20 Neb. 467 | Neb. | 1886
This is an original application to this court for a peremptory mandamus against the village board of the village
After the necessary formal allegations, it is set forth in the said application that on the 22d day of April, 1886, there was filed in the office of the clerk of said village an application by petition of thirty-two persons claiming to be resident freeholders of said village, asking that license be granted to Leña Klindt and Lena Staltenberg under the firm name of Klindt & Staltenberg, to sell malt, spirituous, and vinous liquors within said village, as provided by law.
That a notice of said application was published in a newspaper published in the said county of Washington on the 22d and 29th days of said month of April respectively, etc.
That on the 30th day of April, 1886, a remonstrance in writing was filed in the office of the village clerk of said village, signed by the plaintiff and six other residents of said village, remonstrating against granting license to said Lena Klindt and Lena Staltenberg as asked for by said application, and requesting said board of trustees to appoint a day for the hearing of said case.
That the attention of said board was called to said remonstrance at the meeting of said board held for the purpose of considering the said application for license on the 30th day of April, 1886, but that instead of appointing a day for the hearing of said remonstrance so that said remonstrators might have a fair opportunity to be present with their witnesses, the said board, at 10 o’clock p.m., of said day, adjourned until 9 o’clock the following morning.
That none of said remonstrators were present at tlie time of said adjournment, nor notified of said adjourned meeting.
That plaintiff, having heard through rumor of the said
That there has been no hearing on said remonstrance, nor any other time fixed for such hearing, etc.
The defendants, being duly notified by the plaintiff of his intention to apply for a mandamus, appeared in this court on the last day of the last term and-contested the application by argument, but filed no written answer. The matter was then taken under advisement. The facts alleged in the petition are sufficiently proved by certificates of the proceedings of the village board under the hand and seal of the village clerk. The statute, section 3, chapter 50, p. 414, Comp. Stats., is as follows :
Sec. 3. If there be any objection, protest, or remonstrance filed in the office where the application is made, against the issuance of said license, the county (city or village) board shall appoint a day for hearing of said case, and if it shall be satisfactory proven that the applicant for license has been guilty of the violation of any of the provisions of this act within the space of one year, or if any former license shall have been revoked for any misdemeanor against the laws of this state, then the board shall refuse to issue such license.”
Section 4 provides as follows :
' •“ Sec. 4. On the hearing of any case arising under the provisions of the last two sections, any party interested shall have process to compel the attendance of witnesses, who shall have the same compensation as now provided by law in the district court, to be paid by the party calling said witnesses,” etc.
Ordinarily, in order to try a question of fact, witnesses must be subpoenaed and other preparations made. In order to do this, a definite day and hour must be fixed for such trial, and that sufficiently advanced in the future to enable the witnesses not only to travel from their homes to the place of trial, but to make some preparation for an absence from their homes and avocations. In criminal cases courts may require and enforce the immediate attendance of witnesses because of the interest of the state, and the peace and order of society on the one hand, and the life or liberty of the citizen on the other, being at stake; but in proceedings where the pecuniary interests of litigating citizens only are involved, reasonable notice to witnesses as well as citizens should always be given. The time given in the case at bar was not sufficient, and the course pursued by the village board amounted to a denial of the right of the remonstrators to a hearing.
I pass over the point presented in the remonstrance that
In addition to the prayer of the plaintiff’s petition against the said village board, as stated in the fore part of this ■opinion, the petition also contains a prayer against the said Lena Ivlindt and Lena Staltenberg, who were also defendants in this proceeding, “that the license issued to said Lena Klindt and Lena Staltenberg by said trustees, May 1, 1886, be canceled and repayment made pro tanto of the amount paid for the same for the unexpired time,” etc.
Whether this latter prayer of the plaintiff ought to be answered will depend upon the decision of the question raised by the remonstrance, whether the petition for license is signed by at least thirty of the resident free-holders of
A peremptory writ of mandamus will issue to said respondent board, commanding them to convene in session without delay and appoint a day for hearing of said case, which shall be so fixed and appointed as to allow the parties reasonable time to prepare for ‘such hearing, and the said remonstrators, especially the plaintiff in this proceeding, have due and reasonable, notice of the day so appointed.
Judgment accordingly.