¶1concurring.
¶2It is stated in the majority opinion, in substance, that we ought not to assume that, in enacting the so-called Gibson act, thé legislature intended that it should be so construed as to result in the confiscation of the vast amount of property which at one time was owned by the brewing company, if such construction can reasonably be avoided. As I understand the question, such would be the effect of the act if we should hold that the licensing board had the power and was required to determine the rights of the Independent Eealty Company to own, hold and control such real estate. This question is a judicial one, and should be determined by a court of equity in a case brought directly for that purpose, and in which the Independent Eealty Company is a party. This question should not be decided by an administrative body, such as a city council or village board. It is shown by the record that the title to the realty once owned by the Storz Brewing Company is now of record in the Independent Eealty Company. It is regular and fair upon its face. Its title has not been assailed by the state in any proceeding in a court having jurisdiction to determine the bona fides of its title. As I under*258stand the question, the title of the realty company should not be determined by an administrative body upon the mere suggestion that the property still belongs to the brewing company. This question cannot properly be disposed of by saying that the statute is so plain that a village board or city council is bound to refuse a license to sell malt, spirituous or vinous liquors to an applicant, upon the suggestion that the building in which the applicant proposes to conduct his business is owned and controlled by a brewing company, in a proceeding to which the owner of the title is not a party. It is not a proper disposition of this far-reaching and important question to say that the statute is too plain for misinterpretation or misconstruction. The question should be determined in an action for that purpose, brought in a court competent to determine it, and its judgment should be such that a licensing board would have no difficulty in following the rule announced by the court. Otherwise we might have the good faith of.the Independent Realty Company’s title upheld in one village and denied in others.
¶3I therefore concur in the majority opinion.
¶4dissenting.
¶5The controlling question presented by the record is very simple, and its proper solution is free from difficulty. Can a village board issue a valid license authorizing the sale of intoxicating liquors in a building controlled by a manufacturer of beer? The statute says, “No,” in language too plain for misinterpretation or misconstruction. Rev. St. 1913, sec. 3892. The power of the legislature to pass such a law and to make it applicable to present owners of property devoted to saloon purposes has been affirmed by the supreme court of the United States as follows: “Lawful state legislation, in the exercise of the police powers of the state, to prohibit the manufacture and sale within the state of spirituous, malt, vinous, fermented, or other intoxicating liquors, to be used as a beverage, may be enforced against persons who, at the time, happen to own property whose chief value consists in' its fitness for such *259manufacturing purposes, without compensating them for the diminution in its value resulting from such prohibitory enactments.” Mugler v. Kansas, 128 U. S. 623.
¶6The arm of sovereignty created by law to withhold from an applicant a license to sell intoxicating liquors in a building controlled by a manufacturer of beer is the licensing board. Contrary to the pronouncement of the majority, the legislature has in unmistakable terms clothed that board with the machinery and the power to investigate and determine whether a proposed site for a saloon is owned or controlled by a brewer. If the licensing board makes a mistake in exercising such authority, the courts may correct it by means of an appeal. Rev. St. 1913, ch. 40. In the present case, under rules of evidence recognized by the courts of Christendom, it is shown that the licensing board, in violation of law, granted an illegal license to conduct a saloon in a building controlled by a manufacturer of beer. The legislature had power to authorize the licensing board to investigate and determine the ownership or control of a building for the purpose of granting or refusing a saloon-keeper’s license. In passing upon the sufficiency of a petition for a license to sell intoxicating liquors, the licensing boards, under legislative power recognized by this court, have, for many years, investigated and passed upon the petitioner’s title to real estate. Administrative bodies like the county board, the state board of irrigation and the state railway commission are now performing duties which affect property rights. The former judgment pronounced by this court would enforce the statute as written. The evidence is correctly stated and the law is properly applied in the first opinion. The license was canceled according to both the spirit and the letter of the statute. Enos v. Hanff, 95 Neb. 184. For these reasons, I adhere to the former decision, and dissent from that of the majority.