State ex rel. Helmer v. McConnel , 8 Neb. 28 ( 1878 )

Lake, J.

This is an application for an alternative writ of mandamus to compel the defendant, who is the treasurer of the city of Lincoln, to pay over to the relator, who -is the treasurer of Lancaster county, certain moneys now in his hands, and which were received by him on- account of certain licenses granted by the corporate authorities of said city to certain persons to sell malt, spirituous, and vinous liquors. It is claimed by the relator that the money in question belongs to the common school fund of the county in which the pity is situated, of which fund he is the lawful custodian, while the respondent contends that it is a part of the common school fund of the city, and therefore rightfully held by him.

Under the law as it was prior to the adoption of our present constitution, all moneys coming Eom this source did belong to the school fund of the particular county within which they were collected, and the proper county treasurer was empowered to demand and receive the same from the city. The City of Tecumseh v. Phillips, 5 Neb., 305. White v. The City of Lincoln, Id., 505. And there has been no change by the legislature of the statutes under which these cases were decided, and the rule just stated laid down.

But it is claimed by the resjDondent that, under the operation of Sec. 5, Art. VIH, of our present constitution, this rule has been changed, and that now these moneys belong exclusively to the common school fund of the cities respectively in -which they arise. And whether this be so or not is the sole question to be decided at this time. The provision of the constitution referred to is the following:

“Sec. 5. All fines, penalties, and license moneys arising under the general laws of the state, shall belong and be paid over to the counties respectively where the same may be levied or imposed; and all fines, penalties, and license moneys arising under the rules, bylaws, or ordinances of cities, villages, towns, precincts, or other municipal subdivisions less than a county, shall belong and be paid over to the same respectively. All such fines, penalties, and license moneys shall be appropriated exclusively to the use and support of common schools in the respective subdivisions where the same may accrue.”

It is contended on the part of the relator that inasmuch as all of the powers of the municipal authorities over the subject of licensing the sale of malt, spirituous, and vinous liquors, are given by the general license law of the state, the funds arising from the exercise of those powers are necessarily embraced within the first clause of this section, and must go into the school fund of the county.

But we cannot adopt this construction. It is only in a technical sense that such moneys can be said to have arisen under a general law of the state; and the same may be said, in a like sense, of every one of the powers confided to the municipal subdivisions of the state. To hold that this money belongs to the county simply because its primary cause, or source, is traceable to a general statute, would leave nothing whatever for the next succeeding clause to operate upon. That such would be the necessary result there can be no doubt whatever, for it is impossible to conceive of a single power which one of these municipal subdivisions can lawfully exercise that is not given either by the general incorporation act under which cities are organized, or by some other general law of the state. A construction having this effect would certainly do violence to the plain intent and spirit of this constitutional provision, and totally ignore that familiar canon of construetion which requires effect to be given, if possible, to every portion of the section. Potter’s Dwarris, 144. People, ex rel. v. Gosper, 3 Neb., 310.

In distinguishing the “ fines, penalties, and license moneys arising under the general laws of the state,” from those “ arising under the rules, by-laws, or ordinances, of cities, villages,” etc., it is evident to us that reference was had, not to the primary source of the power, but to the immediate authority by which the fine or penalty is imposed, or the license granted.

By section 345 of the act, “ To license and regulate the sale of liquors,” the sale of “ malt, spirituous, or vinous liquors, or any intoxicating drink,” without first obtaining a license to do so, is prohibited, and made a highly penal offense. But, as this court has held in the case of Phillips v. The City of Tecumseh, 5 Neb., 312, such license can be granted within the limits of an' incorporated town or city only by the proper authorities thereof, and under such rules and regulations as they may provide. And by another general act, under which the city of Lincoln was incorporated, authority is given to “ prohibit and suppress tippling shops” altogether. Gen. Stat., 144.

From this it will be seen that, independently of the action of the corporate authorities of the city of Lincoln, by ordinances duly passed, not a single dollar of the money in controversy could have been imposed, or collected. We must hold, therefore, that it falls within the second clause of the section, and belongs to the common school fund of the city, of which the defendant is the lawful custodian.

'Writ Denied.