Wood v. School District

80 Neb. 722 | Neb. | 1908

Epperson, C.

The petition filed in the district court alleged in substance that on the 1st day of May, 1905, one Simon Metz was duly licensed by the board of trustees of the village of Louisville in Cass county, Nebraska., to vend malt, spirituous, vinous and intoxicating liquors in said village, for which he paid $500 license money, which was turned over to the defendant school district. That on June 20, 1905, the said Metz died, and later the ■ plaintiff was appointed as administrator. Plaintiff prayed for judgment against the defendant for the unearned portion of the license money, to wit, $430.56. To this petition the defendant filed a general demurrer, which ivas by the court sustained. The plaintiff elected to stand on his petition, whereupon judgment of dismissal was entered, and plaintiff appeals.

Plaintiff contends that upon the death of the licensee the license was canceled by operation of law, and the administrator is entitled to recover pro tanto of the sum paid for the unexpired term of the license. Where a liquor license, has been issued by a licensing board, and on appeal canceled by the court, tlie law will permit a recovery pro tanto of the sum paid. State v. Cornwell, 12 Neb. 470; Lydick v. Korner, 15 Neb. 500; State v. Weber, 20 Neb. 467; Chamberlain v. City of Tecumseh, 43 Neb. 221; School District v. Thompson, 51 Neb. 857. The reason for the above rule seems to. be that the licensing board either had no authority to grant the license or erroneously granted the same, on account of which the license was revoked. In the case at bar the license was rightfully issued. It was not terminated by any act of the licensing board, and the rule of the cases cited is not applicable. Neither the legal representatives of a deceased licensee nor any other person, can receive the benefits of a license. It is a personal privilege granted to the licensee. It cannot be assigned, devised, or transmitted to heirs. Plaintiff argues that these are reasons for permitting a recovery herein. Upon the oral argument I was favorably impressed Avith this proposition, for the reason that it seemed fair and just that the estate of a deceased person should recover unearned license money so long as it. Avas impossible to continue the business under the license. But upon further consideration I am convinced that the law will not permit a recovery. The deceased paid the license fee voluntarily, and received all that the licensing board could give to him. The license was not rendered inoperative through any fault of the authorities. In the absence of a statute permitting it, the legal representatives of a deceased licensee cannot recover any part of the amount paid for the liquor license because of the latter’s death before the expiration of the tex*m of the license.

We recoxnmend that the judgment be affirmed.

Dtjffib and Good, GO., concur.

By the Oourt: For the reasons given in the foregoing opinion, the judgment of the district court is

Affirmed,