Martin v. State

• Citation: 36 N.W. 554,23 Neb. 371
• Parties: MARTIN v. STATE.
• Decision Date: 08 February 1888
• Court: Supreme Court of Nebraska

23 Neb. 371

36 N.W. 554

MARTIN

v.STATE.

Supreme Court of Nebraska.

February 8, 1888.

Syllabus by the Court.

Section 92, c. 13, Comp. St. 1887, governing cities of the first class in this state, provides that the license of a person selling intoxicating liquors shall be revoked by the mayor and council upon conviction of the licensee of any violation of any law, ordinance, or regulation appertaining to the sale of such liquors. Where the holder of a license was convicted of the violation of the law pertaining to the sale of intoxicating liquors, in the police court of the city of Lincoln, and the fact of such conviction was duly certified by the police judge to the mayor and council, it was held: First, that the mayor and council were authorized and required to revoke the license; second, that no notice to the licensee of such proposed action was necessary; third, that such revocation could be declared by resolution, and that the passage of an ordinance was not necessary.

In such case, where the resolution directed the marshal to notify the licensee that the license had been revoked by the mayor and council, there could be no presumption that the mayor was not present at such meeting, it being his official duty to preside at all meetings of the council.

Section 92, c. 13, Comp. St. 1887, held constitutional.

Error to district court, Lancaster county; FIELD, Judge.

George Martin was indicted for selling liquors without a license. Case tried upon a stipulation of facts. Judgment for the state, and defendant brings error.

MAXWELL, J., dissenting.C. E. Magoon and O. P. Mason, for plaintiff in error.

The Attorney General, for defendant in error.

REESE, C. J.

Plaintiff in error was convicted of the crime of selling intoxicating liquors in violation of law, not having a license therefor. The principal part of the evidence submitted on the trial was contained in a stipulation of facts, which we here copy:

“It is hereby stipulated and agreed by and between the parties to this action that this cause be submitted upon the following statement of facts: (1) It is agreed that the defendant, George Martin, received a license from the city of Lincoln, Nebraska, duly issued in accordance with the law, empowering him to sell liquor (commonly known as intoxicating liquor) as a beverage in said city of Lincoln, during the municipal year of 1887 and 8, and paid therefor the sum of one thousand dollars in advance, as by law required, and that said license was duly and lawfully issued. (2) That on the 22d day of June, 1887, said George Martin was convicted of the offense of selling intoxicating liquors at his place of business on the 12th day of June, 1887, that being the Sabbath day, commonly called ‘Sunday,’ which said conviction was had upon trial of said cause in the police court of said city of Lincoln by the judge of said court, without the intervention of a jury, and resulted in the conviction of said Martin, and the imposing upon him of a fine of 25 dollars and costs taxed at $16.80; that said cause of said State v. Martin was duly appealed from said police court to the district court of Lancaster county, Nebraska, and now stands for trial in said court; that afterwards, and on the 12th day of July, 1887, the city council of said city of Lincoln, without notice to the said George Martin from said council of its intended action, pretended to revoke the said license heretofore granted to the said Martin, as shown by the record of the proceedings of said council, and hereinbefore referred to, in the manner set forth in the certified statement of the proceedings of said council for said date, July 12, 1887, which is hereto attached and made a part hereof. The proceedings had, and conviction hereinbefore referred to, before the police judge of the city of Lincoln, is fully set out in a transcript hereto attached and made a part hereof, marked ‘Exhibit B,’ that at the time charged in the complaint defendant did sell and dispose of intoxicating liquor at the time and place set forth in said complaint. Lincoln, Nebraska, July 12, 1887.

The following was read:

‘ To the Hon. Mayor and Council of the City of Lincoln: I, A. F. Parsons, police judge of the city of Lincoln, hereby certify that on the 22d day of June, 1887, George Martin, a person licensed to sell malt, spirituous, and vinous liquors within this city, was convicted of the offense of selling intoxicating liquors at his place of business, in the basement under the St. Charles Hotel, on O street, near Eighth street, on the 12th day of June, 1887, it being the Sabbath day, commonly called “Sunday,” and was adjudged to pay a fine of $25 and costs, and stand committed until the same are paid, from which judgment he appealed.

Witness my hand this 27th day of June, 1887.

A. F. PARSONS, Police Judge.'

C'n Burks introduced the following:

‘Whereas, one George Martin has heretofore been licensed by the city of Lincoln to sell spirituous, malt, vinous, and mixed liquors in the city of Lincoln; and whereas, the said George Martin has been duly convicted of unlawfully selling liquors on the Sabbath day, such conviction being before the police judge of said city, as shown by the certificate of said judge now on file with the city clerk of said city: Therefore resolved, that the said license of the said George Martin, dated April 13, 1887, be, and the same is hereby, revoked, and the marshal of said city is hereby instructed to see that the saloon kept by said George Martin under said license is closed up, and the said clerk is hereby instructed to at once notify the said George Martin that his said license has been revoked by the mayor and council of the city of Lincoln.’

On motion of C'n Burks the resolution was adopted, and the license revoked on the vote: Ayes, C'n Briscoe, Brock, Burks, Dean, Graham, Hovey, Pace; noes, C'n Cooper, Ensign, Fraas; excused from voting, C'n Billingsley; absent, Dailey. (Record 7, page 71, 72.)

‘ State of Nebraska, Lancaster County--ss.: I, R. C. Manley, clerk of the city of Lincoln, hereby certify that the foregoing is a complete transcript from the record, of all that pertains to the action of the council in the matter of the revocation of the license of George Martin.

Witness my hand and the seal of said city this 2d day of August, A. D. 1887.

+-----------------------------------+
                ¦[Seal]¦R. C. MANLEY, City Clerk.' ”¦
                +-----------------------------------+
                

It will be seen by the foregoing that plaintiff in error had received a license to sell intoxicating liquors, but that his license had been revoked by the city council prior to the commission of the offense for which the indictment in this case was returned by the grand jury. There are three questions presented by plaintiff for decision. It is contended by him-- First, that the action of the council in revoking the license was without notice to the licensee, and therefore void; second, that the council did not act by ordinance as required by law, and that the resolution declaring the revocation of the license was without legal force, and void; and, third, that section 92 of chapter 13 of the Compiled Statutes, under which the council acted in the matter of the revocation of the license, is unconstitutional, and that for that reason the action of the council was void. Upon the oral argument it was further contended, that, as the section of the statute hereafter noticed, under which the council acted in the matter of revoking the license, requires the revocation to be by the “mayor and council,” the council alone could not act, and hence the attempted revocation was void for that reason. If the revocation was void for any of the reasons presented by plaintiff in error, it would follow that the conviction was erroneous, as he would still be protected by his license, notwithstanding his previous conviction of violating the law under which the license was issued. It appears by the record that a license was issued to plaintiff in error on the 13th day of April, 1887, by which he was permitted to sell intoxicating liquors until the second Tuesday in April, 1888; but that on the 22d day of June, 1887, he was convicted of selling liquor on Sunday, the 12th day of the same month. This conviction was had in the police court, and on the 27th day of June the police judge certified the conviction to the city council. At a subsequent meeting of the council, we presume, although the date is not given, the resolution revoking the license was adopted without any notice having been given to plaintiff in error of the contemplated action of the council. The section of the statute under which this action was had is section 92 of the law governing cities of the first class, (Comp. St. 1887, c. 13 a,) which is as follows:

“Sec. 92. The mayor and council may, by ordinance, license, restrain, regulate, or prohibit the selling or giving away of malt, spirituous, or vinous, mixed or fermented, intoxicating liquors, the license not to extend beyond the municipal year for which it shall be granted, and to determine the amount to be paid for such license not less than the minimum sum required by any general law upon the subject; * * * provided, that any permits issued to a druggist may be revoked by the council at pleasure; and further, that any license issued by the mayor and council for any purpose mentioned in this section shall be revoked by the mayor and council upon the conviction of the licensee of any violation of any law, ordinance, or regulation pertaining to the sale of such liquors, and proceedings of appeal or error taken to review such judgment or conviction shall in nowise affect the revocation of such license, or the effect of such conviction, until such appellate or error proceedings be finally determined, and such conviction be finally annulled, revoked, or reversed.”

It is made the duty of the mayor and council to revoke the license “upon conviction of the licensee of any violation of any...