Caldwell v. City of Lincoln

• Decision Date: 14 April 1886
• Citation: 27 N.W. 647,19 Neb. 569
• Parties: JAMES L. CALDWELL, PLAINTIFF IN ERROR, v. THE CITY OF LINCOLN, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

27 N.W. 647

19 Neb. 569

JAMES L. CALDWELL, PLAINTIFF IN ERROR, v. THE CITY OF LINCOLN, DEFENDANT IN ERROR

Supreme Court of Nebraska

April 14, 1886

ERROR to the district court for Lancaster county. Tried below before POUND and MITCHELL, J.J.

REVERSED AND REMANDED.

J. L Caldwell, pro se.

A. W Field, for defendant in error.

OPINION

MAXWELL, CH. J.

This action is brought by the plaintiff as assignee of one John Waugh, to recover from the defendant the sum of $ 120, paid under protest for license tax unlawfully exacted. The defendant demurred to the petition and the demurrer was sustained in the court below and the action dismissed. The following is a copy of the petition:

"The plaintiff complains of the defendant and says the defendant is a city of the 2d class, duly organized under the laws of Nebraska, and had on November 20th, A.D. 1883, more than ten thousand inhabitants.

"That in the month of November, A.D. 1883, the mayor and councilmen of the said city of Lincoln pretended to pass, and on November 20th passed, and on November 30th, 1883, approved a certain pretended paper or ordinance in writing, and have caused the same to be published as a valid ordinance of the said city of Lincoln on page 78, Revised Ordinances of 1884 and have instructed their police officers to enforce its provisions, which said ordinance reads as follows, to-wit:

"AN ORDINANCE

"To provide for licensing the sale of bankrupt or other stocks of goods, wares, or merchandise, to be sold or exposed for sale at auction, within the corporate limits of the city of Lincoln.

"Be it ordained by the mayor and councilmen of the city of Lincoln:

"Section 1. Unlawful to sell without license. It shall be unlawful for any person or persons to sell or expose for sale at public or private auction in the city of Lincoln, any bankrupt or other stock of goods, wares, or merchandise of any character whatever, or for any person or persons, or commission merchants to receive any such stock of goods, wares, or merchandise for the purpose of selling or exposing the same for sale within the limits of said city at public or private auction, without having first procured a license so to do, which said license shall be issued by the clerk of said city on presentation of the receipt of the city treasurer for money paid as provided in section two hereof. Said license shall be signed by the mayor and clerk and be attested by the seal of said city. Provided, That the provisions of this act shall not apply to live stock.

"Section 2.--Cost of temporary license.--Any person desiring to conduct the business of selling at auction in the city of Lincoln, any bankrupt or other stock of goods, wares, or merchandise, shall first pay to the city treasurer the sum of twelve dollars for each day said business shall be carried on. Provided, No license shall be granted for a shorter time than ten days.

"Section 3.--What license shall specify.--Every such license shall specify the character of the goods to be sold and the place where said business is to be carried on.

"Section 4.--Licensee cannot act as auctioneer.--The license obtained under this ordinance shall not authorize the holder thereof to act as auctioneer.

"Section 5.--Penalty.--Any person who shall violate any of the provisions of this ordinance, shall for each offense be fined in any sum not less than fifty dollars, nor more than one hundred dollars, and to be committed until said fine and costs are paid.

"Section 6.--Ordinances repealed.--All ordinances and parts of ordinances in conflict herewith are hereby repealed, and this ordinance shall take effect and be in force from and after its passage, approval, and publication according to law.

"Passed November 26, 1883. Approved November 30, 1883.

"That on the 13th day of December, 1883, one John Waugh was the owner of a stock of goods in Webster's block in the city of Lincoln. That said stock of goods had been opened up and offered for sale since November 1, 1883; at retail prior to November 26, 1883. And that a few days prior to that date said owner decided to close out the said stock of goods at public auction to pay debts then past due. That after and before the commencement of the said auction sales, a number of retail dealers in fancy goods and notions conspired together to prohibit the said auction sale, and all auction sales in said city, and went before the said mayor and councilmen and requested and procured the passage of said pretended ordinance.

"That the police officers of said city of Lincoln, acting under the instructions of the mayor and council of said city, on the 13th day of December, 1883, while the said owner was proceeding with his sale with a duly licensed auctioneer of the said city, went into the store and commanded him to stop the sale or take out a license or they would arrest him, and declared the auction sale closed until a license was procured as provided by the terms of said pretended ordinance.

"That to avoid the entire loss of the remaining portion of said stock of goods, the said owner deposited under protest one hundred and twenty (120) dollars with the treasurer of said city and caused to be written on the face of the receipt "Paid under protest." That he presented said receipt to the city clerk of Lincoln and was given a paper writing of license in the words and figures following, to-wit:

"Having paid the sum of one hundred and twenty dollars, the amount required by ordinance, license is hereby granted to John Waugh, to sell general merchandise at Webster's block, 11th st., bet. N and M, in said city, for 10 days, subject to the ordinance of said city.

[L. S.]

R. C. MANLEY,

City Clerk.

Dated Dec. 13th, 1883.

"(Endorsed.) In consideration of one hundred and twenty dollars I hereby assign the claim of $ 120 which I have against the city of Lincoln, Lancaster county, Nebraska, to W. J. Houston.

"JOHN WAUGH.

"I assign this to J. L. Caldwell.

"W. J. HOUSTON."

"Filed January 30, 1885.

"Recommended not allowed by city attorney, and his recommendation adopted March 16th, 1885.

"R. C. MANLEY,

"City Clerk.

"That J. L....