Bailey v. State

• Decision Date: 25 November 1890
• Citation: 30 Neb. 855,47 N.W. 208
• Parties: BAILEY v. STATE.
• Court: Nebraska Supreme Court

30 Neb. 855

47 N.W. 208

BAILEY

v.STATE.

Supreme Court of Nebraska.

Nov. 25, 1890.

Syllabus by the Court.

1. The taking of an appeal from a conviction had before a magistrate for the violation of a village ordinance is a waiver of the errors committed on the trial before such magistrate.

2. The certificate of a village clerk attached to an ordinance of the municipality, attested by his official seal, stating that such ordinance was passed and approved, and when, and in what paper, it was published, is sufficient proof of its passage, approval, and publication.

3. The board of trustees of a village has authority to enact an ordinance to prohibit the sale of intoxicating liquors within the corporate limits, and to provide, as a penalty for its violation, the imposing of a fine not to exceed $100, and for imprisonment in default of the payment of the fine and costs.

4. Where such an ordinance provides for its enforcement the imposing of a “fine of not less than twenty-five dollars nor more than one hundred dollars, or by imprisonment not exceeding thirty days, or by both fine and imprisonment,” held, that part providing for punishment by imprisonmentis void, but that it does not invalidate the remainder of the ordinance.

Error to district court, Saline county.

Hastings & McGintie, for plaintiff in error.

Abbott & Abbott, for defendant in error.

NORVAL, J.

On November 19, 1888, J. B. Dann made a written complaint, under oath, before E. J. HANCOCK, justice of the peace of the village of De Witt, Saline county, charging Charles B. Bailey, the plaintiff in error, with unlawfully selling malt and spirituous liquors to one James Liggard, in violation of ordinance No. 24 of said village. Bailey was arrested and taken before the justice, where he entered a plea of not guilty. He applied for a change of venue, which was refused. He thereupon demanded a trial by jury, which was denied. Over the defendant's objection he was tried before the justice, who found him guilty, and was sentenced to pay a fine of $100, and the costs, and that he stand committed until such fine and costs be paid. An appeal was taken to the district court, where the defendant was tried, convicted, and sentenced to pay a fine of $100, and costs. As this case was tried in the district court on appeal, the proceedings and judgment of that court alone are before us for review. The errors, if any, committed by the justice were waived by the appeal. The prosecution is brought under section 1 of ordinance No. 24 of the village of De Witt, which provides “that any person who shall, within the corporate limits of De Witt, by himself, herself, or themselves, or by his, her, or their agent, servants, clerk, or employe, barter, sell, exchange, give away, or deliver intoxicating, malt, spirituous, vinous, mixed, or fermented liquors, shall, for each offense, be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than twenty-five dollars, nor more than one hundred dollars, or be imprisoned in the county jail not to exceed thirty days, or both such fine and imprisonment.”

The first objection urged by the plaintiff in error is that there is no proof that the ordinance was ever passed. There is attached to the ordinance introduced in evidence a certificate of the village clerk, attested with the seal of the village, showing that it was adopted by a unanimous vote of the board of trustees on April 23, 1888, was signed by its chairman, and that it was published in the De Witt Times, a newspaper published in the village, for two consecutive weeks, beginning April 26, 1888. This certificate, under the provisions of section 59, c. 14, Comp. St., was sufficient proof of the passage, approval, and publication of the ordinance.

It is claimed that, as the legislature has by general law made...