State ex rel. Metcalf v. Reynolds

| Neb. | Jul 15, 1885

Reese, J.

On the first day of the present term of this court an application for a writ of mandamus was made, and upon hearing the same a peremptory writ was granted. On that day court adjourned uutil the 11th of August, in accordance with ah order at that time made, and of which notice had been previously given by the clerk. After the-issuance and service of the writ the respondents appeared and moved to vacate it, and for leave to answer to the merits, alleging as ground therefor that they had been misled by the adjournment of the court, having been led to believe that no business would be transacted until the 11th of August. The motion contains other grounds which we will notice in their order.

The application for the writ alleged in substance that the respondents were the mayor and city council of the-city of Seward; that prior to the 23d day of April, 1885( one Frederick Bick filed in the office of the city clerk of Seward his petition for a license to sell intoxicating liquors,, due notice of which was given, and that oh the date above named, and during a session of the city council, the relator,, with others, filed with them a remonstrance in writing, objecting to and resisting the granting of the license; that the respondents instead of appointing a day for the hearing of said cause, as required by section three, chajDter 50, Compiled Statutes of 1885, proceeded at once and on that day and at that session to grant the license, which was then done. A mandamus was prayed to -compel a compliance with the law. The answer alleges that the city council did appoint a day for hearing the questions presented by the remonstrance, and that the day so appointed was the same day, to-wit, the 23d of April, at the meeting of the council then in session; and that the remonstrance was fully heard at that time and the objections found to be without merit, and it is sought to be shown by affidavits on file that the attorney for remonstrants was satisfied with the investigation and made no further objections to the granting of the license. The record of the proceedings of the council is as follows:

“Petition and bond of Frederick Bick to sell malt, spirituous, and vinuous liquors in the first ward was accepted and license ordered by the following vote: Yeas, Sanders, Mulfmger, and Merriam. Nays, Welch.

“Messrs. Beaver, Chapin, Metcalf, and Hays remonstrated against issuing E. Bick license. Eemonstrance overruled and license granted.”

While it is perhaps true that the record of the council would be the only proper evidence of what was done, so far as the facts should properly appear of record, and that the record does not show the appointment of a time at which the remonstrance should be heard, yet we think the facts claimed, even if shown by the record, would be no defense to this proceeding.

The section of the law above referred to is as follows: “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 board (city council) shall appoint a day for hearing of said case, 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 will be seen that if there be any “objection, protest, or remonstrance,” the board or council “shall appoint a day for hearing of said case.” This language is imperative and mandatory. No further action toward granting the license can be taken. The power of the council to proceed further, except to appoint a day for hearing, is suspended. They have but one duty to perform and that is to “appoint a day for hearing.” They could no more legally ascertain the truth or falsity of the allegations of the objection, protest, or remonstrance, than if they were formally adjourned and each man went upon the street as a committee of one, by his own appointment, and made inquiry therein. They must sit as a board, upon the day fixed, for the purpose of deciding upon the merits of the allegations of the remonstrance. The spirit and purpose of this section ,of the law is, that a time shall be appointed for the hearing, of which the parties may take notice and at which they may appear with their witnesses. Guided by its provisions no one would think of appearing before the council with witnesses, taking the chance of being crowded out by other business and compelled to pay the costs of their attendance, but rather would he appear at the time to be appointed when the business before the council would be the hearing of that particular case. The law and reason both clearly contemplate the appointment of a day other than the one on which the remonstrance is presented.

The answer further alleges that the allegations of the remonstrance are and were wholly untrue, and that this fact was clearly shown and proven on the 23d of April, at the time the remonstrance was heard. This may all be true, and yet there being no authority or power lodged in the council to so hear or decide at that time, it could constitute no defense to the writ. The question is as to what was the duty of the council at the time, and not what were the.merits of the remonstrance.

The affidavits and proofs tend to show that the attorney or representative of the remonstrants was present at the time the final action was taken, and made no objection to it. This in our view could not change the matter. The law prescribed the duty of the council. The mere fact that no objection was made could not relieve them of that duty. The proceeding was statutory, and the statute should be complied with.

It follows that the writ was properly issued in the first instance, and that the motion to vacate the same must be overruled, which is done.

Judgment accordingly.

The other judges concur.