Maxwell v. Reisdorf , 90 Neb. 374 ( 1911 )

Rose, J.

The validity of a license to sell intoxicating liquors in the village of Crestón is the subject of the controversy. James Reisdorf is licensee. N. J. Maxwell and others are remonstrators. After the license had been granted, • remonstrators presented the record of the village board to the district court, and there asked to have the license revoked. Prom an adverse judgment they have apppealed to this court.

The license is challenged on the ground that licensee failed to give legal notice of the filing of the petition on which the village board acted. The facts material to the determination of this question may be summarized as follows: Por the purposes of this appeal, a petition signed by 30 resident freeholders was essential to the jurisdiction of the board. When the petition was filed with the city clerk, April 14, 1911, it bore 30 names, bui; only 29 gfenuine signatures, the use of one of the names having been unauthorized. Beginning with that date notice of the application was published for three consecutive weeks. April 26,1911, the city clerk appended to the petition the following note: “Comes now Louise' Lueschen, whose name appears as one of the petitioners on petition of James Reisdorf for liquor license, and asks that her name be taken from said petition, as she herself had not signed such petition, nor authorized any one else to sign her name to such petition.” At a meeting of the board May 1, 1911, the remonstrance was read. It is in this form: “We, the undersigned, hereby remonstrate against the issuing of a liquor license to one James Reisdorf, on pe-' tition now on file with the village clerk of said village. The reason we object to the issuing of such license is that there are not enough signatures of legal resident freeholders on said petition.” The hearing of the remonstrance was set for May 2, 1911, when the board allowed three additional petitioners to sign the petition, and directed the clerk to issue the license; the record of the proceedings, showing, among other things: “It is admitted to the board that the signature of Louise Lueschen on said petition is not her signature, and that she did not authorize any one to sign her name to said petition.” It thus appears that, when the petition was filed and the notice published, it bore the authorized signatures of 29 qualified petitioners only, and remained in that condition until the time set for the hearing of the remonstrance. No further notice of the application was given after the number of authorized signatures had been increased.

On this record remonstrators contend: The petition as originally filed was not a legal one. It bore the names of 29 petitioners only, and was wholly insufficient for jurisdictional purposes. If it was made sufficient by the additional signatures, it became so for the first time May 2, 1911. Legal notice of the filing of the petition not having been published after it was made sufficient by additional petitioners, the board issued the license without jurisdiction, and its action is for that reason void.

Was the petition as originally filed sufficient to give the village board jurisdiction over the matter of granting a license? Was the notice of the filing of the petition containing the names of 29 petitioners only sufficient to meet the requirements of the statute? The law prohibits the sale of intoxicating liquors, except upon statutory conditions. Those conditions cannot lawfully be relaxed or modified by licensing boards or courts. Whether they impose a hardship upon an applicant for a license is not an executive or a judicial question. To procure a valid license, an applicant must comply with such conditions, and it is not within the power of those who administer the law to excuse him from doing so. The language of the law is: “No action shall be taken upon said application until at least two weeks’ notice of the filing of the same has been given by publication.” Oomp. St. 1911, ch. 50, sec. 2. The terms, “application” and “the filing of the same” refer to the statutory petition signed by at least 30 resident freeholders, and do not apply to a petition bearing 29 signatures only] For the purpose of giving notice, the statute makes no reference to a petition which appears on its face to have 30 petitioners, and neither the licensing board nor the court has any authority to interpolate such a provision. The statute requires the applicant to file the petition and to give the notice. The requirements of both are definitely stated. Where a village board issues a license, its record must show all of the jurisdictional facts. One of those facts is the filing of a petition signed by the requisite number of freeholders. It is not shown by the record of the proceedings before the board that there are less than 60 resident freeholders in the village. There is as good reason for asserting that a petition, to which all the names were signed without authority, is sufficient for the purpose of publication, though the use of such names has never been ratified, as there is for the contention that 29 genuine signatures and one unauthorized name meet the requirements of the statute, if they happen to appear upon the face of the petition. Prior to May 2, 1911, the board did not have before it the petition contemplated by statute. Within the meaning of the law, the document filed by the applicant April 14, 1911, was not a petition or application, and the filing thereof could not be made the basis of a iegal notice. Not having had a sufficient petition' until May 2, 1911, two weeks’ notice of the filing thereof was essential to confer jurisdiction on the board to issue a license. Zielke v. State, 42 Neb. 750; Pisar v. State, 56 Neb. 455; Pelton v. Drummond. 21 Neb. 492.

Licensee, however, takes a different view of the law, and argues that the filing of the petition, the giving of the notice and the signing of the additional names with the permission of the board meet the requirements of the statute and make further publication unnecessary. To sustain this point he cites Livingston v. Corey, 33 Neb. 366, and Thompson v. Eagan, 70 Neb. 169. In the first of these cases the writer of -the opinion was particular to make it clear that the petition as originally filed was signed by the requisite number of qualified petitioners. In the last of the cases cited by licensee the first is followed, and for the reason stated neither is in point. For want of legal notice of the filing of the petition on which the board acted, the license was granted without jurisdiction, and is therefore void.

It follows that the judgment is reversed and the cause remanded to the district court, with a direction to cancel the license.

Reversed.