State ex rel. Brigham v. City of S. Omaha

• Decision Date: 17 February 1892
• Parties: STATE EX REL. BRIGHAM v. CITY OF SOUTH OMAHA ET AL.
• Court: Nebraska Supreme Court

33 Neb. 876

51 N.W. 291

STATE EX REL. BRIGHAM

v.CITY OF SOUTH OMAHA ET AL.

Supreme Court of Nebraska.

Feb. 17, 1892.

Syllabus by the Court.

1. The applicant for a license to sell intoxicating drinks must cause a notice of his application to be published at least two weeks in a newspaper published in the county, having the largest circulation therein. This notice is to be continued for two weeks. It is to be published in every issue of the paper. If the paper is published daily, then the notice must be published daily; if the paper is published weekly, then weekly publication will be sufficient.

2. The object of the notice is to give as wide publicity as possible to the plaintiff's application, so that, if any person knows of any violation of the license law by the applicant, or any valid reason why license should not be granted to him, he may come forward and make objection.

Error to district court, Douglas county; DOANE, Judge.

Petition by the state on the relation of Samuel P. Brigham for mandamus to compel the mayor and council of the city of South Omaha to revoke a liquor license. Writ denied, and plaintiff brings error. Reversed.E. W. Simeral, for plaintiff in error.

David L. Cartan, for defendants in error.

MAXWELL, C. J.

In August, 1891, the relator filed a petition for a mandamus against the defendants in the district court of Douglas county as follows: “Comes now the said plaintiff, the state of Nebraska, at the relation of Samuel P. Brigham, and for cause of action against the said defendants alleges: (1) That said relator, Samuel P. Brigham, is now, and for over a year last past has been, a resident, citizen, and voter of the city of South Omaha, Douglas county, Nebraska. (2) Complainant further shows that the said city of South Omaha is a municipal corporation, organized and existing and governed by the laws of the state of Nebraska for such purposes made and provided. (3) That the said defendant William G. Sloan is the mayor of said city, and the other defendants are the duly elected and qualified members of the city council of said city, and as such city council of the said city of South Omaha have power to license, regulate, and prohibit the sale or the giving away of malt, spirituous, vinous, mixed, or fermented liquors within the limits of the said city of South Omaha. (4) Plaintiff further shows to the court that on the 2d day of April, 1891, one Edward Burke duly made application to the said defendants for a license to sell liquor, by filing with the city clerk of said city of South Omaha his petition therefor, signed as by law required; and that thereupon Edward Burke caused to be published in the Omaha World-Herald, a daily newspaper printed in said county, a notice of his, the said Burke's, application for said license. Plaintiff further states that said notice was published in said World-Herald on the 3d day of April, 1891, and also on the 10th day of April, 1891, and that there was no other or further publication in said newspaper of said notice. That said newspaper was at the time said notice was so published a daily paper, issued every day, and was issued every day between the 3d and 10th days of April, 1891. * * * Plaintiff further shows to the court that on the 29th day of April, and long prior to the granting of the said license, said relator filed in the office of the city clerk of said city a written remonstrance against the granting of said license to said Edward Burke. Plaintiff further alleges that said city council never set a day or time for the hearing of said remonstrance, but did, notwithstanding the same, and on the 14th day of May, 1891, grant and issue to said Edward Burke a license to sell liquor, as in said Burke's petition prayed; and immediately thereafter, and as soon as possible for relator so to do, he gave notice to defendant of his intention to appeal said matter of the application of Edward Burke for a license, his remonstrance thereto, and the granting and issuance thereof, to the district court of said Douglas county, Nebraska; and your relator obtained and filed a full and complete transcript of the record and evidence in said matter in the office of the clerk of the district court of said Douglas county, Nebraska, on the 21st day of May, 1891, thereby perfecting his said appeal of said matter. Immediately thereafter, and on the 21st day of May, 1891, relator gave to said defendants a notice in writing that he had perfected his said appeal, and demanded that said defendant, as such city council aforesaid, recall, cancel, and revoke the license of said Edward Burke pending the said appeal in the said district court of said Douglas county, Nebraska. Defendants refused, and still refuse, to...