Hunzinger v. State

• Decision Date: 06 March 1894
• Citation: 39 Neb. 653,58 N.W. 194
• Parties: HUNZINGER v. STATE.
• Court: Nebraska Supreme Court

39 Neb. 653

58 N.W. 194

HUNZINGER

v.STATE.

Supreme Court of Nebraska.

March 6, 1894.

Syllabus by the Court.

1. The proviso in section 1, c. 50, Comp. St. 1893, “provided such [[[county] board shall not have power to issue any license for the sale of any liquors in any city or incorporated village or within two miles of the same,” is not obnoxious to any provision of the constitution, because the inhabitants living within two miles of the corporate limits of the cities and villages of the state situated in counties not having 150,000inhabitants are, by such proviso, deprived of the privilege of having the sale of liquors licensed within their territory. Pleuler v. State, 10 N. W. 481, 11 Neb. 547, reaffirmed.

2. The legislature, in the exercise of the police power of the state, may not only control the license and sale of intoxicating liquors therein, but may entirely prohibit such license and sale.

3. The proviso in said section 1 in said chapter 50, “provided in counties having 150,000 inhabitants the county commissioners may also issue licenses within two miles of any city in said county,” is not obnoxious to section 15 of article 3 of the constitution, as assuming to “regulate county and township offices;” nor is said proviso obnoxious to said constitutional provision as class or special legislation.

4. An act of the legislature will not be declared special legislation, within the meaning of the constitution, solely because at the time of its enactment there was only one county in the state to which its provisions were applicable. If the law is general in its terms, and restricted by its terms to no particular locality, and operates equally upon all of a group of objects, it is not a special law. McClay v. City of Lincoln, 49 N. W. 282, 32 Neb. 412, followed.

5. To an indictment for selling liquors in this state without a license it is no defense that such sale was made at a time or place, or under circumstances, which rendered the procurement of a license impossible.

Error to district court, Douglas county; Herbert J. Davis, Judge.

Fred Hunzinger was convicted of selling intoxicating liquors unlawfully, and brings error. Affirmed.

M. V. Gannon, for plaintiff in error.

Geo. H. Hastings, Atty. Gen., for the State.

RAGAN, C.

Fred Hunzinger was indicted in the district court of Douglas county for selling intoxicating liquors without having first procured any license therefor. Hunzinger pleaded guilty to the indictment, and the state put on record an admission that the sale was made within two miles of the corporate limits of the city of Omaha, in said county, but not within the limits of any incorporated city or village. Hunzinger then filed a motion in arrest of judgment, alleging that the statute on which the indictment was predicated was unconstitutional. The court overruled this motion, and sentenced Hunzinger to pay a fine of $300, and costs, from which judgment Hunzinger comes here on error.

Section 1, c. 50, Comp. St. 1893, provides: “The county board of each county may grant license for the sale of malt, spirituous and vinous liquors if deemed expedient * * * provided; such board shall not have power to issue any license for the sale of any liquors in any city or incorporated village, or within two miles of the same; provided in counties having 150,000 inhabitants the county commissioners may also issue licenses within two miles of any city within said county.” The provisions in the section just quoted are the ones said to be obnoxious to the constitution. The contention is that the second proviso is obnoxious to article 3, § 15, which provides that the legislature shall not pass special or local laws in certain named cases. It is argued that the second proviso of the section is special legislation, within the meaning of the constitution quoted above, as it assumes to regulate county and township offices. We are cited to no authority to support this contention, nor do we think any could be found. It must suffice to say that, in our opinion, the proviso of the statute is not obnoxious to the constitutional provision above quoted on that ground. Another objection to this second proviso is that by its terms it applies, and can only apply, to Douglas county, and for that reason is special or class legislation. In McClay v. City of Lincoln, 32 Neb. 412, 49 N. W. 282, a law which exempted cities of the state from giving an appeal bond in actions appealed by them from the courts was held not to be obnoxious to the constitutional provision above, as being special legislation; the court holding that a law framed in general terms, restricted to no locality, and operating equally upon all of a group of objects, was not a special law. In State v. Graham, 16 Neb. 74, 19 N. W. 470, this court held that classification of the cities of the state into classes and subclasses, and the conferring upon them of powers of a general nature by act of the legislature, the provisions of which act were applicable to but one of such classes or subclasses of cities, was not repugnant to any provision of the...