State, ex rel. McDonald v. Dyson
| Decision Date | 06 June 1921 |
| Docket Number | 21881 |
| Citation | 183 N.W. 298,106 Neb. 277 |
| Parties | STATE, EX REL. KENNETH W. MCDONALD ET AL., APPELLEES, v. WILLIAM I. DYSON, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Morrill county: RALPH W. HOBART JUDGE. Affirmed.
AFFIRMED.
R. J Greene and H. C. Wilson, for appellant.
Clarence A. Davis, Attorney General, C. L. Dort and K. W. McDonald contra.
Heard before MORRISSEY, C.J., FLANSBURG and ROSE, JJ., BEGLEY and LESLIE, District Judges.
This is an action brought in Morrill county, by the State, ex rel. Kenneth W. McDonald, County Attorney, and Clarence A. Davis, Attorney General, Relators, against William I. Dyson, Sheriff, under the provisions of chapter 187, Laws 1917.
A petition was filed in the district court on the 14th day of December, 1920, which broadly charges the respondent with failing and refusing to enforce the laws of the state of Nebraska generally, and with wilfully neglecting, failing and refusing to perform his duty as sheriff in the enforcement of the provisions of chapter 187, Laws 1917, and of habitual drunkenness, and wilful neglect of duty in failing to faithfully perform numerous other duties devolving upon him as sheriff during his term of office.
A special appearance was filed by the respondent, which was overruled by the court, and, following this, a motion was filed by the respondent to require the relators to make their petition more definite, which was overruled. No answer was filed by the respondent, but the case appears to have been tried upon the theory that the respondent filed a general denial. At the conclusion of the evidence and argument of counsel the court found that the allegations of relators' petition relative to respondent giving away and receiving intoxicating liquors were sustained by the evidence, but that the allegations charging respondent with selling liquors were not sustained by the evidence. The court entered a judgment finding the respondent guilty of giving away and receiving intoxicating liquors contrary to law and ousting him from office as sheriff of Morrill county. From this judgment and order overruling respondent's motion for a new trial the respondent has appealed to this court. Numerous assignments of errors are relied upon by respondent for reversal, but we do not deem it necessary to give consideration to all of them.
No issue as to the constitutionality of the section of chapter 187, Laws 1917, under which this action is brought, was tendered by the pleadings in the court below. The respondent filed no answer, nor did he demur to the petition, nor move to quash the same, nor object to the introduction of testimony upon the ground that section 50 of said act was unconstitutional. This is a civil action, and the respondent for the first time raised the question of the constitutionality of this law in his motion for a new trial. The case was tried upon the theory that the defendant had filed a general denial to the petition. We must decline to consider the question of constitutionality at this time, since it was not tendered as an issue at the trial of the case in the court below. If the respondent desired to raise that question he should have demurred to the petition, or tendered it as an issue in his answer, or moved to quash or dismiss the petition, or objected to the introduction of testimony upon the ground that the section of the law under which said action was commenced was unconstitutional. Not having done any of these, and the cause having been tried upon the theory that the law was constitutional, this court should not now consider that question.
The important question for consideration is whether the evidence is sufficient to sustain the judgment of the trial court.
Paragraph 5-A charges that the respondent within the present term of his office failed and refused to do his duty in the enforcement of the provisions of chapter 187, in that he permitted intoxicating liquors to be given away and disposed of with his knowledge, and permitted it to be transported and kept in places other than dwelling houses or residences.
Paragraph 5-B charges that the respondent on or about the month of June, 1919, sold liquors to a person, or persons, in Morrill county, contrary to the provisions of chapter 187.
The trial court found that the allegations in the petition charging the respondent with selling intoxicating liquors were not sustained by the evidence, but further found that the allegations relative to respondent giving away and receiving intoxicating liquors to and from different persons were sustained by the evidence. A perusal of the petition discloses that it charges respondent with selling it himself and permitting it to be given away. The respondent's contention is that, the court having found there was no evidence to sustain the charge that the respondents sold intoxicating liquors, the evidence will not sustain the finding that he gave it away, for the reason, as respondent contends, that it is not charged in the petition...
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