White v. City of Lincoln

| Neb. | Jan 15, 1877

Maxwell, J.

In the case of The City of Tecumseh v. Phillips, ante, p. 305, this court held that where money was collected by the corporate authorities of towns, and cities of the second class, for license to sell intoxicating liquors, and such funds were not paid over voluntarily to the proper county treasurer, that it was his duty to enforce payment thereof by suit. The authority to bring such action, although not expressly given by statute, is clearly implied from the obligation he is under to make the collection.

.Lincoln- was incorporated as a town under the provisions of Chap. 53 of the Revised Statutes, on the 6th day of April, 1868. The exact date at which it became a city of the second class does .not appear from the record. In June, 1871, an ordinance relating to the.sale of intoxicating liquors in that city was passed. The following is a copy:

Section 1. “ Be it ordained by the mayor and councilmen of the city of Lincoln, Nebraska, that all petitions for the sale of liquors within the corporate limits of the city of Lincoln shall be presented to the city clerk of the city of Lincoln, and by said clerk presented to the city council of the city of Lincoln, at a regular meeting of the same, and before any license shall be granted by the council, the person petitioning for the same shall execute a bond in the penal sum of not less than one thousand dollars, and not to exceed five thousand dollars, as shall be determined by the council in such case, with good and sufficient surety to be approved by the council, and conditioned that during the continuance of his license he will not keep a disorderly house, and that he or they will not allow gambling with cards, dice or any other implements or devices used in gambling, within his or their house or within any outhouse, yard or other premises in his or their control, and for the payment of all damages, fines and forfeitures which may be adjudged against him under the provisions of Chap. 29 of the criminal code of the State of Nebraska and the ordinances and by-laws of the city of Lincoln; and further, said petitioner shall pay to the city treasurer a license of twenty-five dollars, and the said treasurer is hereby required to pay the same to the county treasurer, as provided in section 336, chapter 29, of the criminal code of the State of Nebraska, and that the sum of three hundred dollars shall be paid by said petitioner to the city treasurer, and take said treasurer’s receipt for said sums of money, and present said receipts to the city council before any license shall be issued; and further, each petitioner shall do and perform all the conditions imposed upon him by the city council before any license shall be issued to him,” etc.

On the 15th of February, 1869, an act was passed by the legislature, entitled an act “ To provide for the incorporation of cities of the second class and to define their powers.”

Section 32 of the act provides that “ said city council shall have exclusively all the powers of the county commissioners, so far as the same relates to licensing or prohibiting the sale of intoxicating liquors in the city, and may license or prohibit ten-pin alleys and billiard tables. They shall fix the amount at not less than twenty-five dollars per year, which shall be paid into the county treasury for the use of the school fund of the county; and in addition thereto, may require a license of not to exceed five hundred dollars for the sale of intoxicating liquors, and not exceeding fifty dollars for each billiard table and ten-pin alley, which shall be paid into the city treasury and belong'thereto, before the license is issued.”

On the 1st day of March, 1871, the legislature passed an act entitled an act “ To incorporate cities of the second class and to define their powers,” which repealed the former act, but which contains no provision similar to that contained in section 32 of the act of 1869.

Section 31 of the act of March 1,1871, authorizes the corporate authorities to enact ordinances, “ to levy and collect taxes for general revenue purposes not to exceed five mills on the dollar valuation in any one year, on all the real, personal and mixed property within the limits of said city, taxable according to the laws of the State of Nebraska, the valuation of such property to be taken from the books or assessment rolls of the precinct assessors of the proper precinct.”

The fourth subdivision of the section authorizes the enactment of ordinances to “ levy and collect license tax on auctioneers, contractors, druggists, hawkers, peddlers, bankers, brokers, pawnbrokers, merchants of all kinds, grocers, confectioners, restaurants, butchers, taverns, public boarding houses, dram-shops, saloons, liquor sellers, billiard tables, bowling alleys, and other gaming tables,” etc.

Section 336 of Chap. 29 of the Revised Statutes (Gen. Stat. 851), provides that “ the county commissioners of any county in this state may, at any regular session of said board of commissioners, grant and issue a license for the sale of malt, spirituous, and vinous liquors,” ete.

<£ The third subdivision of the section provides that the applicant “ shall pay into the county treasury for the use of the school fiind, to be distributed as other moneys, the sum of. not less than twenty-five'dollars, nor more than five hundred dollars, at the discretion of the county commissioners, and file the treasurer’s receipt therefor in duplicate, with the county clerk, before such license shall be issued.”

Section 350 (Gen. Stat. 855, Sec. 586), provides that “all the powers and duties in this chapter devolving upon the county commissioners, shall belong to and be exercised exclusively by the proper authorities of any or all incorporated towns or cities of this state, within the incorporated limits ¿thereof, and the authorities of such towns and cities are hereby empowered to make all needful rules, and pass all necessary ordinances, decrees, or orders to carry out the intent of. this chapter. They may determine what municipal officer shall receive the petition, file the bond and receipt, and issue the license as in section 336 required; provided, however, that such incorporated cities and towns may require such additional sum as to them may seem best, not to exceed one thousand dollars, which sum, together with the sum herein required to be paid to the county treasurer, may be paid to the treasurer of the town or city who shall account for the same.”

Under this statute, without any question, all the money received for license for the sale of malt, spirituous and vinous liquors, should be paid over to the treasurer of the proper county for the use of the school fund. Fias the act to provide for the incorporation of cities of the second class so changed the law as to entitle the defendant to retain money thus collected? It is unnecessary to determine whether the authority to impose a license tax upon “dram-shops,” “saloons,” and “liquor sellers,” is necessarily restricted to license for the sale of malt, spirituous and vinous liquors, as that question does not arise in the case, this money having been received by the defendant for licenses to sell intoxicating drinks.

It is a familiar rale in the construction of statutes that the earliest statute continues in force unless the two are clearly inconsistent with, and repugnant to,, each other, or unless in the latest statute some express notice is taken of the former, indicating an intention to repeal it. The People v. Weston, 3 Neb., 315. And statutes are not considered to be repealed by implication, unless the repugnancy between the new provision and the former statute be plain and unavoidable. Commonwealth v. Herrick, 6 Cush., 465.

In this case there is no repugnancy between the two acts. "We see nothing in the act providing for the incorporation of cities of the second class that indicates an intention on the part of the legislature to permit such cities to retain any portion of the money received for licenses for the sale of malt, spirituous and vinous liquors. The court, therefore, erred in excluding .evidence from the jury showing the entire amount of money received by the defendant for such licenses, and also erred in giving the second and fourth instructions on the part of the defendant. The third and fifth instructions, given at defendant’s request, appear to be predicated upon the supposition that there was testimony tending to show that the money in question had been levied for city and police purposes, and were calculated to mislead the jury.

The third section of an “act to amend an act to incorporate cities of the second class, and to define their powers, approved March 1, 1871, and to equalize certain taxes therein mentioned,” approved February 25, 1875, was before this court in the case of The City of Tecumseh v. Phillips, ante, 305, and was held to be unconstitutional. Formerly the title of an act was regarded as no part of it, but might be considered for the purpose of ascertaining the intention of the legislature when the body of the statute appeared to be in any respect doubtful or ambiguous. Cooley’s Con. Lim., 141. United States v. Palmer, 3 Wheat., 610" court="SCOTUS" date_filed="1818-03-14" href="https://app.midpage.ai/document/united-states-v-palmer-8373757?utm_source=webapp" opinion_id="8373757">3 Wheat., 610. Burgett v. Burgett, 1 Ohio, 480. 1 Ld. Raym., 77. But it cannot enlarge or restrain the provisions of the act itself. Hadden v. Collector, 5 Wall., 107" court="SCOTUS" date_filed="1867-02-13" href="https://app.midpage.ai/document/hadden-v-collector-87815?utm_source=webapp" opinion_id="87815">5 Wall., 107.

Section nineteen, of article two, of the constitution of 1867, provided that, “No bill shall contain more than one subject, which shall be clearly expressed in its title.” In The People v. Mahaney, 13 Mich., 494, the supreme court of Michigan in construing a similar provision in the constitution of that state, say: “The practice of bringing together into one bill subjects diverse in their nature, and having no necessary connection, with a view to combine in their favor the advocates of all, and thus secure the passage of several measures, no one of wTiich could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the state. It was scarcely more so, however, than another practice, also intended to be remedied by this provision, by which, through dexterous management, clauses were inserted in bills of which the titles gave no intimation, and their passage secured through legislative bodies whose members were not generally aware of their intention and effect.”

The object of this constitutional provision is to prevent surreptitious legislation by incorporating into bills obnoxious provisions, which have no connection with the general object of the bill and of which the title gives no indication. It will be sufficient, however, if the law have but one general object which is fairly expressed in the title of the bill. The third section of the act approved February 25, 1875, provides that “in all cases in which cities of the second class have collected and expended for the use and benefit of such cities, either in works of internal improvement or otherwise, moneys collected for licenses for the sale of intoxicating liquors, such expenditures are hereby declared to be legal, and the same is hereby ratified and confirmed, and such cities of the second class are hereby exonerated from any and all liability therefor.”

As there is nothing in the title of the act to indicate the object contemplated by section three of the act, we must hold that section to be void.

It is unnecessary to discuss the question whether the right to license an employment carries with it the right to charge a license fee therefor with a view to raising revenue. A license is issued under the police power of the city, while the exaction of a license fee for the purpose of raising revenue is an exercise of the power of taxation. How far such taxation can be sustained under the act providing for the incorporation of cities of the second class, it is unnecessary to decide, as the question does not arise in this case." For the causes assigned the judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed and remanded.