OPINION
DUFFIE, C. J.
The
records in the cases above entitled disclose the following
facts: June 4, 1907, Jugenheimer filed with the
excise board of the city of Lincoln his application for
license to sell intoxicating liquors at No. 1119 P street,
and on June 5, 1907, Johnson filed a like application with
said excise board for a license to sell intoxicating liquors
at No. 319 North Ninth street. At a special meeting of the
board held on June 13, 1907, the following was adopted:
"Whereas 35 (licenses) have already been granted for the
sale at retail of spirituous, vinous and malt liquors during
this municipal year in the city of Lincoln, or about one
licensed saloon to every 1,700 of our population, therefore
be it resolved by the members of the excise board that it is
the sense of this board that no further retail licenses be
granted during this municipal year in excess of the number
already granted. Voting Aye, Harpham, Powell. Nay,
Brown." At a special meeting held July 6, 1907, the
following proceedings were had relating to the application of
Jugenheimer: "Resolved that the application of Gus A.
Jugenheimer for a saloon license at No. 1119 P street,
Lincoln, Nebraska, be, and the same is hereby, denied for the
reason that 35 retail saloon licenses have already been
issued in this city, some of which are near said location,
and, upon careful consideration of the question, we believe
that the public interest requires that no additional licenses
be granted in this city, and particularly that none be
granted at the location named for this municipal year. Voting
Aye, Harpham, Powell. Nay, Brown." A similar resolution
rejecting the application of Johnson for a license at No. 319
North Ninth street was adopted by the board. The applicants
appealed to the district court, and the court reversed the
action of the board, and ordered a license to issue to
Johnson upon his paying the city treasurer the sum of $ 1,500
required by the rules and regulations of the board as a
license fee. In the Jugenheimer case the court directed that
the case be remanded to the board for further proceedings.
From these orders of the district court, the city of Lincoln
and the excise board have appealed to this court.
From a written opinion filed by the district judge,
we quote the following: "Under the general ordinances or
rules of the excise board providing for the granting of
licenses, the courts have universally held that city
authorities have no right to make an arbitrary discretion in
granting licenses. They cannot grant the same to a favored
few, and refuse it to another, who has in all respects
complied with the ordinances and laws of the state, and who
is deemed to be a suitable person for the transaction of such
business, as it appears from the record in this case the
applicant is. Municipal corporations are mere creatures of
the legislative will, and can exercise no power except such
as the state has conferred upon them. When the city
authorities enter upon a policy of permitting traffic in
intoxicating liquors, they open the way to all persons who
are suitable under the provisions of the law to engage
therein, and all applicants must be treated alike. If the
excise board, having entered upon such policy of granting
licenses to some, can curtail the number who shall be thus
favored, such powers would be dangerous, and open the way to
greater evils than would flow from the rule of 'equal
justice to all people, and special privileges to none.'
It is possible that, at the outset of the municipal or
licensing year, had the city authorities declared a policy of
limiting the number of saloons to 35 or less, and had
permitted all persons desiring to enter into the traffic to
file their applications, and had then found some fair and
equitable way to select from the number of applicants those
the authorities deemed best fitted to engage in the business,
the law might sustain such a proceeding; but that question is
not before the court from the record presented in this
case." We have set forth so much of the opinion of the
trial judge as shows the reasons which governed him in
reversing the action of the board, both in fairness to him,
and because it fairly presents the contentions of the
applicants that, where the excise board of a municipality
adopts the policy of licensing the sale of intoxicating liquors, it has no discretion in limiting the
number who may engage in the business, but must license all
applicants who meet the requirements of our statute and the
rules of the board, however great the number may be, and
regardless of the wants of the community in that respect.
In
times not very remote little more restriction was thrown
about the business of liquor selling than about any other
business. The evils of the traffic finally became so
pronounced that it presented to the legislature the problem
of satisfying the demands for the sale of intoxicants, and at
the same time minimizing the well-understood evils of the
traffic. In the leading case of Pleuler v. State, 11
Neb. 547, 10 N.W. 481, Judge LAKE, in discussing this
question, said: "The leading motive of the legislature
in enacting the law could not have been the raising of
revenue, but rather to thoroughly regulate, and as far as
practicable suppress a traffic, the tendency of which was
believed to be productive of pauperism, vice, misery, and
crime, to the great injury of the people of the state at
large, and especially of the particular locality where it is
carried on." The solution made by the legislature is
found in the provisions of the Slocumb law (Ann. St. 1907
secs. 7150-7199a) which makes the sale of intoxicating
liquors unlawful by any person not licensed to conduct the
business. We start out, therefore, with the facts before us
that, until a party has secured a license, he has no right to
engage in the sale of intoxicating liquors, and that no one
has an absolute right to a license, but must submit his claim
therefor to the judgment and discretion
of the excise board. The rights of the citizens in this
respect are so well set forth by Mr. Justice Field in
Crowley v. Christensen, 137 U.S. 86, 34 L.Ed. 620,
11 S.Ct. 13, that we quote somewhat at length from the
opinion in that case: "It is undoubtedly true that it is
the right of every citizen of the United States to pursue any
lawful trade or business, under such restrictions as are
imposed upon all persons of the same age, sex and condition.
But the possession and enjoyment of all rights
are subject to such reason able conditions as may be deemed
by the governing authority of the country essential to the
safety, health, peace, good order and morals of the
community. Even liberty itself, the greatest of all rights,
is not unrestricted license to act according to one's own
will. It is only freedom from restraint under conditions
essential to the equal enjoyment of the same right by others.
It is then liberty regulated by law. The right to acquire,
enjoy and dispose of property is declared in the
constitutions of several states to be one of the inalienable
rights of man. But this declaration is not held to preclude
the legislature of any state from passing laws respecting the
acquisition, enjoyment and disposition of property. What
contracts respecting its acquisition and disposition shall be
valid, and what void or voidable; when they shall be in
writing and when they may be made orally; and by what
instruments it may be conveyed or mortgaged are subjects of
constant legislation. And, as to the enjoyment of property,
the rule is general that it must be accompanied with such
limitations as will not impair the equal enjoyment by others
of their property. Sic utere tuo ut alienum non
laedas is a maxim of universal application. For the
pursuit of any lawful trade or business, the law imposes
similar conditions. Regulations respecting them are almost
infinite, varying with the nature of the business. Some
occupations by the noise made in their pursuit, some by the
odors they engender, and some by the dangers accompanying
them, require regulations as to the locality in which they
shall be conducted. Some by the dangerous character of the
articles used, manufactured or sold require, also, special
qualifications in the parties permitted to use, manufacture
or sell them. All this is but common knowledge, and would
hardly be mentioned were it not for the position often taken,
and vehemently pressed, that there is something wrong in
principle and objectionable in similar restrictions when
applied to the business of selling by retail, in small
quantities, spirituous and intoxicating
liquors. It is urged that, as the liquors are used as a
beverage, and the injury following them, if taken in excess,
is voluntarily inflicted and is confined to the party
offending, their sale should be without restrictions, the
contention being that what a man shall drink, equally with
what he shall eat, is not properly matter for legislation.
There is in this position an assumption of a fact which does
not exist, that when the liquors are taken in excess the
injuries are confined to the party offending. The injury, it
is true, first falls upon him in his health, which the habit
undermines; in his morals, which it weakens; and in the
self-abasement, which it creates. ...
