Rohrer v. Hastings Brewing Company
| Decision Date | 17 December 1908 |
| Docket Number | 15,704 |
| Citation | 119 N.W. 27,83 Neb. 111 |
| Parties | W. S. ROHRER, APPELLANT, v. HASTINGS BREWING COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Adams county: GEORGE F. CORCORAN JUDGE. Affirmed.
AFFIRMED.
J. W James and R. A. Batty, for appellant.
Tibbets Morey & Fuller and W. F. Button, contra.
John C. Cowin, L. D. Holmes, Isidor Ziegler and Rich, O'Neill & Gilbert, amici curiae.
ROOT, C. FAWCETT and CALKINS, CC., concur.
Hastings is a city of the second class having more than 5,000 and less than 25,000 inhabitants. The Hastings Brewing Company is a local corporation, and in April of this year it applied to the council of said city for license to vend intoxicating liquors. The petitioners alleged "that said company and its officers are all of respectable character and standing and bona fide residents of said city and state." Defendant filed objections to the granting of said license, but, upon the hearing before the council, stipulated with the applicant that all of the objections specified in the remonstrance should be waived, except the following: "Under the laws of the state and the ordinances of the city, can a liquor license be legally issued to a corporation?" Remonstrant also reserved the right to deny the authority of the mayor to cast a deciding vote in case of a tie vote of the council in said proceedings. Four councilmen voted "aye" and four "nay" upon every motion relating to said remonstrance and application, and in each instance the mayor voted in favor of the applicant, and thereby a license was issued to it. Upon appeal to the district court the action of the excise board was affirmed, and remonstrant appeals.
1. If the mayor did not have authority to vote upon the remonstrance and the application the license issued is void. Section 7175, Ann. St. 1907, provides: "The corporate authorities of all cities and villages shall have power to license, regulate and prohibit the selling or giving away of any intoxicating, malt, spirituous and vinous, mixed or fermented liquors within the limits of such city or village," etc. In State v. Andrus, 11 Neb. 523, 10 N.W. 410, we held that "the corporate authorities" were the mayor and council, and that, until those officers, by ordinance duly passed, provided for the licensing of said traffic, a permit could not be issued to vend intoxicating liquors within the limits of any municipality. In Martin v. State, 23 Neb. 371, 36 N.W. 554, we further held that the statute would be satisfied by the enactment of a general ordinance concerning said traffic, and that thereafter the authorities might act by resolution. Section 8518, Ann. St. 1907, provides: "The mayor shall preside at all the meetings of the city council, and shall have a casting vote when the council is equally divided, except as otherwise herein provided, and none other." Section 8519 directs that "the mayor shall have the power to approve or veto any ordinance passed by the city council, and to approve or veto any order, by-law, resolution, award of or vote to enter into any contract, or the allowance of any claim," with the further provision that the council may pass by an affirmative vote of two-thirds of all the members elected to the council any of said measures thus vetoed. Section 8533 enacts: "On the passage or adoption of every resolution or order to enter into a contract, or accepting of work done under contract, by the mayor or council, the yeas and nays shall be called and entered upon the record, and to pass, or adopt any by-laws, ordinance, or any such resolution, or order, a concurrence of a majority of the whole number of the members elected to the council shall be required." Section 8536 also provides that all ordinances or resolutions for the appropriation of money shall require for their passage or adoption the concurrence of a majority of all members elected to the council. It would seem from an inspection of the statutes cited that it requires an affirmative vote of a majority of all of the councilmen of the city of Hastings to appropriate or expend its money, or to execute a contract in the name of said municipality; that the mayor may veto any general ordinance passed by the council, or that he may veto any resolution, ordinance or by-law passed by the council to create a liability against said city or to expend its funds; and that in such cases two-thirds of all the members elected to said council may pass any such measures over the mayor's veto. As to every other act of the council, except the passage of ordinances, the mayor may vote in case of a tie vote of the councilmen. The passage of a resolution overruling a remonstrance to an application for a liquor license, or granting such license, does not come within any of the exceptions direct or implied in the statute, and therefore the mayor had authority to cast the deciding vote.
2. The next question is whether, under any circumstances, a corporation may be licensed to sell intoxicating liquors in Nebraska. This traffic is not a right or privilege guaranteed or protected under the constitution of the United States or the constitution of the state. Bartemeyer v. Iowa, 18 Wall. (U. S.) 129, 21 L.Ed. 929; Beer Co. v. Massachusetts, 97 U.S. 25, 24 L.Ed. 989; Crowley v. Christensen, 137 U.S. 86, 34 L.Ed. 620, 11 S.Ct. 13; Mette v. McGuckin, 18 Neb. 323, 25 N.W. 338. The legislature may, therefore, entirely prohibit that traffic, or select natural, to the exclusion of artificial, persons as licensees. We have repeatedly held that the Nebraska liquor law is prohibitive as to all persons not within its exceptions. Brown v. State, 9 Neb. 189, 2 N.W. 214; Pleuler v. State, 11 Neb. 547, 10 N.W. 481; State v. Cummings, 17 Neb. 311, 22 N.W. 545; Martin v. State, 23 Neb. 371, 36 N.W. 554.
Is a corporation within those exceptions? The statutes now in force concerning said traffic are the result of evolution and slow growth. The territorial legislature in 1855 prohibited the manufacture or disposition of intoxicating liquors as a beverage (act March 16, 1855; laws 1855, p. 158), and the criminal code made it unlawful to furnish such liquors to Indians or intoxicated persons. The act of November 4, 1858 (laws 1858, pp. 256-260), clothed county commissioners and the authorities of incorporated towns and cities with power to license said commerce upon condition that the applicant for license comply with certain stipulations, one of which was that at least ten freeholders of the township wherein the applicant resided should file with the county clerk a petition to the effect that said applicant was "a man of respectable character and standing, and a resident of the territory." This act was included in the criminal code of the revised statutes of 1866 as chapter 29 thereof. A few sections were added in said revision; but, with one or two immaterial changes in composition, chapter 29 aforesaid is a copy of the act of November 4, 1858. In 1873 chapter 29 supra, was carried into the general statutes as chapter 58, secs. 572-590, thereof. The Slocumb law of 1881 (Comp. St. 1881, ch. 50) is a consolidation of the laws theretofore enacted, with some additions to meet possible deficiencies that may have developed in the administration of the law. Sections 7150, 7159, 7160, 7161, 7165, 7166, 7167, 7168, Ann. St. 1907, reproduce, in some instances in identical language, the text of sections 572, 574, 575, 576, 577, 578, 579, 581, ch. 58, Gen. St. 1873, being part of the criminal code thereof. Sections 7150, 7152, 7153, and 7156, Ann. St., 1907, are to all intents the same as sections 1, 2, 3 and 4, act February 25, 1875 (laws 1875, p. 24), relating to intoxicating liquors. Preceding the enactment of the Slocumb law the excise board might accept a bond of $ 500 and a license fee of $ 25. The vendor's liability and that of his bondsmen was to respond to the damages accruing because of his retail traffic. This distinction was eliminated in 1881, making the bondsmen liable for all damages growing out of said traffic. The penalty in the bond was fixed at $ 5,000, and the license fee at not less than $ 500. Thereby it seems to us that the legislature intended to restrict and safeguard the wholesale as well as the retail traffic in such liquors. In 1885, in State v. Cummings, 17 Neb. 311, 22 N.W. 545, we issued a writ to the city marshal of Omaha compelling him to enforce the Slocumb law against the wholesale liquor dealers in said city, some of whom, we are of opinion, appeared to have been corporations. We think that we may take judicial notice of the fact that at the time of the enactment of the Slocumb law corporations were, and continuously thereafter have been, engaged in the business of manufacturing malt and spirituous liquors in Nebraska, and selling the same at wholesale. So far as we are advised, the administrative officers and those officials in the state whose duty it has been to enforce the liquor laws have generally considered corporations...
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