24 Neb. 608 | Neb. | 1888
This is an original application for a mandamus. The relator, Morgan Cox, by his relation on the part of the state, alleges that the village of Dunbar, in Otoe county, is a municipal corporation, organized as a village under the
There was a prayer and motion on the part of the relator that a mandamus issue directed to the respondents, Thomas Hanlon, Joseph Snyder, S. M. Scarborough, Stewart Francis, and Clinton Riddle, as trustees of the village of Dunbar, commanding them to immediately appoint a day for the hearing of the case arising under the remonstrance against the granting license to Fred. Haeffner to sell malt, spirituous, and vinous liquors, and filed with the clerk of •said village May 3,1888. Also to cancel the license issued to said Fred. Haeffner, etc.
Two of the respondents, to-wit, Stewart Francis and Clinton Riddle, filed their answer herein, by which they admit all and singular the facts and allegations stated in the relator’s petition, and declare that they are and at all times since the filing of the remonstrance against the issuance of license to the respondent, Haeffner, to sell intoxicating liquors, as alleged in relator’s petition, the said answering respondents were, and still are, willing and ready to execute their official trusts as members of said board of village trustees, and to grant a hearing ujdoii such remonstrance and objection, as provided by law, but that being in the minority of said board they are powerless to act in the premises, etc. The other respondents have made no answer or appearance.
It appears from certified copies of the minutes of the proceedings of the said board, accompanying the relation, and which were offered in evidence, that at a regular meeting of said board held on the 1st day of May, 1888, there
There is also a certificate of the clerk of said village to ■a copy of the proceedings of the said village board, at a ■meeting held on the 4th day of June, 1888, together with •a certificate of said clerk, bearing date June 30, 1888, which, taken together, show negatively that no day was by ■the said board set for a hearing of said case, after the filing of said petition and remonstrance, and before the date of •the issuance of said license.
It thus appears that after the receipt by the village •board of the petition for license to Fred. Haeffner there was filed in the office where the application was made a ■remonstrance againt the issuance of said license.
Section 3 of chapter 50 of the statute, entitled Liquors, ■usually called “the Slocomb law,” provides that, “If there be any objection, protest, or remonstrance filed in the office where the application is made, against the issuance of said license, the * * * board shall appoint a day for the Fearing of said case,” etc. .
The point here presented was fully considered by this
“The provisions of section 3, chapter 50 of the Compiled Statutes of 1885, by which it is provided that, upon an objection, protest, or remonstrance being filed against the issuance of license to sell intoxicating liquors, the county board, city council, or village trustees shall appoint a day for hearing the case, is mandatory, and the board, council, or trustees have ho authority to issue a license without appointing a time for hearing a remonstrance filed, and investigating the same.”
Adhering to the above we must hold, as I think, that the license issued after the filing of a remonstrance against the same, and without even setting a day for hearing the case ■ thereby raised, is voidable, and upon the proper application should be recalled and canceled.
That part of section 3 of chapter 50, not quoted above, is as follows: “And if it shall be satisfactorily 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.”
It may be urged that this language is a limitation upon the power, or at least upon the duty, of the board to refuse to issue license, and that it restricts the right of rejection to the causes stated in the clause quoted. This point was incidentally considered, though not formally presented, so far as shown by the reported cases, in Vanderlip v. Derby, supra, and The State, ex rel. Ossenkop, v. The Commissioners of Cass County, 12 Neb., 54. In addition to what is said in those cases, I desire to add: The granting of a license under the provisions of law which we are now considering, is a matter of discretion on the part of the board controlling the ■ municipal body in question; this
Judgment for costs will be entered against the respondents, Thomas Hanlon, Joseph Snyder, and S. M. Scarborough.
Judgment accordingly.