17 Neb. 219 | Neb. | 1885
The relator is treasurer of school district No. 114, of Gage county, and the respondent is treasurer of the city of Wymore, which is embraced within the limits of school district No. 114. This is an application for a mandamus to compel the respondent to pay to the relator as treasurer of said school district “all fines, penalties, and license moneys paid into his hands by virtue of the rules, by-laws, or ordinances of said city.”
The respondent in his answer states “that the sum of money, to-wit, six hundred and seventy-six dollars and thirty cents, now held by him and claimed by the relator, was not realized or collected from any fine, penalty, or license money, and does not belong to the school fund of said district, but was collected as an occupation tax under Ordinance No. 2 of said city.”
There is a stipulation in the record “ that the money described in relator’s application or petition was collected by respondent, as alleged by him in the second count of his answer, as a license tax upon the occupation of saloon keepers or dealers in intoxi eating liquors under and by virtue of the ordinance of the city of Wymore, attached to respondent’s answer;” that is, the authorities of the city of Wymore
The question presented is the authority to divert one-half of the money thus received into the city treasury. It will be observed that the entire sum of $1,000 is required to be paid by the applicant for license to enable him to obtain the same. No part of this sum is obtained as a tax? but as a condition of obtaining the license. The $1,000 is paid as a whole for the license—not a part for license and a part as tax, because without the payment of the entire sum the license would not be issued. We must hold, therefore, that the money in question is derived from licenses and not as taxes, and, under the provisions of section 5, Art'. VIII., of the constitution, belongs to the school district and not to the city. Other questions are discussed in the defendant’s brief, but as they are not raised by the record they need not be considered. A writ of mandamus will issue as prayed.
Writ allowed.
