City of Auburn v. Mayer

Nebraska Supreme Court

City of Auburn v. Mayer

78 N.W. 462, 58 Neb. 161, 1899 Neb. LEXIS 126

CourtNebraska Supreme Court

DecidedFebruary 23, 1899

DocketNo. 8741

StatusPublished

Cited by5 cases

This text of 78 N.W. 462 (City of Auburn v. Mayer) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of Auburn v. Mayer, 78 N.W. 462, 58 Neb. 161, 1899 Neb. LEXIS 126 (Neb. 1899).

Pincite

Opinion

Irvine, C.

This action was begun by Mayer against the city of Auburn in the county court to recover certain unearned license money and money paid for an occupation tax. Mayer had judgment, and the city took the case on error to the district court, where the judgment was affirmed. The city now brings the case here. The facts are undisputed. Mayer applied for a license to sell intoxicating liquors. The license was granted, but subsequently an appeal was taken to the district court by remonstrators, and in consequence of mandamus proceedings, for that purpose the council was compelled to revoke the license. The application afterwards coming on to be heard in the district court there was a decision in favor of the applicant and a new license was accordingly issued. The license money here in controversy is the proportionate part of the annual charge for the period when the operation of the license was suspended by the appeal.

It has been too long and too well settled by decisions of this court to permit of any change, except through legis[162]*162lation, that the license fee is not paid for the privilege of asking for a license, but for the license itself, and that where the license fails through no fault of the applicant, he is entitled to have refunded the unearned, portion. (State v. Johnson, 12 Neb. 470; Lydick v. Korner, 15 Neb. 500; State v. Weber, 20 Neb. 467; Chamberlain v. City of Tecumseh, 43 Neb. 221; School District v. Thompson, 51 Neb. 857.) This rule has been applied where a license improperly issued has been ultimately revoked. Indeed, it is sought to distinguish the. present case from those cited on the ground that the rule has been laid down with reference to invalid licenses alone. No such distinction can be drawn from the cases, and it at once strikes the mind as incongruous and unjust that one who has without right enjoyed for a certain time a license should be permitted to recover the fee for the remainder of the period, while one possessing a license ultimately determined to have been rightfully issued may not recover back for a portion of the time when he has unjustly been prevented from enjoying the license. As to the occupation tax, it is conceded that the ordinance imposing it is of such a character as to make applicable whatever may be determined as to the license.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Irvine, C.

This action was begun by Mayer against the city of Auburn in the county court to recover certain unearned license money and money paid for an occupation tax. Mayer had judgment, and the city took the case on error to the district court, where the judgment was affirmed. The city now brings the case here. The facts are undisputed. Mayer applied for a license to sell intoxicating liquors. The license was granted, but subsequently an appeal was taken to the district court by remonstrators, and in consequence of mandamus proceedings, for that purpose the council was compelled to revoke the license. The application afterwards coming on to be heard in the district court there was a decision in favor of the applicant and a new license was accordingly issued. The license money here in controversy is the proportionate part of the annual charge for the period when the operation of the license was suspended by the appeal.

It has been too long and too well settled by decisions of this court to permit of any change, except through legis[162]*162lation, that the license fee is not paid for the privilege of asking for a license, but for the license itself, and that where the license fails through no fault of the applicant, he is entitled to have refunded the unearned, portion. (State v. Johnson, 12 Neb. 470; Lydick v. Korner, 15 Neb. 500; State v. Weber, 20 Neb. 467; Chamberlain v. City of Tecumseh, 43 Neb. 221; School District v. Thompson, 51 Neb. 857.) This rule has been applied where a license improperly issued has been ultimately revoked. Indeed, it is sought to distinguish the. present case from those cited on the ground that the rule has been laid down with reference to invalid licenses alone. No such distinction can be drawn from the cases, and it at once strikes the mind as incongruous and unjust that one who has without right enjoyed for a certain time a license should be permitted to recover the fee for the remainder of the period, while one possessing a license ultimately determined to have been rightfully issued may not recover back for a portion of the time when he has unjustly been prevented from enjoying the license. As to the occupation tax, it is conceded that the ordinance imposing it is of such a character as to make applicable whatever may be determined as to the license.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

78 N.W. 462, 58 Neb. 161, 1899 Neb. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-auburn-v-mayer-neb-1899.

Opinion

Related

Cite This Page — Counsel Stack