Barrett v. Rickard

• Decision Date: 05 January 1910
• Docket Number: 16,337
• Citation: Barrett v. Rickard, 85 Neb. 769, 124 N. W. 153 (Neb. 1910)
• Parties: ROBERT BARRETT, APPELLANT, v. F. J. RICKARD, APPELLEE
• Court: Nebraska Supreme Court

124 N.W. 153

85 Neb. 769

ROBERT BARRETT, APPELLANT, v. F. J. RICKARD, APPELLEE

No. 16,337

Supreme Court of Nebraska

January 5, 1910

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed.

AFFIRMED.

E. J Murfin, T. J. Doyle and G. L. De Lacy, for appellant.

J. M Stewart, T. F. A. Willams, C. C. Flansburg and L. A. Flansburg, contra.

OPINION

DEAN, J.

This is a habeas corpus proceeding brought here for review from the district court for Lancaster county. The record, in substance, discloses that on August 3, 1909, Robert Barrett, defendant, was in the employ of a firm engaged in a general drayage business at Havelock, such as the hauling for hire of goods, wares and merchandise. On that date, as such employee, he delivered a case of beer within the corporate limits of Lincoln at the residence of a purchaser who bought it from a regularly licensed dealer in malt, spirituous and vinous liquors at Havelock, a city of less than 5,000 population, and located about five miles distant from Lincoln. When the beer was delivered by the defendant, he was arrested by F. J. Rickard, chief of police of the latter city, on the ground that such delivery was in violation of rule 12 of the excise board of the city. The defendant brought this action in the district court, alleging the invalidity of rule 12, and consequent unlawful arrest. Upon the hearing the trial court denied the relief prayed for by defendant and remanded him to the custody of the law officers. From that judgment he has brought the case here for review. Rule 12 of the excise board is as follows: "It shall be unlawful for any railroad company, express company, or other common carrier, or agent, officer or other representative of any such common carrier, to make delivery to any person of intoxicating liquors within said city at any other point than the principal and usual place of business of said common carrier therein; and every common carrier bringing malt, spirituous or vinous liquors into said city shall be required to establish one definite place of business therein at which all deliveries of such liquors shall be made to bona fide consignees thereof in person only." The above rule was established in pursuance of the following provisions contained in section 7963, Ann. St. 1909: "The excise board shall have the exclusive control of the licensing and regulating of the sale of malt, spirituous, vinous, or intoxicating liquors in such city, and for that purpose shall hold a public session at least once each month at the council chamber in said city, and a record of its proceedings shall be made and kept as a public record by the city clerk, who shall be clerk of said board. A majority of such board shall constitute a quorum. The excise board may license, regulate, or prohibit the selling or giving of malt, spirituous or vinous, mixed or fermented intoxicating liquors in said city, * * * and 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 fines and costs are paid. * * * The excise board shall also make all needful rules and regulations not inconsistent with the laws of this state for the control of places at which malt, spirituous, vinous, or intoxicating liquors may be sold in said city; and 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 ordinances of said city adopted by the city council thereof, and shall be proved in like manner. The excise board when in session shall have the same power to issue subpoenas and compel the attendance of witnesses and compel them to testify concerning matter pending before them, as a justice of the peace has on an examination before him; and the president of the board or presiding member for the time being shall have the same power as such justice to administer oaths and affirmations. All subpoenas, commitments, and other processes shall be signed by the president or presiding officer for the time being of the board and countersigned by the city clerk. The excise board shall have power and it shall be their duty to appoint a chief of police and such number of policemen and other officers as may be necessary to police the city, and protect persons and property and maintain peace and good order. * * * The mayor of the city shall be member ex officio of the excise board and chairman thereof."

The parties to this action entered into a stipulation containing, among others, the following: "The sole contention of the state is, and the sole question submitted in this case, that, under the provision of rule 12 of the excise board of the city of Lincoln, the defendants as common carriers were prohibited from delivering said beer, or any beer, to the residence of any citizen of Lincoln." Defendant contends that he should not be held to answer under the rule of the excise board here in question because, as he alleges, it deals solely with the subject of transportation, and not with the sale of intoxicating liquors, and he argues that the board exceeded its authority in the adoption of the rule, and that in so doing it usurped the province of the mayor and council of the city. In support of his contention he invokes the provisions of sections 7908, 8028, 8036, ch. 37, Ann. St. 1909, commonly known as the Lincoln charter, and also cites numerous authorities. Reference is likewise made in his brief to sections 7189, 7190, 7191, Ann. St. 1909, the latter sections of the statute having to do with the subject matter of transportation of intoxicating liquors. We do not believe defendant's contention can be sustained; and, with such brevity as a proper discussion of the facts and the law seem to permit, we submit the reasons for our decision.

The right of the legislature to clothe the city with power to adopt the rule in question is derived from that undefined branch of government known as the police power, which by some writers is said to bear the same relation to the municipality that the principle of self-defense bears to the individual. An analysis of the statute conferring on the excise board authority to establish rules for the purposes therein mentioned, when considered in connection with the facts in the present case, convinces us that, in the establishment of rule 12, the board was properly within the limits contemplated by the statute which created it and gave to it its powers. The court takes judicial notice of the fact that the city of Lincoln has a population of about 60,000 people, and that on the date when defendant was arrested the city did not have an open saloon for the sale of malt spirituous and vinous liquors within its borders, the majority of its voting population having at the last preceding election declared that no license should be issued for the ensuing fiscal...