Munson v. Thompsen

120 N.W. 952, 84 Neb. 67, 1909 Neb. LEXIS 177

• Court: Nebraska Supreme Court
• Decided: April 13, 1909
• Docket: No. 15,498
• Status: Published

Opinion

Root, J.

Appeal from a judgment of the district court for Wayne county confirming the action of the city council of Wayne in granting one Thompsen a license to sell intoxicating liquors in said city. The license year has expired, so that as between the parties the only issue is the payment of costs. Counsel requests a consideration of but two questions.

1. Must the petitioners have personal knowledge that the applicant is a man of respectable character and standing in the community? Four only of the petitioners were acquainted with the applicant. The statute does not require the petitioners to have such knowledge. If the allegation in the petition with reference to character is not denied, the excise board will generally accept that statement as true; if traversed, the applicant, and not the petitioners, must make the proof. Remonstrants have not cited any authority to sustain said proposition, and the point must be resolved against them.

2. Was it the duty of the district court in the appeal case to order the city council to reconvene 'and receive the evidence excluded by them? The attorneys for applicant and remonstrants signed an agreement that the city attorney should rule upon all objections to the introduction of evidence, and that the board would adopt such decisions. Remonstrants sought to prove that the applicant while the manager of a saloon the preceding year had sold intoxicating liquors to minors and to a confirmed drunkard. The_ testimony was excluded by the council on the ground, as the record recites, that the applicant was not a licensee the preceding year. The license was granted, and remonstrants filed notice of an appeal to the district court, and lodged therein a transcript of the proceedings had and evidence taken before the council. Remonstrants then moved the district court to reverse and remand the case, with instructions to the council to vacate the license because'there was not any competent evidence in the record that Thompson was a man of respectable character and standing in the community, and because but 4 of the 33 petitioners knew him. They also requested the court to reverse and remand said cause and command the council to reconvene and hear and reduce to writing all of the evidence offered by remonstrants and excluded by it. The motions were overruled, and the action of the council confirmed. The district court did not err in overruling the motion to compel the council to reconvene and hear the proffered testimony.

Upon an appeal the appellate court only reviews the final order upon the pleadings and the evidence admitted-in the lower court. Errors committed in rejecting evidence must be corrected by other proceedings. Battelle. v. McIntosh, 62 Neb. 647. The general proposition is well established, and the statute which authorizes an appeal in liquor license cases is emphatic that the appeal shall be decided by the judge of the district court upon the evidence contained in the transcript, and none other. Section 4, ch. 50, Comp. St. 1907; State v. Bonsfield, 24 Neb. 517; Livingston v. Corey, 33 Neb. 366. It is likely that reference may be found in some cases decided since Livingston v. Corey, supra, to the effect that the board improperly excluded competent testimony, but in each instance, independent of those matters, there was sufficient in the record to sustain the action of this court. Counsel argue that State v. McGuire, 74 Neb. 769, and State v. Board of Fire and Police Commissioners of Omaha, 76 Neb. 741, changed the practice in this state, and entitled him to the relief demanded in the district court. The former case was mandamus to compel an excise board to reduce to writing the testimony taken before it in a liquor license case. It was held that the extraordinary writ would not issue for several reasons, one being that remonstrants had a plain, adequate and speedy remedy at law, that is, they could file a transcript of so much of the pleadings and proceedings before the excise board as they could obtain, and, if a complete record was not furnished, the district court by rule would compel the board to supply the deficiency. Section 28, ch. 19, Comp. St. 1907; Worley v. Shong, 35 Neb. 311. In the case of State v. Board of Fire and Police Commissioners of Omaha, supra, the district court, on the application of relator, had commanded the excise board to forthwith and without compensation furnish him 127 transcripts of evidence, taken in as many contests determined by them. The judgment of the district court was reversed, and it was again decided that mandamus was not necessary to secure remonstrants all of their rights on appeal, which were a truthful and certified transcript of the pleadings and evidence and of the rulings of the excise board. This court has never held that a remonstrant may appeal to the district court, and by the orders of that tribunal in that proceeding compel an excise board to reconvene and correct any errors committed in the exclusion of evidence. The excise hoard acted arbitrarily in the instant case, and, if the offered testimony was true, Thompson should not have been granted a license, but those errors could not be corrected on an appeal to the district court.

We have disposed of the two propositions argued in remonstrants’ brief, and the judgment of the district court is

Affirmed.