Hurber v. Baugh

¶1It is proper to observe here that the proceeding in question before the mayor, and on which plaintiff’s license was revoked, was a charge for selling beer to a person while in a state of intoxication. The violation of the ordinance, with which defendant was charged, had direct reference to the business in which he was authorized to engage by virtue of his license. The Revision of 1860, Sec. 1072, which was in force at the time of the passage of the ordinance, provided that “by-laws and ordinances of municipal corporations *516may be enforced by the imposition of fines, penalties and forfeitures.”

¶2This section was repealed by section 482 of the Code, which provides that obedience to ordinances shall be enforced “ by fine not exceeding one hundred dollars, or by imprisonment not exceeding thirty days.”

¶3Counsel for appellee insists that as no forfeiture is provided by the Code, there is no power in the city to enfore the ordinance in question. In other words, it is claimed that the license in question is property, and that a municipal corporation under the Code has no power to forfeit it.

¶4í licenseoFmmücipai corporation. It may be conceded that the omission of the word forfeiture from Sec. 482 of the Code operates as a repeal of all ordinances providing for forfeitures in cities incorporated under the general law. But the question arjseSj js the revoking of this license a forfeiture? Is the license property, in such sense that a revocation of it may be said to be a forfeiture? We are are of opinion that it is not. If the city, council should, by license or permit, allow a person to keep a billiard hall, and provide that for keeping the same open at an unreasonable hour, the billiard tables should be forfeited to the city and sold, we have no doubt this would be beyond the power of the city. Or, if the city should provide that for immoderate driving in the streets, the horse so driven should be forfeited, this would be in excess of municipal power. But, in the case first supposed, would any one claim that for violation of the license or permit, the same could not lawfully be revoked?

¶5In this case the plaintiff took his license from the city with the distinct provision written upon it, that “ a violation of any of the ordinances of the city by the party holding this license, shall work a forfeiture of the same.” It was somewhat in the nature of a reservation, evidently intended as a safeguard against allowing improper persons to hold license, and the plaintiff took it with a full understanding of the consequences attendant upon a violation of the ordinances of the city. Having entered into the stipulation, so to speak, with the city, he cannot be heard to complain that while engaged *517in prosecuting the very business permitted by the license, he violated an ordinance of the city, and the very terms of the license itself, and that, therefore, his license was revoked.

¶6Counsel for appellee cite among other cases that of Heise v. Town Council, etc., 6 Rich (S. C.), 404. This case holds that license which was granted and was paid for, was essentially property, and as the council could only impose junes, that it had no power to ordain a forfeiture of the license. We have been unable to find any other authority holding the same doctrine, and we believe it to be the better rule to hold that where, as in this case, the license itself provides for its own revocation, that it may be declared void in a proper case made.

¶7Ee VERSED.