State ex rel. Conway v. Weber

• Decision Date: 01 December 1886
• Citation: 30 N.W. 531,20 Neb. 467
• Parties: STATE, EX REL. B. CONWAY, PLAINTIFF, v. LOUIS C. WEBER ET AL., THE BOARD OF TRUSTEES OF THE VILLAGE OF ARLINGTON, AND LENA KLINDT AND LENA STALTENBERG, DEFENDANTS
• Court: Nebraska Supreme Court

30 N.W. 531

20 Neb. 467

STATE, EX REL. B. CONWAY, PLAINTIFF, v. LOUIS C. WEBER ET AL., THE BOARD OF TRUSTEES OF THE VILLAGE OF ARLINGTON, AND LENA KLINDT AND LENA STALTENBERG, DEFENDANTS

Supreme Court of Nebraska

December 1, 1886

ORIGINAL application for mandamus.

Peremptory writ of mandamus issued.

H. C and A. M. Bittenbender, for relator.

N. H Bell, for respondents.

OPINION

COBB, J.

This is an original application to this court for a peremptory mandamus against the village board of the village of Arlington, in the county of Washington, commanding them to appoint a day for the hearing of the case arising on the remonstrance against the said board granting a license to Lena Klindt and Lena Staltenberg to sell malt, spirituous, and vinous liquors in said village, etc.

After the necessary formal allegations, it is set forth in the said application that on the 22d day of April, 1886, there was filed in the office of the clerk of said village an application by petition of thirty-two persons claiming to be resident freeholders of said village, asking that license be granted to Lena Klindt and Lena Staltenberg under the firm name of Klindt & Staltenberg, to sell malt, spirituous, and vinous liquors within said village, as provided by law.

That a notice of said application was published in a newspaper published in the said county of Washington on the 22d and 29th days of said month of April respectively, etc.

That on the 30th day of April, 1886, a remonstrance in writing was filed in the office of the village clerk of said village, signed by the plaintiff and six other residents of said village, remonstrating against granting license to said Lena Klindt and Lena Staltenberg as asked for by said application, and requesting said board of trustees to appoint a day for the hearing of said case.

That the attention of said board was called to said remonstrance at the meeting of said board held for the purpose of considering the said application for license on the 30th day of April, 1886, but that instead of appointing a day for the hearing of said remonstrance so that said remonstrators might have a fair opportunity to be present with their witnesses, the said board, at 10 o'clock P. M., of said day, adjourned until 9 o'clock the following morning.

That none of said remonstrators were present at the time of said adjournment, nor notified of said adjourned meeting.

That plaintiff, having heard through rumor of the said adjourned meeting, appeared thereat, and then and there asked for a continuance of said hearing until the 5th day of May of the said instant in order to have time to procure evidence to show that less than thirty of the signers of the said application were resident freeholders, which request of the plaintiff was refused, and the said board then and there proceeded to and did vote to license and did license the said Lena Klindt and Lena Staltenberg to sell intoxicating liquors from the first Tuesday in May, etc.

That there has been no hearing on said remonstrance, nor any other time fixed for such hearing, etc.

The defendants, being duly notified by the plaintiff of his intention to apply for a mandamus, appeared in this court on the last day of the last term and contested the application by argument, but filed no written answer. The matter was then taken under advisement. The facts alleged in the petition are sufficiently proved by certificates of the proceedings of the village board under the hand and seal of the village clerk. The statute, section 3, chapter 50, p. 414, Comp. Stats., is as follows:

"SEC. 3. If there be any objection, protest, or remonstrance filed in the office where the application is made, against the issuance of said license, the county (city or village) board shall appoint a day for hearing of said case, and if it shall be satisfactory proven that the applicant for license has been guilty of the violation of any of the provisions of this act within the space of one year, or if any former license shall have been revoked for any misdemeanor against the laws of this state, then the board shall refuse to issue such license."

Section 4 provides as follows:

"SEC. 4. On the hearing of any case arising under the provisions of the last two sections, any party interested shall have process to compel the attendance of witnesses, who shall have the same compensation as now provided by law in the district court, to be paid by the party calling said witnesses," etc.

There are two questions to be considered for the determination of this case.

1. Do the facts above stated bring the case within the meaning and intent of the provisions of the sections above quoted? It is true that the allegations of the protest as set out in the petition are directed against the procedure of the applicants for license, and not against the applicants themselves on account of any violation of the statute for having forfeited any previously granted license, or other misconduct. The first section of the act which we have under consideration limits the power of the board to grant license to cases where they have been petitioned to grant such...