Calvary Baptist Church v. Coonrad, 33960

Decision Date29 June 1956
Docket NumberNo. 33960,33960
Citation163 Neb. 25,77 N.W.2d 821
PartiesCALVARY BAPTIST CHURCH, a Corporation, Appellant, v. Tal COONRAD, Nathan B. Pont, and Carl E. Linn, Members of the Nebraska Liquor Control Commission, et al., Appellees.
CourtNebraska Supreme Court

Syllabus by the Court.

1. The plain, ordinary, and popular meaning of the word 'church' is a building in which people assemble for the worship of God and for the administration of such offices and services as pertain to that worship.

2. The distance required by section 53-177, R.R.S.1943, between a church and a place where it is proposed it sell intoxicating liquor at retail should be determined by measuring in a straight line between the nearest walls of the two buildings.

Viren, Emmert & Hilmes, G. M. Gunderson, Omaha, for appellant.

Clarence S. Beck, Atty. Gen., H. G. Hamilton, John H. Binning, Asst. Attys. Gen., Chambers, Holland, Groth, Dudgeon & Hastings, Lincoln, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiff, Calvary Baptist Church, a corporation, brought this action against defendants, Nebraska Liquor Control Commission, its named members, Francis J. Willy and John R. McCormack, doing business as Willy Drug, and Willy Drug, seeking to obtain a declaratory judgment interpreting and applying part of section 53-177, R.R.S.1943. For brevity, the Nebraska Liquor Control Commission and its members will hereinafter be designated as the commission, and all other defendants as Willy Drug.

The purpose of the action was to determine: (1) Whether, as contended by plaintiff, the measurement required by such section with relation to the issue of a license to sell alcoholic liquors at retail should be made by measuring in a straight line between the nearest lot line of real property belonging to plaintiff and the nearest lot line of real property occupied by Willy Drug where an off-sale package beer and liquor license had been issued to it; or (2) whether, as contended by defendants, such measurement should be made in a straight line between the nearest will of plaintiff's church building and the nearest will of the building occupied by Willy Drug, as construed and applied by the commission. Plaintiff prayed for cancellation of defendant Willy Drug's license if the first above-cited formula were found to be correct, and for equitable relief.

Defendant commission and its members answered plaintiff's petition, denying generally, and after admitting that they had issued such a license to Willy Drug, they then alleged that it was in conformity with action taken in prior comparable cases, and denied that such action was in violation of section 53-177, R.R.S.1943. They prayed for dismissal of plaintiff's action and equitable relief. All other defendants filed comparable answers and prayed for like relief. Plaintiff's reply was in the nature of a general denial.

After a hearing on the merits, whereat evidence was adduced by the parties, the trial court rendered judgment finding and adjudging the issues generally in favor of defendants and against plaintiff, whose action was dismissed at plaintiff's costs. Thereafter, plaintiff's motion for new trial was overruled, and it appealed, assigning that the judgment was not supported by the law and evidence, and that the trial court erred in excluding certain offered evidence. We conclude that the assignments should not be sustained.

The relevant part of section 53-177, R.R.S.1943, here involved, was originally enacted by Laws 1935, c. 116, § 35, p. 399. Such section was subsequently amended by Laws 1947, c. 189, § 2, p. 626, without in any manner or form changing or amending the provisions here involved, which state that: 'No license shall be issued for the sale at retail of any alcoholic liquor within one hundred and fifty feet of any church * * *. No alcoholic liquor, other than beer, shall be sold for consumption on the premises within three hundred feet from the campus of any college or university in the state.' (Italics supplied.)

The relevant and material evidence is not in dispute. Summarized, it is as follows: The Willy Drug store was formerly located on the northwest corner of Fortieth and Cuming Streets in Omaha, where it had an off-sale package beer and liquor license. There Cuming Street was subsequently divided by making it a radial highway, and Willy Drug was forced to relocate. It then obtained the right to occupy the southeast corner of Fortieth and Cuming Streets, and moved into a building there known as 3923 Cuming Street, located at the west end of the block on the north and west portion of Lot 6, where Willy Drug was issued a permissive change of address for its off-sale package beer and liquor license.

Plaintiff's church, known as 3903 Cuming Street, and fronting north thereon, is located partly on Lot 1 and partly on Lot 2. Such church is located on the southwest corner of Thirty-ninth and Cuming Streets at the east end of the same block in which Willy Drug is located. Plaintiff also owned Lot 3. Its east line is 14 feet from the west wall of plaintiff's church building. Adjacent to Lot 3 on the west is the Blackburn Pharmacy property and its building. Extending on west of Blackburn Pharmacy, hereinafter called Blackburn, there are four business establishments between it and Willy Drug, which left five business establishments, a parking lot, and plaintiff's lawn between Willy Drug and the west wall of plaintiff's church building.

In that connection, on January 1, 1946, plaintiff had leased the west 40 feet of Lot 3 to Blackburn as a parking lot for the use of its customers, with a right of plaintiff's church attendants and others to use same. Thereafter, on April 30, 1955, well knowing that this case would be tried on the merits May 4, 1955, plaintiff and Blackburn cancelled such lease by written agreement purportedly in order to give plaintiff control of the parking lot, but at time of trial there never had in fact been any change in the use of it. Such parking lot had been graded and black-topped at the expense of Blackburn. There was a fence and hedge running north and south on Lot 3 at the east line of the parking lot just 24 feet west of the west wall of plaintiff's church, which entirely separated the parking lot from the church and its lawn.

Concededly, in that situation it was 210 feet in a straight line from the nearest east wall of Willy Drug to the nearest west wall of plaintiff's church. It was 196 feet in a straight line from the nearest east wall of Willy Drug to the nearest west line of Lot 2, one of the lots upon which plaintiff's church was located. It was 186 feet in a straight line from the nearest east will of Willy Drug to the fence and hedge marking the east edge of the parking lot on Lot 3, between Blackburn and plaintiff's church. It was also 146 feet in a straight line from the nearest east wall of Willy Drug to the nearest west line of such parking lot owned by plaintiff and leased to or used by Blackburn, its customers, and others. In such a situation, plaintiff contended that Willy Drug was less than 150 feet from plaintiff's church. We do not agree.

The answer depends upon the plain, ordinary, and popular meaning of the word 'church' in order to determine whether the measurement required by section 53-177, R.R.S.1943, should be made by a straight line between the nearest east wall of Willy Drug and the nearest west line of Lot 3 owned by plaintiff, or by a straight line between the nearest east wall of Willy Drug and the nearest west wall of plaintiff's church...

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9 cases
  • Phelps-Roper v. Heineman
    • United States
    • U.S. District Court — District of Nebraska
    • October 29, 2014
    ...place of worship. However, as this Court previously observed, the Nebraska Supreme Court's decision in Calvary Baptist Church v. Coonrad, 163 Neb. 25, 77 N.W.2d 821, 825 (1956), suggests that the NFPL is capable of a definitive interpretation. Phelps–Roper has not demonstrated that the Cour......
  • Phelps-roper v. Heineman
    • United States
    • U.S. District Court — District of Nebraska
    • June 21, 2010
    ...should be determined “by measuring in a straight line from the nearest walls of the two buildings.” Calvary Baptist Church v. Coonrad, 163 Neb. 25, 77 N.W.2d 821, 825 (1956). The NFPL presents a comparable measurement. As noted above, to show overbreadth a plaintiff must establish that the ......
  • Hafeman v. Gem Oil Co., s. 34017
    • United States
    • Nebraska Supreme Court
    • December 28, 1956
    ...of expressio unius est exclusio alterius applies. Ledwith v. Bankers Life Ins. Co., 156 Neb. 107, 54 N.W.2d 409; Calvary Baptist Church v. Coonrad, 163 Neb. 25, 77 N.W.2d 821; Southern Coast Corp. v. Sinclair Refining Co., 5 Cir., 181 F.2d 960; Bischoff v. Francesa, 133 W.Va. 474, 56 S.E.2d......
  • State v. Vogenthaler
    • United States
    • Court of Appeals of New Mexico
    • March 9, 1976
    ...has also been defined in terms of a place; that is, an edifice where persons regularly assemble for worship. Calvary Baptist Church v. Coonrad, 163 Neb. 25, 77 N.W.2d 821 (1956); Williams v. Williams, 215 N.C. 739, 3 S.E.2d 334 (1939); Foster v. Harding, 426 P.2d 355 (Okl.1967); Stubbs v. T......
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