83 Neb. 371 | Neb. | 1909
William T. Dudgeon was charged before the police judge of the city of Lincoln with unlawfully keeping spirituous and vinous liquors for the purpose of sale without license, in violation of the rules and ordinances of the excise board of that city. A search warrant was issued, certain liquors were found in his possession, and the defendant arrested, brought before the magistrate, tried and found guilty. He appealed to the district court, and there filed a plea in abatement, which was sustained by that court, and the defendant discharged. From the judgment of the court sustaining the plea in abatement, the state has prosecuted error to this court.
The plea in abatement was based upon the propositions that the police judge had no jurisdiction of the subject because the excise board alone has this power; that the police judge had no jurisdiction to try and determine, but only to examine into the matter charged in the complaint
The argument in support of the first proposition is that section 64, art. I, ch. 13, Comp. St. 1907, known as the “Lincoln Charter” makes the excise board a judicial body having power to issue subpoenas and commitments to hear testimony to punish violation of its rules, and generally to have such powers as a justice of the peace has on an examination before him, and that this power is conferred upon the excise board alone, and not upon the police judge, and hence that it is the proper tribunal to try offenses of this nature. We think this is a misapprehension of the purport of the provisions referred to. When the hoard is in session as a licensing body or in the proper exercise of its functions in the management and control of the police force, it might be shorn of much of its usefulness if it had no power to compel the attendance of witnesses or compel them to testify, or if its presiding member had no power to administer oaths. The excise board is not a police court, and it has no power of jurisdiction to try persons charged with offenses under the criminal laws of the state or with the violation of ordinances.
It is next contended that section 260 of the criminal code gives police judges jurisdiction equal to that of a justice of the peace in all matters relating to the enforcement of the criminal laws of the state, and that section 44, art. I, ch. 13, Comp. St. 1907, gives them exclusive jurisdiction over all offenses against the ordinances of the city, but that there is no provision giving police judges jurisdiction over a violation of the rules of the excise board, and that the constitution of the state limits the
It is unnecessary to copy section 64 of the Lincoln charter in full. It confers upon the excise board the exclusive power of licensing and regulating the sale of liquors within the city, provides that the license fee shall not be less than the minimum sum required by the laws of the state, that bonds shall be given, and that “all the restrictions, regulations, forfeitures, and penalties provided by law respecting the sale of liquors by persons licensed therefor by the county board shall apply to and govern all persons licensed by virtue of this section.” It is further provided that “any person selling or giving away in said city any liquor of the description mentioned in this section, without first having complied with such regulations, and procured a license or permit therefor, or who shall violate any of the rules and regulations established by such excise board and governing the sale of such liquor, shall on conviction thereof be fined in any sum fixed by such rule, not more than two hundred dollars for each offense and shall be committed to the city jail until such fine and costs are paid.” It also'provides for the revocation of licenses or permits upon the conviction of the licensee of a violation of the laws or regulations governing the sale of liquor; that the excise board shall control all such places where liquors are sold; and that “all such rules and regulations, when adopted by said board and published once in a daily newspaper published and of general circulation in said city, shall have like force and effect as the ordinances of said city adopted by the city council1 thereof, and shall be proved in like
Under section 18, art. YI of the constitution, relating to the judicial department, a justice of the peace has no jurisdiction in a criminal case where the punishment may be a fine of over $100, and under section 260 of the criminal code and section 44 of the Lincoln charter (Ann. St.' sec. 7943) the police judge is given exclusive jurisdiction of all offenses against the ordinances of the city, and concurrent jurisdiction with justices of the peace of misdemeanors under the laws of the state arising within the limits of the city, and for the preliminary examination of persons charged with offenses beyond his jurisdiction. The penalty imposed by the general liquor law of the state for the offense with which the defendant was charged
This section next provides, as we have seen, for a fine of not more than $200 for a violation of the excise rules. It will be observed that the penalty which is authorized to be inflicted for a violation of the rules of the excise board is a different, and it may be a much smaller, penalty than that provided for the statutory offense. There is thus given to the excise board power to enact rules, a violation of which may be punished by the imposition of a fine of not more than $200, while it leaves the general provisions of the statute still enforceable by the proper authorities. In Bailey v. State, 30 Neb. 855, it appeared that a village board was given power to impose fines for a violation of ordinances “not exceeding one hundred dollars for any one offense,” while the liquor law fixed the penalty for the same offense as not less than $100 nor more than $500. Bailey was arrested, tried, by the justice, found guilty, and sentenced to pay a fine of $100 and costs. It was urged that the ordinance was void because the board had no power to enact an ordinance providing a different punishment from that provided for a violation of the general law on the same subject, but it was held
We are further of the opinion that in so far as rule 27 seeks to authorize a fine in excess of $200, the amount limited in the charter for the violation of an excise rule, it is inoperative and void, but this does not affect the otherwise valid provisions of the rule. State v. Hardy, 7 Neb. 377; Bailey v. State, 30 Neb. 855; State v. Stuht, 52 Neb. 209; Town of Eldora v. Burlingame, 62 Ia. 32.
We think there can be no doubt of the validity of the provision of the charter giving the rules of the excise board, when duly adopted and published, like force and
Having reached these conclusions, it is unnecessary to determine the other points raised. The judgment of the district court is therefore correct, and the exceptions of the state are
Overruled.