Bingham County v. Fidelity & Deposit Co.

ON PETITION FOR REHEARING.

(February 18, 1907.)

AILSHIE, C. J.

The appellant, Fidelity and Deposit Company, has filed a petition for rehearing, in which it is alleged that this case was determined upon a question not argued or *44presented by counsel on either side at the hearing either in the lower court or on appeal. In the petition counsel say: “The theory adopted by the court was not only not argued by counsel for either party, but was not hinted at in the pleadings.” Counsel is mistaken, as we view the ease, and by a reference to their brief upon the original hearing of the case, it will be seen that they submitted to this court the very question as to when the moneys paid to the sheriff for liquor licenses became the money of the county. The question, as stated by counsel in their original brief and from which we quoté, is as follows: “The question is'not whether the sheriff rightfully received these moneys, but solely when, if ever, these moneys first belonged to the county, and when, if ever, the obligation first attached to the sheriff to pay same to the county treasurer. ’ ’

Proceeding upon the theory that the question as stated was really the decisive question submitted to us upon the original hearing of this case, we determined and decided that point and' answered the query as indicated in the original opinion. We held there that moneys paid to the sheriff for liquor license immediately became the property of the county, either upon the applicant’s starting up in the saloon business, or in case he does not previously commence business, then upon receiving a license under direction of the board of county commissioners. It is argued by counsel that this holding will create great confusion, and will amount to authorizing an applicant to proceed in the saloon business without giving k bond or receiving a license. We' do not understand how any confusion can arise out of such a holding. If he pays the money to the sheriff for a liquor license and thereafter opens up business, even if he should never receive a license, he will be estopped and precluded from claiming or recovering the money after once engaging in the business. On the other hand, he will have no authority in law or fact to engage in the business until he furnishes a bond which is approved by the board of commissioners and a license is ordered issued to him. If he does engage in the business prior to such time, he incurs the risk *45of being arrested for violation of the penal laws and prosecuted and punished accordingly.

In reference to the license money paid to the sheriff by one Eckstine, counsel insists that there is no evidence in the records to show that Eckstine actually engaged in the saloon business prior to the annexation of Victor to Fremont county. It is true that the evidence is very meager as to when he actually commenced business, but it is sufficient to establish a prima facie showing that he began prior to the date of annexation. In his letter to the sheriff under date of November 7th, he stated: “We will open business to-day.” While this is not positive evidence that he actually opened business, it is sufficient prima facie showing to that effect and sufficient in the absence of any contrary showing.. In modern times we have grown charitable, and give all men the prima facie presumption of telling the truth, however violent or unfounded that presumption may prove to be in some particular instances. The petition presents no sufficient reason for granting a rehearing in this case, and it is accordingly denied.

Sullivan, J., concurs.