Omaha daily bee., 1915-04-17
Nebraska
COURT CONSTITUTES
GIBSON SALOON LAW
High Judges Hold Excise Board
Need Not GO Behind Records
Of Realty Holdings.
POSITION OF BODY IS REVERSED
From a staff Corrcspondent)


court today that body holds in the Hsnff-
Enos saloon case from stanton county,
invaolving a construction Of tho Gibson
Law Of 1907. that an excise board need
not 70 behind the records 20 find out who
really owns leased property.
Tho evidence In the case proved that
Mrs Adolph storZ was majority owner Of
tho stock in the Independent Realty COM
psny. the evidence tending to show that
this company was merely a holding COM
pany for the brewery company.
In the decision the court reverses itself.
rehearing having been granted on a
former holding The cab is one appealed
from stanton county by the remonstrants
against the granting OF a saloon license
10 A. L. Hanff Of the town OF Stanton.
The remonstrants O. A. Enos and others
were overruied by the district court and
appealed. Tho high court, reversing
Its former decision, sffirms the lower
court
The court was not unanimous Judge
sedgwick writes the majority opinion,
which is coneurred In by Judge Barnes.
dissenting opinion Is flied by Rose, in
which Judge Letton concurs
Suggests quo waFranto suit.
posed to lease In this case was held by
the independent eFlaity company The re-
monstrators urged tho Gibson law upon
the excise board. The court holds that
the statute does not expressly provide and
should not be 30 construed, that the ex-
else board shall investigate the title OF
the lessee when Il appears fair and regu-
lar on the record. Inquiries as TO the good
F.la .F fka NJ he
the high court should be left TO the regu-
lar processes Of the law. for instance. n
quo warranto suit against the alleged
hOiding company would be In order
Tho excise board. according TO Judge
sedgwick. is only an administrative body
and Il was not the Intention OF the lesis-
iature 70 give to It judicial functions. Its
rulings are subject to appeal to the courts,
IL Is admitted. butthe appellate bodies
would be limited to the records put In
bar before the administrative body The
court cites for support the holding OF the
United states supreme court over the
Commodities clause" OF the Hepburn
act, forbidding railroads from owning en-
terprises not integral 20 the business OF
a common carrier.
Judge Rose IN his dissenting opinion
lreets sqnarely the issue outlined by the
majority and argues that judicial func-
tions have for years been assigned to ad-
ministrative bodies. citing the railway
commission among others Moreover. he
argues the excise boards now examine
into the title Of the real estate OF petit
toners, whom must be freeholders.
0pfnfon OF Court. f
The opinion Of the court Il a. foIIows:
/ Section 2sas. Rev. ST.. 1913. Is not
limited 20 oonyeyancee 70 defraud cred
ftors IL expressly provides that convey
ances made 10 dcfraud creditors 'or per-
sons" are weld. The language II broad
enough. in the light OF the common law,
tent and purpose 10 evade the provision
Of the Gibson act' forbiddlng the leas-
fng Of building for saloon purposes BY
a. ia husband who owns enthusiastically
All OF the stock IN corporation procuros
another corporation 10 b organised and
substantially all OF its stock to be Issued
20 his wife. and thereupon the first cor
poration transfers It's property 70 the new
corporation. tho transfer H. equivalen to
the transfer OF property directly from
husband TO wife, within the meaning OF
section 16fs. Rev. 81, 1913.
3 II such transfer IL made for the pur-
pose Of enabling the first corporation. a
buildings for the purpose OF Teasing them
AZ saloons. the purpose would be Illegal
and II known by the stockholders OF the
new corporation such corporation might
Where a statute n susceptible OF
TIVE construction. by one Of which grave
and doubtful constitutional questions
questions are avoided. our duty Is 70
adept the latter" United states against
Delaware a Hudson company. 1a y. s..
Not for Confisoation.
While the lanimla falra n x.ot s.fit ho.tN
power to enact statute In the legitimate
e.erelse OF its police power although II
might result IN injury to some private in
terest, II Is also undoubtedly true that a
stetute, the purpose OF which was
primarily and principally the destruction
o. property. would violate our funda-
that IN enactins such statute ' the iesisIa .
tnre Intended q construction which, al
tnough unnecessary TO the furtherance OF
the main purpose OF the statute, might
result IN the arbitrary confiscation of
property. II the statute viii admit OF a
more reasonable construction.
The so-eafled Gibson act" laws
1871 CHI. s., should not be construed 80
that II might result In the unnecessary
aestrnetion OF property values, II Il Is
capable OF other construction which
aimed at.
Z. Questions Of fraudulent conyeyances
q property are generally investigated by
equity powers. They are usually com
plicated and difficult questions. This
statute provides no adequate means OF
determining such complicated and i'm
lorfant and far-reaching question.
\ There Is no direct provision In the
statute requiring the licensing board &c
investigate such questions or TO REFUSE !
license because OF doubts In regard 10 the
good fsith OF the title OF the apparent
owner OF the property where the aDpli-
cant expects 70 operate his saloon
p Under such circumstances ~ the legis-
lature had Intended that such inVestiga-
lions must be made BY this board and
that no license should be issued where
the licensing board should find that there
was fraud or other infirInity In the title
OF the party from whom the applicant
proposed 20 lease when that title appea red
10 be fair and regular upon the record, II
seems probable that the legislature would
not have left such intention IN doubt. II
ts a more reasonable construction OF thi,
statute that the intention was 20 leave
such Inquiries 10 the ordinary process Of
the law.
10 The mayor OF a city Of the second
class having less than b.o00 inhabitanti
council Il equally divided
City Council 90 Use Discretion.
II. II Il confided 70 the discretion OF IN,
city council 70 determine the location OF I
saloon licensed by the council
II, II. upon application for saloon n
cense. the remonstrants allege that tn
surety company executing the bond ten
dered was not licensed to do business II
this state. or becoming such surety Wa
not villain the power OF such bondinl