The opinion of the court was delivered by
Niciiolls, C. J.This case was not tried on the merits, but dismissed on exceptions, one of which put at issue the constitutionality and legality of the ordinance on which plaintiffs claim was predicated.
It has remained under advisement in our hands for a very considerable time, at the instance of appellee’s counsel, awaiting a decision by this court in the matter of Kelly vs. Chadwick, No. 13,505, of our docket, which case, counsel stated, involved the same issues.
We have this day announced a decision in that case, the principles of which control the present one.
The judgment appealed from is erroneous, and it is hereby annulled, avoided and reversed, and this cause remanded to the District Court for a trial on the merits. Costs of appeal to be paid by the appellee. Costs of the lower court to await the judgment in the District Court.
Rehearing refused.