School District No. 34, Thayer County v. Thompson
| Decision Date | 03 June 1897 |
| Docket Number | 7349 |
| Citation | 71 N.W. 728,51 Neb. 857 |
| Parties | SCHOOL DISTRICT NO. 34, THAYER COUNTY, v. W. L. THOMPSON |
| Court | Nebraska Supreme Court |
ERROR from the district court of Thayer county. Tried below before HASTINGS, J. Affirmed.
AFFIRMED.
J. B Skinner, for plaintiff in error.
W. E Goodhue, contra.
Thompson sued the school district in the county court, recovered judgment, and the school district prosecuted error to the district court, where the judgment of the county court was reversed and the cause reserved for trial. Thereupon Thompson filed an amended petition. A general demurrer to this petition was overruled, and the school district electing to stand on its demurrer, judgment was entered for the plaintiff. This judgment the school district seeks to reverse by this proceeding.
The amended petition alleges that on the 22d of April, 1889, the plaintiff filed with the clerk of the village of Belvidere in Thayer county, his petition signed by thirty freeholders, residents of said village, wherein he prayed for license to sell malt, spirituous, and vinous liquors in said village; that on the 29th of April he gave bond, and on the 5th of May paid to said village the sum of $ 500 for said license; that on the 29th of April a license was issued; that on the 5th of May the treasurer of said village "paid to the treasurer of this defendant the amount of money by this plaintiff paid into said treasury of Belvidere for the license heretofore mentioned;" that on the 19th of September the district court issued a mandamus to the village board, requiring it to fix a time for hearing a remonstrance filed against the issuing of the license. Such remonstrance was based on grounds which attacked the jurisdiction or authority of the village board to grant a license under the petition presented; that in pursuance of said writ the village board canceled the license on the 20th of September; that on the 10th of April, 1890, the plaintiff obtained a judgment against the village for $ 306.60, being the unearned license fee by him paid; that certain payments had been made on such judgment, but $ 259.27, with interest, remained unpaid; that on the 4th of November the village of Belvidere abolished its incorporation and became dissolved. Plaintiff prays judgment against the school district for the unearned license money less the amount received on its judgment against the village. The question presented is whether this petition states a cause of action.
It is the settled law of this state that where an applicant for a license to sell liquor has paid the license fee and the license is afterwards canceled without fault or act of forfeiture by the licensee, he may recover back a proportionate part of the license fee for the period during which he is not permitted to enjoy the license. ( State ex rel. Johnson v. Cornwell, 12 Neb. 470; Lydick v. Korner, 15 Neb. 500, 20 N.W. 26; State v. Weber, 20 Neb. 467, 30 N.W. 531; Chamberlain v. City of Tecumseh, 43 Neb. 221, 61 N.W. 632.) The general question of the right of the plaintiff to a repayment of his money is, therefore, no longer open to question. May he recover it from the school...
To continue reading
Request your trial