Templeton v. City of Tekamah

• Decision Date: 02 July 1891
• Citation: 49 N.W. 373,32 Neb. 542
• Parties: TEMPLETON v. CITY OF TEKAMAH.
• Court: Nebraska Supreme Court

32 Neb. 542

49 N.W. 373

TEMPLETON

v.CITY OF TEKAMAH.

Supreme Court of Nebraska.

July 2, 1891.

Syllabus by the Court.

1. The provisions of subdivision 8, § 52, art. 2, c. 14, Comp. St., authorizing cities to levy and collect occupation taxes, is not repugnant to sections 1 and 6 of article 9 of the constitution. Magneau v. City of Fremont, (Neb.) 47 N. W. Rep. 280.

2. A provision of an ordinance imposing a license tax upon certain occpuations, fixing a penalty for pursuing such occupations without first having obtained a license therefor of a fine of not less than $5 nor more than $100, or the offender might be imprisoned not more than 10 days, held, that the fine and imprisonment clause, although void, did not affect that part of the ordinance which fixed a civil liability, and the tax might be collected by action.

Error to district court, Burt county; WAKELEY, Judge.H. Wade Gillis, for plaintiff in error.

N. J. Sheckell, for defendant in error.

COBB, C. J.

The city of Tekamah brought an action against the plaintiff in error upon an ordinance of said city which provided for the levying and collection of a license tax upon the keeping and using of stallions and jacks for breeding purposes within the corporate limits of the city of Tekamah. The petition, after setting out the said ordinance, the first section of which provides that “there is hereby levied upon each and every person, firm, association, or corporation keeping or using any stallion or jack for breeding purposes within the corporate limits of Tekamah the sum of ten dollars for each stallion or jack so kept as a special license tax,” with other provisions, contained in succeeding sections, pointing out the manner of paying, and to whom, of such license tax, and the manner of issuing, and by what officer, of the license therefor, and other appropriate provisions; alleged that during the fiscal year commencing in May, 1888, and subsequent to the taking effect of the said ordinance, the defendant kept for breeding purposes, within the corporate limits of the city of Tekamah, four stallions, for which he is indebted to the plaintiff in the sum of $40 as a special license tax thereon, for which suit is brought to collect; that said defendant has not paid said license, nor any part thereof, or taken out any license, as required by said ordinance, etc.; with prayer for judgment. To which petition the defendant filed a general demurrer, which was overruled. The defendant not desiring to plead over, the cause was tried to the court, a jury being waived, upon the petition and evidence, with a finding and judgment for the plaintiff. A motion for a new trial was made and overruled, and the cause brought to this court on error. There are several errors assigned, but, as there is no evidence contained in the paper certified by the clerk of the trial court as the original bill of exceptions, the only question that can be considered in this court is that raised by the demurrer to the petition. Plaintiff in error, in the brief of counsel, divides this question into two, as follows: (1) Is the...