel cites State v. Sinnot, 15 Neb., 472. In that case Stephen Sinnot was indicted for selling liquors on Sunday. The indictment was found under the provisions of section 2187 above quoted. The contention was that the penalty therein provided could be enforced only by civil action. This court decided that a person violating its provisions may be punished by indictment. This was the only question involved or passed upon in the case. It does not follow from the precedent cited that the section under consideration cannot be enforced against an offending party by information or complaint filed before a justice of the peace. The section being silent as to the court in which prosecutions shall be brought, the general laws of the state govern. ,
Section 314 of the Criminal Code confers upon justices of the peace jurisdiction concurrent with the district court in all cases of misdemeanors, where the fines cannot exceed $100, or the imprisonment cannot be more than three months, except as otherwise provided by law. The offense with which plaintiff in error is charged is a misdemeanor, and the penalty imposed by said section 2187 is within the jurisdiction of justice courts. It is obvious that such courts have concurrent jurisdiction with the district
It is finally urged that the provisions of said section 2187 were not in force within the corporation limits of the city of Lincoln at the time of the sale of the liquors in question. In other words, that said section was suspended in its operation in cities of the first class having more than 25,000 inhabitants, by the subsequent enactment of section 2572 of the Consolidated Statutes, the same being section 91 of article 1, chapter 13a, Compiled Statutes of 1891, entitled “Cities of the first class.” Said section is as follows :
“The excise board shall have the exclusive control of licensing and regulation of the sale of malt, spirituous, vinous, or intoxicating liquors in such city, and for that purpose shall hold a public session at least once each month, at the council chamber in said city, and a record of its proceedings shall be made and kept as a public record by the city clerk, who shall be clerk of said board. A majority of such board shall constitute a quorum. The excise board may license, restrain, regulate, or prohibit the selling or giving away of malt, spirituous or vinous, mixed*876 or fermented, intoxicating liquors in said city, the license not to extend beyond the municipal year for which it shall be granted, and to determine the amount to be paid for such license, not less than the minimum sum required by any general law upon the subject; Provided, That special permits may be granted to druggists for the sale of liquors for medicinal and mechanical purposes; And provided further, That all such licensees, except druggists, shall be required to give bonds in all respects, and they and their sureties shall be liable on such, bonds in all respects, as in the case of persons to whom licenses for the sale of intoxicating liquors are or may be granted by the county board, and all the restrictions, regulations, forfeitures, and penalties provided by law respecting the sale of liquors by persons licensed therefor by the county board, shall apply and govern all persons (except druggists) licensed by virtue of this section,” etc.
The legislature by this section has conferred upon the excise boards of cities of the class of Lincoln, the exclusive right to license and regulate the sale of intoxicating liquors within the limits of the corporation. The power is likewise given the excise board to prohibit the selling or giving away of such liquors in the city limits. It was not the intention of the law-makers, when they enacted the above section, to suspend within cities of the first class the general law of the state relating to the sale of liquors. Neither this section, nor any other provision of the act of which it is a part, in express terms so states. Nor is such intention to be gathered from the language used, while the contrary is clearly manifest. The section under consideration provides that “ all restrictions, regulations, forfeitures, and penalties provided by law respecting the sale of liquors by persons licensed therefor by the county board, shall apply and govern all persons (except druggists) licensed by this section.” While the excise board has the exclusive authority to license the sale of liquors in the city,
We think counsel placed entirely too much stress upon the word “ exclusive ” used in the section quoted. In construing the provisions it is proper to keep in mind the previous legislation upon the subject, and the purpose of the legislature in enacting the same. Prior to 1889 authority was vested in the mayor and city council to license or prohibit the liquor traffic within the corporation. In that
It appears in evidence that the excise board of the city of Lincoln adopted rules and regulations governing the liquor traffic. By rule 12 it is made unlawful for the licensee to sell or give away any intoxicating liquors to a minor, Indian, insane person, or habitual drunkard, or on Sunday, or the day of any general election, and prescribes a penalty for each violation of the rule. But there is no provision making it an offense to sell or give away such liquor on the day of special elections in said city. Therefore, if the state liquor law is not in force in the city of Lincoln, plaintiff in error has committed no offense and cannot be punished. The excise board has, in effect, attempted to authorize such sales on the days of special elections, which it had no power to do. In our opinion the enacting of section 2572 did not suspend the provision of 2187 within the city of Lincoln. While there are cases to the contrary, the arguments advanced in the opinions are not convincing to our mind and we decline to follow them. The conclusion we have reached is sustained by high authority. (See Gardner v. People, 20 Ill., 430; Berry v. People, 36 Id., 423; Heinssen v. State, 14 Colo., 228.) The judgment is
Affirmed.