State ex rel. Krebs v. Hoctor, 83 Neb. 690

83 Neb. 690 | Neb. | 1909

Epperson, C.

Relator seeks a peremptory writ of mandamus requiring the respondents, who are the members of the South Omaha board of fire and police commissioners, to restore to him a liquor license which that board had issued and later revoked for alleged violations of the statute, the city ordinances, and the rules of the board. The lower court dismissed the complaint, and relator appealed- A complaint had been filed with the board accusing relator of selling liquor on Sunday. A hearing was had, upon notice to relator, who appeared and introduced evidence in his own behalf. The board found him guilty of the charges and revoked his license.

He now claims that the board had no power to hear and determine matters of evidence relating to an alleged violation of the liquor law. The city charter provides that said board “may, by ordinance, license, restrain, regulate, or prohibit the selling or giving away of malt, spirituous, vinous, mixed or fermented intoxicating liquors. * * * Provided, that any license issued by the board of fire and police commissioners * * * shall be revoked by tbe board * * * upon conviction of tbe licensee of any violation of any law, ordinance, or regulation pertaining to the sale of such liquors, and proceedings of appeal or error taken to review such judgment of conviction shall in nowise affect the revocation of such license.” Section 8414, Ann. St. 1907. Under the above proviso the respondents are required to revoke' a license upon the conviction of the licensee of the violation of the liquor laws of the state or the ordinances of the city. And such power is complete, although no ordinance for that purpose had been adopted by the fire and police commissioners. But it was not the purpose of the legislature to restrict the power of said board to revoke licenses to cases where the licensee had been convicted in a criminal court. The power given in the first part of the section above quoted to restrain, regulate, or prohibit the sale of intoxicating liquors by ordinance is sufficient to authorize the board to adopt by-laws or rules controlling the traffic, including the right to revoke a license upon the violation of any statute or ordinance of the city pertaining to the traffic, or for a violation of any reasonable rule adopted by the board for the control of the traffic. Miles v. State, 53 Neb. 305; Langan v. Village of Wood River, 77 Neb. 444. These cases related to the powers given to a. city council and board of trustees identical with the power conferred upon the respondents.

But it is argued that the ordinances or by-laws adopted by respondents were irregularily and defectively adopted, in that an aye and nay vote is not shown by the record to have been taken, nor does the record show who were present, nor had the resolution been previously read or offered, nor was it ever published. The record does show that a motion was made to adopt the rules alleged to have been violated, and that the motion carried. The statute does not provide the manner of adopting ordinances by the respondents. Such are not city ordinances within the meaning of section 8308, Ann. St. 1907, prescribing the manner of passing ordinances of the city by the city council. There being no statute prescribing the manner for the adoption of ordinances, any reasonable mode which the respondents might adopt would be sufficient, and the so-called rules which the relator is alleged to have violated are ordinances within the meaning of the statute. The words “ordinances,” “rules,” “regulations,” and “bylaws” are synonymous terms. 6 Words and Phrases, 5025. State v. Dudgeon, ante, p. 371. By such rules the respondents herein provided for the revocation of a license after notice to the licensee, and upon satisfactory evidence of his violation thereof. Their decision cannot be attacked by mandamus. And, again, the rules which relator assails are the rules under which his license was granted. If they aré defective, he was not entitled to his license and therefore has nothing which may be restored to him. Neither can he complain that he had no notice of such rules. His license expressly provided that it may be revoked for any violation of the rules of the board, or ordinance’s of .the city, or the provisions of the statute with respect to the sale of intoxicating liquors.

Further complaint is made that one of the rules is contrary to public policy and void, because it provides that any member of the police department or city official may file complaint accusing a licensee of a violation of the rules, and does not expressly provide that a complaint may be made by any other person. It is argued that under this rule no one but a city official or a member of the police department may file a complaint against a licensee. There can be no doubt but that a provision that no one but an officer could complain of a violation of the law by a licensee would be ineffectual. In the absence of a rule, it would seem to be the duty of the board to investigate any complaint lodged with them, if made by a responsible person in a position to know the facts. The rules adopted should not be construed as exclusively providing that no, one but officers or members of the police department could complain. In any event the complaint upon which the relator was tried was filed by one wbo was permitted to file the same.

We recommend that the judgment of the lower court be affirmed.

Duffie, Good and Calkins, CC., concur.

By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is

Affirmed.