Ex parte Wolf

• Decision Date: 03 January 1883
• Citation: 14 N.W. 660,14 Neb. 24
• Parties: EX PARTE WOLF.
• Court: Nebraska Supreme Court

14 Neb. 24

14 N.W. 660

EX PARTE WOLF.

Supreme Court of Nebraska.

Filed January 3, 1883.

Original application for writ of habeas corpus.

J. L. Caldwell, for petitioner.

W. R. Kelley and A. C. Picketts, contra.

MAXWELL, J.

The petitioner is a licensed saloon-keeper in the city of Lincoln, and alleges that he is unlawfully deprived of his liberty by the jailer of that city. In April, 1882, the mayor and council of the city of Lincoln passed an ordinance as follows:

“It shall be unlawful for any person under this ordinance, whether by himself or his clerk, to sell or give away any intoxicating, malt, spirituous, vinous, mixed, or fermented liquors to any minor under the age of 21 years, or to any Indian, idiot, insane person, or habitual drunkard; or to keep open, or to vend, sell, or give away any malt, spirituous, vinous, or fermented liquors in his place of business on the day of any general or special election held in said city of Lincoln, or after the hour of 10 o'clock P. M., and on any day before the hour of 5 o'clock A. M. on the following day, or after the hour of 10 o'clock P. M. on Saturday and before the hour of 5 o'clock A. M. of the following Monday; and every such person to whom a license shall be granted, as aforesaid, shall keep his bar or place of vending such liquors in the front room, nearest the principal street of the building, to be designated in such license as the place where such vending and giving away may take place, and shall keep such bar or place of vending such liquors at all times exposed to the street, and the view thereof from the street upon which such building fronts, and also of the whole inner side of the rear wall of such room, wholly unobstructed by screens, temporary partitions, paint, frosting, curtains, or any other obstacle from such street; and shall allow or permit no gambling or gaming in any room, cabin, or subdivision of any room in or connected with the room in which said bar is kept, or in any other place, cellar, outhouse, or other place over which the person having such license shall have any control or authority; and all the conditions and regulations of this section shall be plainly written or printed in every license so granted, in addition to such as are contained in the form prescribed in section 8 of this ordinance. And whosoever shall be convicted of any violation of the provisions of this section shall be fined in any sum not less than $10, nor more than $100, and costs of prosecution, and stand committed to the city jail until such fine and costs shall be paid; and said section, as heretofore existing, is hereby repealed.

Sec. 2. This ordinance shall take effect and be in force from and after its passage and publication according to law.

Passed April 11, 1882. Approved April 11, 1882.

JOHN DOOLITTLE, Mayor.

Attest: R. C. MANLEY, City Clerk.”

The petitioner kept his saloon open later than 10 o'clock P. M., and was tried and convicted of the offense, and sentenced to pay a fine of $25 and costs, and to stand committed until the same was paid. Having failed to pay the fine he was committed to jail, from which he now asks to be discharged on habeas corpus. It is contended, on behalf of the petitioner, that the ordinance in question is void for want of a sufficient call, signed by the mayor or any three councilmen, stating the object of the special meeting at which it was passed. The following is the record of the proceedings of the council:

“LINCOLN, NEBRASKA, April 10, 1882.

Council met. Present, Mayor Wright, Cm. Doolittle, Grimes, Harley, Linderman, and Munson. Councilmen-elect Baum, Krone, and Shaberg were sworn in by the city clerk. Mayor Wright administered the oath of office to John Doolittle, mayor-elect. Council adjourned, and Mayor Doolittle called the new council to order. Present, Cm. Baum, Harley, Krone, Linderman, Munson, and Shaberg. The matter of remonstrance of H. W. Hardy et al. against the granting of liquor licenses to H. W. Waltemade et al. came up. Mr. Scott, for the protestants, asked further time. Attorneys Billingsley and Kelly asked immediate consideration. On motion of Cm. Munson, Tuesday afternoon, at -- P. M., was set to hear the case in issue, and the clerk was instructed to issue subpœnas, etc. * * * Council adjourned.

LINCOLN, NEBRASKA, April 11, 1882.

Adjourned session. Council met. Present, Mayor Doolittle, Cm. Baum, Harley, Krone, Linderman, Munson, and Shaberg. On motion, the reading of minutes of last meeting was dispensed with. Business was taken up under order of unfinished business. On motion Cm. Linderman, the testimony in case of remonstrances against applicants for liquor license, if testimony should be heard, was authorized to be taken by a short-hand reporter. On motion Cm. Munson applications and bonds for liquor license and the remonstrances were read. Mr. N. S. Scott, for the committee, stated that negotiations were pending looking towards a withdrawal of the remonstrance, and upon his suggestion council took a recess for a few minutes. When council came to order again the petition of H. Waltemade was taken up. L. W. Billingsley, attorney for applicants, stated that the parties in interest had agreed to a settlement on the following basis: Remonstrators withdrawing their protest, applicants agreeing to an ordinance causing saloons to be closed at 10 P. M., and the removal of all curtains, screens, painted or frosted windows and doors, and all other obstructions to view from the street. On motion of Cm. Munson adjourned to meet immediately in special session to consider said ordinance and pass upon applications. Ayes--Cm. Baum, Harley, Krone, Linderman, Munson and Shaberg. Adjourned.

R. C. MANLEY, City Clerk.

LINCOLN, NEBRASKA, April 11, 1882.

Council met immediately in special session. Present, Mayor Doolittle, Cm. Baum, Harley, Krone, Linderman, Munson, and Shaberg, for purpose as stated above. Cm. Harley presented an ordinance to amend section 9 of an ordinance entitled ‘An ordinance to license and regulate the sale and giving away of any malt, spirituous, or vinous liquors in the city of Lincoln. Approved November 22, 1881.’ The ordinance was read first time. On motion Cm. Baum the rules were suspended. Ayes--Cm. Baum, Harley, Krone, Linderman, Munson, and Shaberg. The ordinance was read second and third times by title, and declared passed on the vote. Ayes--Cm. Baum, Harley, Krone, Linderman, Munson, and Shaberg.”

It is said that as the council adjourned on the tenth of April, until the eleventh, for the purpose of hearing the remonstrances against granting a license to Waltemade, and the clerk was instructed to issue subpœnas for witnesses, and that the council thereafter adjourned, that at the adjourned meeting they were restricted to the business of hearing remonstrances. In other words, that the council, having adjourned for the purpose of considering and disposing of special business, had no authority to transact any other business than such as they had designated for...