75 Neb. 443 | Neb. | 1906
The first, third, fourth and seventh sections of ordinance No. 84 of the village of Lyons, Nebraska, are in the following language:
“Section 1. Each and every person, firm and association, corporation, or other organization, carrying on the occupation or business hereinafter mentioned, within the corporate limits of the village of Lyons, Nebraska, shall pay to the treasurer of said village annually, as a tax upon said occupation, or business, from the first Tuesday in May of each year the sums hereinafter provided.”
*444 “Section 3. There is hereby levied an annual tax upon occupation and business carried on within the limits of said village of Lyons, Nebraska, as follows : Billiard and pool-halls and places using similar tables for amusement or gain, first table $25, each additional table $15, bowling alleys,” etc.
“Section 4. No demand shall be necessary for said taxes, but all persons subject to pay tax under this ordinance shall attend at the office of the city treasurer and pay the same on the second Tuesday of May, or, if they shall not be engaged in any business or occupation subject to tax under this ordinance on the second Tuesday of May, then, as soon as they shall be subject to pay such tax by engaging in an occupation or business which is taxed under the provisions of this ordinance or upon publication of this ordinance.”
“Section 7. If any tax unpaid under the conditions of this ordinance shall not be paid when the same by terms of this ordinance becomes payable, then the nonpayment of said tax shall be deemed a misdemeanor and the party so offending shall be fined not less than $5 nor more than fifty dollars.”
The relator, C. E. McMonies, was the'proprietor of a billiard and pool-hall in Lyons during the year 1903, and on May 3, 1904 (it being the first Tuesday of May), he tendered to Charles McMonies, the treasurer of said village, the sum of $85, being the tax required on four pool tables and one billiard table for the year 1904. The treasurer refused to accept the money, and the relator immediately commenced this action, asking a writ of mandamus requiring him to do so and to issue a receipt therefor. The district court refused the writ, and the case is.brought here for review.
The respondent defends upon two grounds: (1) That, by an ordinance passed subsequently to the tender, but prior to the trial of the case, it was made unlawful for any person to keep for public use or hire or gain within the village of Lyons any billiard or pool-hall or any billiard
“The interests of peace, good order and public morality require that the billiard and pool room should be conducted according to such rules and standards, and subject to such restrictions, as may be prescribed by the municipal authorities. Such a room is not, we concede, per se a nuisance, but without regulation and supervision it is likely to become so anywhere, and in a village it is apt to degenerate into a trysting-place for idlers and a nidus for vice.”
The plaintiff’s pool-hall not being a nuisance per se, and the village authorities having no right to suppress it, as such, until by its management and conduct it becomes a' nuisance in fact, what are the powers of the village board in dealing with it and other like places? Subdivision I of section 39, article I, chapter 14, Compiled Statutes 1903 (Ann. St. 8639), confers upon cities of the second class power “to restrain, prohibit, and suppress billiard tables and bowling alleys kept for public uses”; but section 40 (Ann. St. 8680) of the same chapter which relates to villages, provides that this class of municipalities “shall have the rights, powers, and immunities hereinafter granted, and none other, and shall be governed by the provisions of this subdivision.”
It is urged on behalf of respondent that the village has power to prohibit pool and billiard-halls under the general welfare clause of its charter. It cannot be disputed, we think, that, in the absence of express authority, the village has no power to prohibit or suppress any lawful business, recognized as such by the laws of the state. As we have already seen, billiard and pool-rooms are not nuisances per se, and the statutes of the state recognize the keeping of such halls as legal and lawful, except that minors shall not be allowed to play at the game or to be in or upon the premises so occupied. • (Cr. code, sec. 222.) We conclude, therefore, that villages have no authority to prohibit or suppress billiard and pool-halls within their limits.
The defense that the tender of the tax was prematurely made must, we think, be sustained. By the express provisions of the ordinance, those, liable to the tax were to appear at the office of the city treasurer on the second Tuesday of May, and make payment. It is urged by the relator that, because the fiscal year for villages commences on the first Tuesday of May, the tax may be paid at any time after that day. In other words, that the tax became due at the commencement of the fiscal year, but the ordinance extended the time of payment until the second Tuesday of May, after which time the tax became delinquent, and the party in default might be proceeded against for nonpayment. We are not inclined to accept this view of the case. In the absence of this ordinance, the relator was not required to pay any tax. Of necessity, the ordinance imposing the tax must fix a time for its payment. Otherwise there could be no delinquency and no prosecutions for nonpayment until the last day of the fiscal year,
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.