Bodkin v. State
| Decision Date | 08 April 1937 |
| Docket Number | 29918. |
| Citation | 272 N.W. 547,132 Neb. 535 |
| Parties | BODKIN v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Government has an interest in the welfare of minors, as public wards, and the state and the city of Lincoln have power to adopt consistent regulations to protect them from the sale of intoxicating liquors.
2. It is the duty of the courts to harmonize state and municipal legislation, if permissible in view of all legislative enactments on the same subject.
3. In testing the validity of a city ordinance challenged as " inconsistent" with a state statute, that word should be defined to mean contradictory in the sense that the two legislative provisions cannot coexist, not mere lack of uniformity in detail.
4. A city ordinance prohibiting the sale of intoxicating liquor to minors is not void as being " inconsistent" with a state statute prohibiting the sale of intoxicating liquor to minors knowing them to be such.
Appeal from District Court, Lancaster County; Chappell, Judge.
A. R Bodkin was convicted of selling intoxicating liquors to a minor in violation of a city ordinance, and he brings error.
Affirmed.
Bruce Fullerton, of Lincoln, for plaintiff in error.
Loren H. Laughlin and George A. Piper, both of Lincoln, for the State.
Heard before GOSS, C. J., and ROSE, GOOD, EBERLY DAY, PAINE, and CARTER, JJ.
In a prosecution by the state in the municipal court of the city of Lincoln, A. R. Bodkin, defendant, was convicted of selling intoxicating liquor to a minor in violation of a city ordinance. Upon appeal to the district court he was found guilty of the same offense and sentenced therefor. The record of his conviction was presented to the supreme court for review.
In an elaborate brief and in an oral argument at the bar the sentence of the district court was challenged as erroneous on the asserted ground that the ordinance under which defendant was convicted is invalid as being inconsistent with provisions of the Constitution and state statutes. The ordinance assailed provides:
" No person shall, within the city, sell or give any alcoholic liquors to, or procure any such liquor for, or permit the sale or gift of any such liquor to, or the procuring of any such liquor for, any minor or any person who is mentally incompetent or any person who is physically or mentally incapacitated due to the consumption of such liquors." Municipal Code, 1936, sec. 19-203.
The state statute on the same subject reads thus:
" No person, who holds a license to sell alcoholic liquors as a retailer, manufacturer or distributor, shall permit the sale or gift to, or procuring for, any such liquors to any minors, to any person who is mentally incompetent, or to any person who is physically or mentally incapacitated due to the consumption of such liquors, knowing them to be such." Comp.St.Supp.1935, § 53-338.
The city of Lincoln is governed by a home rule charter adopted under a constitutional grant which permitted it to " frame a charter for its own government, consistent with and subject to the constitution and laws of this state." Const. art. 11, § 2. The home rule charter itself grants municipal power " to make all such ordinances, by-laws rules and regulations not inconsistent with the laws of the state as may be expedient, in addition to the special...
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