Sexson v. Kelley

Gantt, J. The defendants, Kelley and Noonan, obtained a license from the authorities of the City of Lincoln to sell malt, vinous, and spirituous liquors, for one year from June 6, 1871. The plaintiff, the wife of James Sexson, brought this action, on the bond, against these defendants, and Eahey, their surety, to recover damages alleged to have been sustained by reason of Kelly and Noonan selling intoxicating liquors to her husband — making him drunk. The defendants demurred to the petition on the ground that it does not state facts sufficient to constitute a cause [106] of action. The court sustained the demurrer and rendered judgment accordingly. To reverse that judgment the cause is now brought here by petition in error. Section 336, chapter 29, of the criminal code, Revised Statutes, 1866, 671, confers on the county commissioners authority to grant and issue license to any person or persons who shall comply with the provisions of the act. One of these provisions is that the applicant shall “ file with the county clerk his bond to the county, in the sum of not less than five hundred dollars, nor more than five thousand dollars, with good and sufficient security, to be approved by the county commissioners, conditioned that during the continuation of his license, he will not keep a disorderly house; that he will not allow gambling with cards, dice, or any other implements or devices, used in gambling within his house, or within any out-house, yard, or other premises under his control, and for the payment of all damages, fines and forfeiture, which may be adjudged against him under the provisions of this chapter.” By section 850, “all the j>owers and duties in this chapter, devolving upon the county commissioners, shall belong to and be exercised by the proper authorities of any or all towns and cities of this state, within the incorporated limits thereof.” This section merely confers on the city authorities the powers and duties of the commissioners, within the city limits, and authority to increase the license within the city limits, and to make needful rules and pass ordinances to carry out the intent of the law. It does not, in one particular, change the conditions with which the applicant for license must comply. The act requires the applicant to execute his bond to the county; this is a statutory requisition, and the city authorities cannot disregard it and take a valid bond in any other name as obligee. The condition of the bond provides against the keeping of a disorderly house, and [107] all gambling, and for tbe payment of all damages, fines, and forfeitures; this is also a statutory requisition, and tbe city authorities cannot disregard it and take a bond witb other conditions. Tbe bond sued on is made to tbe City of Lincoln, and contains no condition for tbe payment of all damages which may be adjudged against tbe licensed parties; but simply provides for tbe payment of all fines, forfeitures, and penalties, and tbe compliance witb tbe statutes of Nebraska, and tbe ordinances of tbe city, “so far as relates to the matters in the bond.” There is no provision in tbe statute authorizing such bond, and there is no power conferred on tbe city authorities to provide for or accept such bond; hence, tbe bond and tbe proceedings of tbe city authorities in tbe matter are nullities. The rule of law is well settled, that statutes conferring power upon municipal officers must be strictly construed. And tbe doctrine that municipal bodies can exercise only such powers as are especially granted them, or such as are necessary to carry into effect tbe powers expressly granted, is too well established to cite authorities in support of it. Vide, The Sioux City und Pacific R. R. v. Washington County, ante page 30. Again, tbe law having clearly provided tbe course to be pursued in applications for license, and tbe nature and condition of tbe bond, and tbe party to whom it must be made, all other modes of procedure are excluded. Eor these reasons we think tbe demurrer was rightly sustained by tbe district court, and its judgment ought to be affirmed. Judgment aeeiemed. Mr. Justice Maxwell concurs.