Sanders v. State.

it is required to exercise its power subject to the limitations and restrictions imposed by general law. A license issued by it will protect the licensee precisely to the same extent, and no further, as does a license issued by the county board for the sale of liquors outside of the municipal corporations. In either case, should the licensee sell intoxicating liquors to a minor, insane person, Indian, or idiot, or habitual drunkard, or give away or sell such liquors on Sunday, or on the day of any general or special election, the license would be no protection, but the holder would be liable to the penalty provided by the general law of the state. Neither the excise board, nor the county board, has the power to authorize the sale of liquors to any of the persons or on the days prohibited by the statute. It is clear that the mere granting of exclusive authority to the excise board to regulate and license the sale of liquor did not suspend the general liquor law. Suppose the excise board failed or refused to exercise the power conferred upon it by the legislature and neither licensed nor prohibited the sale of intoxicating liquors, could it be successfully contended that their sale in the city, under such circumstances, would not be in violation of the statute? Most assuredly not. Such a construction would place it in the power of the excise board to allow the traffic to be carried on in the territorial limits of the city by any one without restriction and without license, which was never contemplated by the law-making body. By giving effect to every part of the section no such construction as contended for by plaintiff in error is permissible.

We think counsel placed entirely too much stress upon the word "exclusive" used in the section quoted. In construing the provisions it is proper to keep in mind the previous legislation upon the subject, and the purpose of the legislature in enacting the same. Prior to 1889 authority was vested in the mayor and city council to license or prohibit the liquor traffic within the corporation. In that

Sanders v. State.

year the section under consideration was enacted, giving the power to license and prohibit the liquor business to the excise board. We agree with the trial court that the word "exclusive" was used by the legislature to bar all claim of authority over the subject of granting license by the body from which control had been taken, and that the exclusive control given the excise board over the matter is subject to the restrictions contained in the general law.

It appears in evidence that the excise board of the city of Lincoln adopted rules and regulations governing the liquor traffic. By rule 12 it is made unlawful for the licensee to sell or give away any intoxicating liquors to a minor, Indian, insane person, or habitual drunkard, or on Sunday, or the day of any general election, and prescribes a penalty for each violation of the rule. But there is no provision making it an offense to sell or give away such liquor on the day of special elections in said city. Therefore, if the state liquor law is not in force in the city of Lincoln, plaintiff in error has committed no offense and cannot be punished. The excise board has, in effect, attempted to authorize such sales on the days of special elections, which it had no power to do. In our opinion the enacting of section 2572 did not suspend the provision of 2187 within the city of Lincoln. While there are cases to the contrary, the arguments advanced in the opinions are not convincing to our mind and we decline to follow them. The conclusion we have reached is sustained by high authority. (See Gardner v. People, 20 Ill., 430; Berry v. People, 36 Id., 423; Heinssen v. State, 14 Colo., 228.) The judgment is

AFFIRMED.

THE other judges concur.

INDEX.

Abandonment. See HOMESTEADS. QUO WARRANTO, 2.

Abatement.

State v. N. Lincoln St. By. Co...........

Absconding Debtors. See VENUE, 2.

Who are. Gandy v. Jolly.............................

Account. See ASSIGNMENT. INTEREST, 4. SET-OFF.

1. Star Lubricating Oil Works v. White.....

634

536

542

2. Instructions in action upon, approved.
Court

Clark v. Van
................159-62

3. Judgment for defendant in action on, held, to be against the
clear weight of the testimony, and reversed. Aultman v.
Scheele

Accounting. See PARTNERSHIP, 2.

Acknowledgment.

Form of certificate of, set out and held sufficient. Gregory
v. Kenyon

Action Pending. See MANDAMUS, 3.

823

...644-5

1. Defense of, waived if not raised by proper pleadings.
Gregory v. Kenyon...........

648

2. Where the parties, without objection, submit a pending
controversy to another tribunal, its judgment is binding.

Id.

Actions. See REVIVOR. VENUE.

Actions Quia Timet. See REVIVOR.

Adjournment.

Record found not to show an adjourned term of the district
court at which judgment could be rendered. Sharp v.

2. An order to show cause why license should not be granted
an administrator to sell lands to pay the debts of the

estate need not set out the names of the heirs or other
interested parties. Stack v. Royce....... ...............................................833, 840
3. The district court of the county where letters of adminis-
tration were granted has exclusive original jurisdiction to
hear a petition for such license, even though the lands are
located in another county. Id............ .........833, 841-4

4. Such petition and license must be filed in the office of the
clerk of the district court for that county where adminis-
tration was granted. Id.

Advancements. See SALES, 2, 3.

Adverse Possession.

Action to foreclose tax deed held to have been barred by.

Alexander v. Pitz....................

Agency. See PRINCIPAL ANd Agent.

362

Agistment.

1. Lien of agister for keeping must be satisfied before owner
may reclaim the stock. Kroll v. Ernst........

483

2. While the lien may be waived, held, that a finding that
defendant did not surrender the stock was sustained by

PRACTICE, 2. STATUTES, 4.

..........806-7

Amendment. See ATTACHMENT, 1. CRIMINAL LAW, 14-16,

Of syllabus in opinion previously filed. Union Nat. Bank v.
Hickey

Appeal. See COUNTY BOARD 1. ERROR PROCEEDINGS. PRIN-
CIPAL AND SURETY, 3. KEVIEW.

1. Appeal from justice's to district court, by one of two gar-
nishees whose interests are distinct, does not bring up the
cause as to both. Cooper v. Speiser.........

303

500

2. Where the interests of the parties plaintiff or defendant
are so connected that the appeal necessarily brings up the
entire record, the bill of exceptions will not be quashed
for failure to serve it on all parties. Reynolds v. Dietz...... 271
3. A transcript for the supreme court filed in time is avail-
able to both parties, and may be used by a cross-appellant,
though he has not served notice of appeal, and though
appellant has voluntarily dismissed his proceeding. Shickle
. Kent.........
.........................................568, 571-2
4. The fact that cross-appellant has also filed assignments of

error will not be sufficient reason to require him to elect
as between appeal and error proceedings. Id.........568, 572-3
Appealable Order. See FINAL ORDER.

Appearance.

1. Klopp v. Water-works Co..............

808

2. Filing motion to set aside judgment under sec. 1001 of
the Code is. Leake v. Gallogly............
.........858-9

Appraisement. See EMINENT DOMAIN, 1.

Arbitration and Award. See BUILDING CONTRACTS, 2.
Award will be set aside for fraud, partiality, or misconduct
of arbitrator. Anderson v. Imhoff...

Argumentative Denials. See ONUS PROBANDI, 2.

Arson.

..........343

1. Information which charges the burning of “certain stacks
of wheat" need not set out names of owners. Burger
v. State..........

2. Where the statute requires the value of such property to
be $30, an instruction to find accused guilty if it is “of
some value" is erroneous. Id..............

Assault. See STATUTES, 4.

Binkley v. State......

397

401

Assessment. See TAXATION.

Assignment.

1. Where an account is assigned absolutely, the amount of
the consideration is immaterial as between the parties.
Barnett v. Ellis..........

2. But a mere donee takes the account subject to any defense
available against the assignor. Id.

3. Where no defense is shown, error in unduly restricting
cross-examination as to consideration is not prejudicial. Id.
Assignments for Creditors. See PREFERENCE OF CRED-

ITORS.

541

1. Are favored by the courts. Lancaster County Bank v.
Horn............
746

2. If recorded in county clerk's office are not void because
not filed with the register of deeds. Id.

3. Possession of goods by ass gnee is sufficient to charge third
parties with notice. Id.

4. A chattel mortgage by a failing debtor to secure a debt
created within nine months is not avoided by a general