OPINION
MAXWELL, CH. J.
This is
an application for a mandamus to compel the defendant, who is
city treasurer of Plattsmouth, to pay two certain orders for
$ 50.00 each, drawn by the mayor and clerk of said city on
the "special license tax fund," in which it is
alleged that at the date of presenting said orders to the
defendant there was in his hands the sum of $ 3,534.92. The
money is claimed under ordinance 132 of said city, which will
be referred to hereafter.
To the
petition the defendant filed an answer in which he admits
that Plattsmouth is a city of the second class; admits that
he is city treasurer, and that "the city, under
ordinance number 115 of the city of Plattsmouth, licensed
seven saloons in said city in the spring of 1885 for the next
fiscal year, and exacted and received the sum of $ 500 each
from said seven saloons."
"Admits that ordinance 132 was passed on the
14th day of April, 1884, and that the said city collected
moneys thereunder as a license tax; that in the month of May
the said saloon keepers paid into the city treasury and to
this defendant as such treasurer the sum of five hundred
dollars for each of said saloons, in all the sum of $
3,500.00 which this defendant now holds, and is advised and
believes the same is the money of and belongs to the common
school fund of the city of Plattsmouth, under article eight
(8), section five (5) of the constitution of Nebraska.
Defendant further answering says, that at the time of the
issuance under ordinance 115, the whole sum of one thousand
dollars was paid into said treasury, and to this defendant as
said treasurer, before and as a condition precedent to the
issuance of such license under ordinance number 115 as
aforesaid, and in a single sum, the clerk of said city having
refused to issue the said license until the whole sum of $
1,000 was paid in hand, and that no other or different moneys
have been paid or received by this defendant, and that the
moneys so held by him were received as aforesaid and not
otherwise."
The
following is a copy of ordinance 115:
"An
ordinance to license, regulate, and prohibit the selling or
giving away of any intoxicating, malt or vinous, mixed or
fermented liquors.
"Be it ordained by the mayor and councilmen of the city
of Plattsmouth. That in compliance with chapter 50 of the
Complied Statutes of the State of Nebraska, entitled
"Liquors," all persons intending to sell any
intoxicating, malt, vinous, mixed, or fermented liquors
within the city of Plattsmouth or in any of the wards thereof
are hereby required:
"Sec.
1. To present to the mayor and city council a petition for
such a license to sell liquors signed by 30 of the resident
freeholders of the ward (or where there are not 60
freeholders a majority of them) in which the applicant wishes
to do business.
"Sec. 2d. The applicant for the permission to
sell liquors as aforesaid shall present to the city council
and file with his said petition a bond in the penal sum of $
5,000, payable to the state of Nebraska, with at least two
good and sufficient securities, freeholders of Cass county,
said bond to be approved by the city council. The bond shall
be conditioned that the applicant to sell liquors will not
violate any of the provisions of chapter 50 of the Complied
Statutes of the state of Nebraska, and that he will pay all
damages, fines, penalties, and forfeitures which may be
adjudged against him under the provisions of such chapter.
"Sec.
3d. No action of the council shall be taken upon any
application until two weeks' notice of the filing of the
same shall have been made in the official newspaper of the
city of Plattsmouth, and if there are no objections made in
writing and filed with the city clerk, and all of the
provisions have been complied with, the license shall be
issued by the said city clerk. If there be any objections
filed in the office of the city clerk, the mayor shall call a
meeting of the council to hear the case, and if it shall have
been proven that the applicant for license has been guilty of
the violation of any of the provisions of the act entitled
"Liquors," within the space of one year, or if any
former license shall have been revoked for any misdemeanor
against the laws of the state of Nebraska, then the council
shall refuse to permit the issuance of such license.
"Sec.
4th. On the filing of the petition and bond aforementioned
the applicant for license shall deposit with the city clerk $
500, which sum shall be the amount required by the city for
license to sell liquors for the municipal year herein
provided. If by any reason the license should be refused by
said city council, the said sum of $ 500 shall be returned to
the person depositing the same.
"Sec.
5th. A druggist, upon compliance with the provisions
heretofore contained, and subject to all the penalties
contained in chapter 50 of the Complied Statutes of the state of Nebraska, entitled "Liquors,"
will be granted a permit without any license fee, except the
cost of issuing said permit to sell spirituous, vinous, and
fermented liquors for medical and mechanical purposes
only."
The
following is a copy of ordinance 132:
"An
ordinance providing for the levying and collecting of a
license tax on occupations and business carried on within the
limits of the city of Plattsmouth, to regulate the same, and
to repeal ordinance No. 117, entitled an
ordinance to provide for the levying and collecting of a
license tax on occupations and business carried on within the
limits of the city of Plattsmouth, to regulate the same, and
to repeal an ordinance of the city council of said city,
entitled an ordinance providing for the assessment and
collection of license tax, being ordinance No. 86.
"Be
it ordained by the mayor and councilmen of the said city of
Plattsmouth, Nebraska:
"Sec.
1st. That each and every person, firm, association, or other
corporation carrying on the occupation or business herein
mentioned within the limits of the city of Plattsmouth shall
pay into the city treasury annually the sums named as
hereinafter provided as a special license tax.
"Sec.
2d. The money paid into the city treasury under the
provisions of this ordinance shall constitute and be known as
the 'special license tax fund.'
"Sec.
3d. The special license tax fund shall only be used for
paying the expense of grading and repairing streets,
constructing and repairing sidewalks, the lighting of the
city, and the paying of policemen; Provided,
however, that the city council may at any time, by a
majority vote of the councilmen elect, authorize the passage
of an ordinance transferring money from the special license
tax fund into the general fund of the city.
"Sec.
4th. Under the provisions of the ordinance and the power
vested by the there is hereby levied on
Non-resident auctioneers, per day
|
$ 10 00
|
Hawkers and peddlers of goods, jewelry, and patent
|
medicines, per day
|
10 00
|
For each dollar store, concert, or exhibition, and all
|
games not prohibited by the statutes, per day
|
10 00
|
Non-resident dentists, per day
|
2 50
|
Non-resident canvassers, per day
|
1 00
|
LICENSE PER ANNUM.
|
Resident auctioneers
|
$ 20 00
|
Bank
|
10 00
|
Grocery store--retail
|
5 00
|
Grocery store--wholesale
|
25 00
|
Meat market
|
5 00
|
Druggists
|
10 00
|
Dealer in dry goods carrying $ 10,000 or less of
|
stock
|
10 00
|
Dealers in dry goods carrying more than $ 10,000
|
and less than $ 15,000
|
15 00
|
General merchandise and clothing dealers the same
|
as dry goods.
|
Hardware dealers carrying $ 5,000 or less of stock
|
5 00
|
Hardware dealers carrying more than $ 5,000
|
10 00
|
Jeweler carrying $ 10,000 or less of stock
|
10 00
|
Jeweler carrying more than $ 10,000
|
15 00
|
Boot and shoe dealer, exclusive
|
10 00
|
Commission stores
|
10 00
|
Grain dealer
|
10 00
|
Tobacco and cigar dealer
|
5 00
|
Sewing machine dealer or agents
|
5 00
|
Millinery and notion dealer
|
5 00
|
Variety store and dealer in stationery
|
10 00
|
Merchant tailor
|
5 00
|
Livery and feed stable
|
10 00
|
Furniture dealer
|
10 00
|
Saddle and harness dealer
|
5 00
|
Hotel
|
10 00
|
Restaurant and confectionery
|
$ 5 00
|
Real estate dealer
|
5 00
|
Physicians and surgeons
|
5 00
|
Wagon and blacksmith shop
|
5 00
|
Dealers in stoves and tinware, exclusive
|
5 00
|
Flour and feed store
|
5 00
|
For each theatrical, opera, minstrel, or circus troupe
|
5 00
|
Agricultural and implement dealer
|
5 00
|
Resident dentists
|
5 00
|
Brick layers
|
5 00
|
Ice dealers
|
5 00
|
Saloons retailing liquor as a beverage, in addition
|
to such sums as are now or hereafter shall be
|
required under the laws of Nebraska
|
500 00
|
Billiard halls, one table
|
25 00
|
Each additional pool or billiard table
|
10 00
|
Bagatelle or Jennie lead tables, each
|
5 00
|
Bowling alley
|
25 00
|
Hack, dray, or omnibus
|
5 00
|
Lumber dealer
|
10 00
|
Photograph galleries
|
5 00
|
Express company
|
15 00
|
Telephone company
|
10 00
|
Telegraph company
|
10 00
|
Resident life insurance agents
|
5 00
|
Non-resident life insurance agents, per week
|
1 00
|
Each circus or menagerie, per day
|
50 00
|
Each side-show with circus
|
10 00
|
Non-resident parties consigning goods to resident
|
auctioneers for sale, per day
|
5 00
|
Coal dealers
|
5 00
|
Printing offices
|
5 00
|
Second-hand stores
|
5 00
|
Shooting gallery
|
15 00
|
Shooting gallery, per week
|
3 00
|
Skating rink
|
5 00
|
"Sec. 5th. All license provided for under
this ordinance shall be issued and signed by the mayor and
clerk; they shall specify the amount of money paid, the kind
of business licensed, the name of the person to whom issued,
and the length of time for which same was
...
