17 Neb. 311 | Neb. | 1885
The relator seeks a writ of mandamus to the respondent requiring him to discharge certain ministerial duties imposed upon him by the ordinances of the city of Omaha, of which city he is the marshal.
• Section 1. “ No person or co-partnership of persons shall, within the limits of the city of Omaha, either by himself or by his or their agent or employe, sell or give away, upon any pretext whatever, any malt, spirituous, or vinous liquors, or any intoxicating drinks without having first complied with the provisions of this ordinance, and obtained a license as herein set forth.”
Section-23. “ The city marshal shall, on the first day of each and every month, ascertain and report to the city council at its first regular meeting thereof the names of all persons or firms engaged in the liquor traffic, and the place of business of each, and whether licensed or unlicensed, and shall notify any unlicensed liquor dealers to at once cease such traffic, and shall make complaint against all persons selling liquor without license.”
It is alleged in the relation that “there are now, and for a long time have been, numerous persons and firms engaged in the liquor traffic in the city of Omaha who have now no license, nor have ever had ; nor have they ever made application for such license, but have neglected and refused to do so; but who, notwithstanding, are now, and for a long time have been, selling and otherwise disposing of intoxicating liquors in violation of the laws of the state of Nebraska, and the ordinance herein pleaded.”
The first question presented by this case is, whether or not mandamus, is the proper remedy? If not, the writ should be denied. It may be said that there is a “ plain and adequate remedy in the ordinary course of the law,” sec. 646, civil code, and that it is not only the privilege but the duty of every good citizen of Omaha to file the necessary complaint against persons who are violating the laws of, the state or the ordinances of the city; and that it is the special duty of the officers of the relator to do so in order to protect the financial
Section 645 of the civil code is as follows : “The writ of mandamus may be issued to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. But though it may require an inferior tribunal to exercise its judgment or proceed to the discharge of any of its functions it cannot control judicial discretion.” The act which is required of the respondent is “ an act which the law specially enjoins as a duty resulting from an office.” We are wholly unable to see why it is not within the provisions of the law above cited and quoted. Mandamus is evidently the proper remedy. State v. Gracey, 11 Nev., 223. Moses v. Kearney, 31 Ark., 261. State v. Doyle, 40 Wis., 175. Wood on Mandamus, 19 Id., 24. Moses on Mandamus, 14. 2 Johnson’s Cases, 217, note 1. Comrs. v. King, 13 Flor., 460.
The relation shows that a demand has been made, upon
“Omaha, Neb., January 10, 1885. aTo Thomas Cummings, Marshal of the City of Omaha:
“ Sir—As attorney for the school district of Omaha, I would respectfully call your attention to the fact that numerous wholesale liquor dealers are selling intoxicating' liquors without a license. I would instance the Iler Distillery, Metz Brewing Company, Schlitz Milwaukee Beer Company, and others.
“ I have advised my clients that such parties, though exclusively wholesale liquor dealers, are amenable to the Slocumb law, and that being so, it is your duty to ascertain the number of such unlicensed dealers, report them to the city council, and make complaint against- such as fail to take .out license.
“ To request you to perform your duty in this behalf is the object of the present notice.
“ H. D. Estabrook.”
“Omaha, Neb, January 10, 1885.
“ H. I). EstabrooJc, Esq., Attorney for the School District of Omaha:
“Dear Sir—Your notice of even date was duly received. I have no disposition to neglect the duties of the office which I hold, and were I certain that the wholesale liquor dealers are amenable to the so-called ‘ Slocum b law/ I would not hesitate to notify them to take out licenses, and' to complain against them for a failure to do so. But as presently advised, I am of the opinion that wholesale liquor dealers are not intended to be included in the act, and until the matter is otherwise judicially determined, I must decline to’ either ascertain, report, or complain against such dealers.
“ I am very respectfully yours,
“ Thomas Cummings,
“ City Marshal.”
At this point we are met with the suggestion that this proceeding is only intended to secure a construction of the liquor law of 1881 upon the question of the liability of wholesale dealers to be prosecuted as violators of its provisions, and that, as they are not parties to this action, any decision we may make will have no binding force upon them, and hence, if it should be in favor of the relator the whole question will still be open to litigation by them. This must be conceded, and it must be further conceded that this has been the law in all cases since the organization of courts of justice. Yet courts have not, as a rule, refrained from deciding cases presented to them for decision, simply because the rights or liabilities of others not parties to the action may not be bound by the adjudication of the differences between parties immediately, before the court. The question now to be decided is: Is it the duty
of the respondent to comply with the provisions of the ordinance, and does that duty include what are. termed wholesale dealers?
Section one of the ordinance referred to was evidently passed by the city council for the purpose of carrying out and giving effect to the law of 1881, known as the “ Slo
As there are no exceptions in this section, we next look to the whole act, and in that we find no words of limitation and no exceptions. As decided by this court in Pleuler v. The State, 11 Neb., at page 556, the act is strictly a prohibitory law without action by local authorities. No person is authorized to sell liquors unless he obtains that authority from local' tribunals. The letter of the act itself furnishes no escape for any person who sells “ malt, spirituous, or vinous liquors, or any intoxicating drinks.” Section eleven, however, as amended in 1883, exempts from its provisions persons who may desire to sell wine made from grapes grown or raised by themselves on their own land, provided they sell in quantities of not less than one gallon. This amendment can have but little bearing upon the ques
But it may be contended that the spirit of the act under consideration is not in harmony with what may be deemed its letter, and that it was the legislative intent that its provisions should only apply to what are familiarly known as saloon keepers. The usual method adopted by courts for ascertaining the legislative intention is by reference to the language adopted by the law maker. By the application of this rule we have seen there is no discrimination between persons who sell liquor. The person who sells forty gallons without a license is not less guilty than the one who sells one gill. It is true that laws have been enacted in many states which are limited in their effects to retail dealers. But in such cases it is clearly so expressed or implied by the acts themselves. Such acts are usually made to apply to keeping “ dram shops,” “ tippling houses,” “ selling liquor to be drank upon the premises,” “selling liquor in less quantity than one gallon,” etc., etc. If not expressed in such laws it is clearly to be inferred that they can only refer to retail dealers. But such is not the law of this state, and no such implication can arise. It may be asked if it can be maintained that wholesale dealers are required to procure the certificate of character, execute the bond, give notice of application, and run the risk of being met by remonstrances followed by “ hearing,” “ appeal,” etc., the same as the saloon keeper? We answer: Such is the law. As was held in Pleuler v. The State, the act is for the purpose of regulating a traffic,. “ believed by the legislature to be pernicious in its effects upon society.” In the eyes of the law the person who would engage in this
It is not for the courts to say whether the law is right or wrong, provided it is a constitutional enactment. It is simply their duty to declare the law as they find it.
It is clearly the duty of respondent to report to the council “ the names of all persons or firms engaged in the liquor traffic” as required by the ordinance, without regard to the quantity being sold by such person at each sale. If he is “ engaged in the traffic ” it is enough for the marshal to know to apprise him of his whole duty.
A peremptory writ of mandamus is allowed.
Writ allowed.