State ex rel. Smith v. Nebraska Liquor Control Commission

• Decision Date: 20 April 1950
• Docket Number: No. 32820,32820
• Parties: STATE ex rel. SMITH v. NEBRASKA LIQUOR CONTROL COMMISSION et al.
• Court: Nebraska Supreme Court

Page 297

42 N.W.2d 297

152 Neb. 676

STATE ex rel. SMITH v. NEBRASKA LIQUOR CONTROL COMMISSION et al.

No. 32820.

Supreme Court of Nebraska.

April 20, 1950.

Syllabus by the Court.

1. Section 25-2221, R.R.S.1943, establishes a uniform rule applicable alike to the construction of statutes and to matters of practice.

2. As a general rule, in the construction of statutes, the word 'shall' is considered as mandatory and it is particularly so considered when the statute is addressed to public officials.

3. The phrase 'as a matter of course' as used in section 53-132, R.S.1943, means that in the absence of objections as outlined in the act within the three-day period, the Nebraska Liquor Control Commission shall proceed to comply with the statutory procedures. It leaves open no area for the exercise of a discretion. It requires the performance of a purely ministerial duty.

4. The word 'shall' as used in section 53-132, R.S.1943, presumes ministerial action and is mandatory.

5. When a specific duty is made plain by statute, and the officer is not given any discretion in the matter, one for whose benefit the duty is to be performed may compel its performance by mandamus.

6. Special provisions in a statute in regard to a particular subject control general provisions.

7. Where the language of a statute is clear and unambiguous it is given effect according to its plain terms.

Webb & Kelley, Omaha, James F. Green, Omaha, for relator.

Clarence S. Beck, Atty. Gen., Homer L. Kyle, Asst. Atty. Gen., for respondents.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, CHAPPELL, WENKE, and BOSLAUGH, JJ.

SIMMONS, Chief Justice.

This is an original action for a writ of mandamus to compel the Nebraska Liquor Control Commission to issue a class 'C' liquor license to relator. We allow the writ.

The fact situation is not in dispute. On January 10, 1950, the city commission of the city of Omaha granted relator a class 'C' liquor license. This license, properly executed, was forwarded to and received by the Nebraska Liquor Control Commission on January 11, 1950. On January 16, 1950, a telegram protesting the granting of the license was filed in Omaha, transmitted, and received that day by the commission. The commission that day notified the relator that a protest had been received and a hearing would be had. Thereafter the hearing was held on February 1, 1950. The hearing was held over the objections of the relator that the protest was not within the provisions of section 53-132, R.S.1943, so as to confer jurisdiction upon the commission to consider the protest. On February 6, 1950, the commission denied the license. Thereafter the relator applied for and was granted permission to commence this action here.

Section 53-132, R.S.1943, provides for the filing of application for a license with the municipal clerk of the local governing body, the filing of a bond together with a license fee and cost deposit, the fixing of a time and place for a hearing on the application, the publishing of a notice thereof, and the holding of a hearing. The statute further provides that if, after hearing, a majority of the governing body favors the granting of a license, it shall direct the approval of the bond and cause a resolution favoring the issuance of the license to be spread upon its records, whereupon the clerk is directed to prepare a license in triplicate original and, when signed as provided in the act, shall forward the license in triplicate form to the commission, together with the state registration fee. No question is raised here as to the proper performance of the conditions of the act above outlined.

The act then provides: 'The commission shall cause such license to be countersigned by its chairman, attested by its secretary over the seal of the commission, as a matter of course, unless within three days after the receipt of such license executed by the local governing body, as aforesaid, objections in writing by a person residing within the city or village or by any person interested shall be lodged with the secretary of the commission protesting the issuance, the countersigning and completing the issuance of such license, in which event the commission shall proceed as in the case of an appeal from any other final order of the local governing body, as provided in section 53-1,115. If no protest in writing be lodged with the secretary, as aforesaid, the commission shall retain the second duplicate original for the permanent records of the commission, and return by registered mail not later than the fourth day after their receipt, the original and the first duplicate of such license, properly executed, to the municipal clerk who forwarded them; and the municipal clerk shall forthwith deliver the original license to the applicant and retain the first duplicate original thereof for the files of the local governing body.' S. 53-132, R.S.1943. (Emphasis supplied.)

Section 25-2221, R.R.S.1943, provides: 'The time within which an act is to be done as herein provided, shall be computed by excluding the first day and including the last; if the last day be Sunday, it shall be excluded.'

This act establishes a uniform rule, applicable alike to the construction of st...