this state and of the city of Lincoln, on be- the public health or public morals, but is law. half of himself, William M. Dennis, the ful in itself. It is further stated that the Lincoln Loan Company, and the National legislation is not directed against all engaged Loan Company, other taxpayers similarly in the business of loaning money, is not disituated, against the city of Lincoln to enjoin rected against those loaning money for hire, the collection of an occupation tax of $50 per year on the business or occupation of loaning money on chattel security. A restraining order was granted, but on the trial of the cause the order was vacated, the plaintiff's action was dismissed, and from that judgment he brought the case to this court. After the cause was docketed here, the plaintiff departed this life, and William M. Dennis, one of the parties in interest, was allowed to prosecute the appeal. Many reasons are assigned for a reversal of the judgment of the district court, but only three of them are argued in the brief of the appellant. Assignments of error not mentioned in the plaintiff's brief will be treated as waived and will not be considered by the court. There is no dispute about the facts of this case. It appears by the stipulation, found in the bill of exceptions, that by section 9 of the general occupation tax ordinance of the city of Lincoln it was provided as follows: “Any person, firm or corporation engaged in the business of loaning money upon chattel security shall pay an occupation tax of $50 per year." It was further stipulated that the school and sanitary districts, the county of Lancaster, and the state of Nebraska have assessed taxes against the property of the plaintiff proportionately to the taxes assessed against the property of others, in addi but is directed arbitrarily and without reason against those engaged in the business of loaning money upon chattel security, without paying the municipal government for the privilege; and a failure to pay the tax is unlawfully made the subject of punishment by a fine or imprisonment. These questions have been ably presented by appellant's counsel, and it may be conceded that there is some conflict in the authorities; but, after an exhaustive review of the judicial decisions in this and other states, we are of opinion that the ordinance in question is sustained by the greater number and better considered cases. All such taxes [3] The charter of the defendant city provides, among other things, that the city shall have the power "to raise revenues by levying and collecting a license or occupation tax on any person, partnership, corporation or business within the limits of the city, and regulate the same by ordinance, except as otherwise in this act provided. shall be uniform in respect to the class upon which they are imposed; Provided, however, that all scientific and literary lectures and entertainments shall be exempt from such taxation as well as concerts and all other musical entertainments given, exclusively by Comp. St. 1911, c. the citizens of the city." 13, art. 1, § 129, subd. 14. City Council of Augusta v. Clark & Co., 124 Ga. 254, 52 S. E. 881, was a case where tion to the tax provided for by the general the city imposed an occupation tax upon per tax ordinance, and the city of Lincoln has not assumed nor attempted in any manner to regulate the business of loaning money upon chattel security otherwise than requiring an occupation tax of those engaged in that busi ness. It is alleged in the plaintiff's petition that the ordinances of the defendant city provide for the collection of the occupation tax in question by a civil suit in any court of competent jurisdiction, and further that any person refusing to pay the tax shall be liable to a fine and imprisonment. We find no evidence in the record tending to support the last-mentioned allegation. The record contains some evidence, however, tending to sup port the allegation that the city has threatened to and is about to collect the tax in question. sons loaning money upon personal property ent class from chartered banks, negotiators or personal security, placing them in a differof loans on real estate, real estate agents, and dealers in bonds and stocks. It was contended that the ordinance was void for the reasons urged by appellant in the case at bar. It was there said: "When a city charter authorizes a municipality to require by ordinance a license tax of persons engaged in any occupation, trade, or business carried on within the corporate limits of the city, the municipal authorities may by ordinance classify the different occupations for taxation, and impose different taxes in different amounts upon the different classes; and a classification made by such authorities will not be interfered with by the courts, unless it manifestly appears that the classification is unreasonable and arbitrary.” [1, 2] 1. Appellant assails the validity of the ordinance in question as violative of the [4] It was further said: "The classificafourteenth amendment to the federal Con- tion of persons lending money upon persona? stitution, which provides that: "No state property or personal security in a different shall make or enforce any law which shall class from chartered banks, negotiators of abridge the privileges or immunities of citi- loans on reality, real estate agents, and dealzens of the United States." It is argued that ers in bonds and stocks, and the imposition the business in question is not such as the of a tax differing in amount upon such money Legislature might prohibit outright, because lenders from that imposed upon such other ordinance providing for such classification | wish to see it. The only thing he is forbidwill be declared void as being entirely arbitrary." We find that the rule above stated is supported by Cowart v. City Council of Greenville, 67 S. C. 35, 45 S. E. 122; State v. Wickenhoefer, 6 Pennewill (Del.) 120, 64 Atl. 273; Bradley & Co. v. City of Richmond, 110 Va. 521, 66 S. E. 872; Dewey v. Richardson, 206 Mass. 430, 92 N. E. 708; Sanning v. City of Cincinnati, 81 Ohio St. 142, 90 N. E. 125, 25 L. R. A. (N. S.) 686. The Supreme Court of the United States in Field v. Barber Asphalt Paving Co., 194 U. S. 618, 24 Sup. Ct. 784, 48 L. Ed. 1142, said: "It is not the purpose of the fourteenth amendment to prevent the states from classifying the subjects of legislation and making different regulations as to the property of different individuals differently situated. The provision of the federal Constitution is satisfied if all persons similarly situated are treated alike in privileges conferred or liabilities imposed." Kentucky Railroad Tax Cases, 115 U. S. 321, 6 Sup. Ct. 57, 29 L. Ed. 414; Hayes v. State of Missouri, 120 U. S. 68, 7 Sup. Ct. 350, 30 L. Ed. 578; Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 18 Sup. Ct. 594, 42 L. Ed. 1037; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666; In re Home Discount Co. (D. C.) 147 Fed. 538. Adopting the views expressed by the foregoing authorities, we are of opinion that the ordinance in question is not violative of the fourteenth amendment. [5] 2. It is next contended that the ordinance is violative of the Constitution of this state in that it contravenes section 3, art. 1, of that instrument, which provides: "No person shall be deprived of life, liberty or property without due process of law." This contention seems to have been conclusively answered in Rosenbloom v. State, 64 Neb. 342, 89 N. W. 1053, 57 L. R. A. 922, wherein State v. Green, 27 Neb. 64, 42 N. W. 913, Magneau v. City of Fremont, 30 Neb. 843, 47 N. W. 280, 9 L. R. A. 786, 27 Am. St. Rep. 436, and Templeton v. City of Tekamah, 32 Neb. 542, 49 N. W. 373 (cases cited by counsel for the appellant), are expressly overruled. In that case the court said: "The argument is that the law taxing peddlers trenches in various ways upon the Constitution, and is therefore void. It is said in the first place that the object of the legislation is to raise county revenue, and that revenue measures cannot, in this state, be enforced by the infliction of fines or penalties. We agree with counsel in the view that the primary and paramount, if not the only, object of the law is to obtain revenue by imposing a tax upon the business of peddling. The only thing the peddler is required to do is to pay his tax and exhibit the appropriate evidence of payment to any person who may den to do is to pursue his calling without having first paid the tax. No police inspection or supervision is provided for. If the things commanded and forbidden are to be regarded as features of regulation or repression, they are not, to say the least, so pronounced or conspicuous as to suggest the idea that the law is referable to the police power rather than to the power of taxation. But granting the contention of counsel for defendant that the statute is a revenue measure, pure and simple, we are not able to discover any valid objection to the enforcement of it in the manner provided by the Legislature." In Village of Dodge v. Guidinger, 87 Neb. 349, 127 N. W. 122, 138 Am. St. Rep. 494, it appears that the trustees of the village, for the purpose of raising revenue, passed an ordinance levying a tax upon the occupation of practicing medicine within the village limits. The validity of this ordinance was challenged, and upon an appeal to this court it was said: "The defendant argues that the plaintiff may only license such vocations as it may regulate in the exercise of the police power, and that the practice of medicine is not subject to such regulations. The statute authorizes the imposition of occupation taxes for the purpose of raising revenue. The taxing power, therefore, is the source of the plaintiff's authority to demand from the defendant the tax in question. The power of the Legislature to raise revenue by levying a license tax upon occupations is elaborately discussed and definitely determined in Rosenbloom v. State, 64 Neb. 342 [89 N. W. 1053, 57 L. R. A. 922]. See, also, State v. Boyd, 63 Neb. 829 [89 N. W. 417, 58 L. R. A. 108]. The question is no longer an open one in this state. The ordinance imposes a uniform tax upon the occupation of practicing medicine in the village of Dodge. There is no suggestion that the amount is excessive; nor would the record support that contention if made." In the case at bar the city, by the ordinance complained of, imposed an occupation tax of $50 per year upon any person, firm, or corporation engaged in the business of loaning money upon chattel security. It is not claimed by the appellant that this tax is excessive; and it is apparent that it applies equally and without discrimination to all persons, firms, or corporations engaged in that particular occupation. Therefore, it is not objectionable on the ground of being class legislation. Trainor v. Maverick Loan & Trust Co., 80 Neb. 626, 114 N. W. 932; Aachen & Munich Fire Ins. Co. v. City of Omaha, 72 Neb. 518, 101 N. W. 3; Nebraska Telephone Co. v. City of Lincoln, 82 Neb. 59, 117 N. W. 284, 28 L. R. A. (N. S.) 221. Neither is the ordinance vulnerable to the objection that it imposes double taxation. Mercantile Incorporating Co. v. Junkin, 85 Neb. 561, 123 N. W. 1055, 19 Ann. Cas. 269; Ne-ecution. Gran v. Houston, 45 Neb. 813, 64 N. braska Telephone Co. v. City of Lincoln, W. 245. supra; City of York v. Chicago, B. & Q. R. Co., 56 Neb. 572, 76 N. W. 1065. From a consideration of the foregoing authorities, we are of opinion that the demurrer to the plaintiff's evidence was properly sustained, and the trial court did not err in setting aside the temporary restraining order and dismissing the plaintiff's action. Cent. Dig. §§ 1660-1677; Dec. Dig. § 383.*] [Ed. Note.-For other cases, see Evidence, 5. APPEAL AND ERROR (§ 301*)—OBJECTION BELOW-MOTION FOR NEW TRIAL-EXCESSIVE VERDICT. An assignment that the verdict is excessive, not made in the motion for a new trial and called to the attention of the trial court, will not be considered in this court. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. The judgment of the district court is there- Dig. § 301.*] fore affirmed. 6. INTOXICATING REESE, C. J., and FAWCETT and SEDGWICK, JJ., concur. LETTON, ROSE, and HAMER, JJ., not sitting. BULGER v. PRENICA et al. (No. 17,193.) (Supreme Court of Nebraska. May 17, 1913.) (Syllabus by the Court.) 1. INTOXICATING LIQUORS (§ 309*)-CIVIL DAMAGES-ACTION ON BOND EVIDENCE. In this, an action upon a saloon keeper's bond for damages for loss of support by causing the plaintiff's husband to become an habitual drunkard, on cross-examination objection to certain questions with reference to his habits prior to the time of sale of the liquor were sustained. There being other testimony in the record on this point, practically undisputed, held, not prejudicial error. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 444-448; Dec. Dig. § 309.*] 2. INTOXICATING LIQUORS (§ DAMAGES EVIDENCE. 309*)—CIVIL By supplemental allegations in the petition it is charged that plaintiff's husband died after this action was begun as a result of the habitual drunkenness caused by the defendants. A medical witness was permitted to testify as an expert to the effect of the excessive use of intoxicants upon the human system, more especially with reference to its tendency to impair vitality and lessen the resistant power to disease. He testified to his personal knowledge of the impaired physical condition of the deceased due to excessive drinking; he having been acquainted with the deceased for years and having examined him. Held, under the issues, this evidence was properly received. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 444-448; Dec. Dig. § 309.*] 3. INTOXICATING LIQUORS (§ 293*)-CIVIL DAMAGES-ACTION ON BOND-ESTOPPEL OF SURETIES. LIQUORS (8 312*)-CIVIL DAMAGES-EXTENT OF LIABILITY. Persons engaged in selling intoxicating liqlaws of this state, are liable in damages for uors, under licenses obtained pursuant to the all the legitimate and proximate consequences of their traffic, and, if they have induced habitual drunkenness in a previously sober and industrious man, they are liable for a consequent thriftless and dissipated career followed by him after they have ceased to furnish him with liqStahnka v. Kreitle, 66 Neb. 829, 92 N. uors. W. 1042. 7. INTOXICATING LIQUORS (§ 15*)-STATUTE— The question as to the constitutionality of chapter 61, Laws 1881, known as the "Slocumb Law," has been repeatedly decided by this court and will not be re-examined. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 17, 18; Dec. Dig. § 15.*] Appeal from District Court, Lancaster County; Frost, Judge. Action by May Bulger against Louis W. Prenica and others. From judgment for plaintiff, defendants appeal. Affirmed. I. J. Dunn, of Omaha, D. W. Livingston, of Nebraska City, Morning & Ledwith, of Lincoln, and A. G. Ellick and H. C. Brome, both of Omaha, for appellants. A. P. Moran, of Nebraska City, and W. B. Comstock, of Lincoln, for appellee. LETTON, J. This is an action against two saloon keepers and the sureties upon their respective bonds to recover damages for loss of support and means of subsistence occasioned, as alleged, by reason of Charles Bulger, the plaintiff's husband, having been rendered an habitual drunkard by liquor sold to him by each of the defendant liquor dealers. The answer of the principals Where a surety company has entered into the bond which is necessary to procure a saloon amounts to a general denial; the surety comlicense, and the principal has received the li-panies each admits its qualifications to execense and become liable for damages to individ-cute the bonds, and deny generally the alleuals by reason of the traffic, the surety is estopped to plead that there was no valid ordi- gations of the petition. The Bankers' Surenance in force at the time the license was issued. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 428; Dec. Dig. § 293.*] 4. EVIDENCE (§ 383*)-EXECUTION OF BONDAUTHENTICATED COPY. A properly authenticated copy of a liquor dealer's bond is sufficient prima facie proof of the existence of the bond and of its proper ex ty Company also alleged that there was no valid ordinance in force in Nebraska City authorizing the issuance of the liquor license of Prenica. Afterwards the plaintiff was granted leave to amend her petition by attaching supplementary allegations setting forth that on December 19, 1910, Bulger died; that his death was caused and contrib uted to by the habitual drunkenness caused, and excessive use of intoxicating liquors furnished, by the defendants to him as alleged in the petition. The reply pleads that the facts with regard to the issuance of the licenses estop the sureties from denying the existence of a valid ordinance. The jury rendered a verdict for the plaintiff in the sum of $2,750, and from this judgment the defendants have appealed. The testimony shows that Bulger was a man about 40 years of age, a painter and decorator, and a skilled workman. He had been married, at the time of his death, for about 20 years. There were four children in the family, ranging from 11 to 19 years of age; the oldest being a married woman, who is not a party to the suit. Mrs. Bulger testifies that he supported the family until the latter part of December, 1907, or the early part of 1908, and that she and the oldest boy have practically supported the family ever since that time; that up to December, 1907, he contributed $8 or $10 a week to the support of the family, paid the bills and the house rent, but that from December, 1907, to his death in December, 1910, he contributed only about $60 to the family support; that his habits as to the use of liquor and neglect of work changed materially after 1907; that prior to that time he would sometimes go five or six months and not touch liquor, but that after that he was drunk most of the time. While attending his mother's funeral he was taken sick and died of pneumonia at her home in Missouri in December, 1910. A number of other witness who were familiar with Bulger's habits also testify. It seems clearly established that while Bulger was what is usually termed a moderate drinker, and he would occasionally, prior to 1907, indulge in drinking bouts of several days, he would also abstain entirely, sometimes for months, but that from the time mentioned until October before his death his habits became steadily worse, and the evidences of habitual intoxication were obvious. Several witnesses testify directly to his procuring liquor from one of the defendants, and other witnesses to facts and circumstances which warranted the jury in believing that he was furnished intoxicants in the saloon of the other liquor dealer. The testimony of some of the witnesses was of such a character that the jury might well have rejected it entirely if other facts had not furnished corroboration. One witness at least seems to have been pretty successfully impeached. But there was sufficient evidence of the sales, if the jury believed the testimony, to support the verdict. A large number of assignments of error are made. Some appear to be as to matters not prejudicial, which will not be noticed; others may be grouped, since the proper limits of this opinion will not permit of all being spoken of. [1] 1. On cross-examination Mrs. Bulger was asked whether her husband indulged in intoxicating liquors at the time of his marriage. An objection to this question was sustained as immaterial and this is the first point upon which error is assigned. We think the court was right. There was no dispute but that he was an occasional drinker up to the time when it is charged the defendants caused him to become an habitual drunkard. For nearly 20 years he had supported his family, and they had no cause for complaint on that score until the later years of his life. The question and answer could throw no new light upon the issues. 2. A question as to Bulger's habits prior to 1907 was excluded, probably as not proper cross-examination, and this is complained of. It was not strictly within the limits of the direct examination. It might have been just as well to allow it to be answered, but, since the record is full of the history of Bulger's habits, its exclusion was not prejudicial. [2] 3. Over the objection of defendant, Dr. Carriker was permitted to tell as a medical expert the effect of the excessive use of liquor upon the human system. He testified that he knew and had examined Bulger, and that after 1907 he was always under the influence of liquor. He was then inquired of as to the power of Bulger to resist disease after that time, and testified that his vitality was impaired to an extent that he could not resist disease to any considerable degree, and especially to resist pneumonia. Objections were made that these inquiries had no bearing upon any issue in the case and sought without any foundation to connect the death of Bulger with the use of intoxicating liquors. These objections were all overruled, and defendants excepted. On cross-examination this witness testified as to his knowledge and acquaintance with Bulger's condition from 1905; that his condition was worse in 1908 than it was in the fall of 1907, and in September, 1908, than it was in May. Twelve of the assignments of error refer to the evidence of Dr. Carriker and of Mrs. Bulger as to the nature of her husband's illness and the cause of his death; the gist of the complaint being that it was not shown that the furnishing of liquor and the death of Bulger had the relation of cause and effect. A number of cases from this and other courts are cited to establish the proposition that, while it is not essential that the furnishing of the liquor must be the sole, immediate cause of the injury, yet it must have contributed in an appreciable degree. The petition prays damages for loss of means of support. If the deceased was in such a feeble and physically impaired condition, caused by habitual drunkenness induced by the acts of the defendants, that he was unable to resist the inroads of disease, this would be as much a result of the traffic [5] 6. The assignment that the verdict of the jury is excessive appears for the first time in the briefs in this court and does not appear in any motions filed by any of the defendants for a new trial. We have repeatedly held that such questions will not be reviewed in this court if they have not been first called to the attention of the trial court and an adverse ruling made thereon. This assignment, therefore, cannot be con as would be his inability to perform manual, the objection of the sureties that they were labor on account of physical weakness pro- incompetent and no proper foundation laid duced by the excessive use of intoxicants. for their admission. The Legislature, by In the latter case no court would deny the section 15, c. 61, Laws 1881 (section 7165, right to recover. Acken v. Tinglehoff, 83 | Ann. St. 1911), has made a properly auNeb. 296, 119 N. W. 456; Selders v. Broth-thenticated copy of the bond evidence of ers, 88 Neb. 61, 129 N. W. 170. In this case its execution. This is prima facie evidence the physical condition of the deceased was and is sufficient in the absence of opposing such that, even if the element of death had testimony. The statute merely gives effect not entered into consideration at all, the to the presumption of regularity and changverdict did no more than respond to the es the burden of proof. This the Legislature damages prayed. In Acken v. Tinglehoff, has power to do. Gran v. Houston, 45 Neb. supra, although the husband was still living, 813, 834, 64 N. W. 245. his ability to resist the vicious appetite had been so destroyed, and his physical ability to earn a livelihood so impaired, that the court allowed a recovery on the theory that the man was a wreck so far as the support of his family was concerned, his usefulness gone, and his wife might as well have been his widow. The habit of excessive drinking and appetite for liquor created in Bulger was so strong that a few months before his death the deprivation of the stimulant re-sidered. sulted in hallucinations. His condition was such that a verdict for the same amount would not have been held excessive by this court on the evidence produced. Under these circumstances, we deem it unnecessary to enter into extended dialectics as to remote and proximate cause, and as to whether the arunkenness or the disease was the causative force or agency in producing the death. Whether the actual death was the result of the disease or not, the condition of Bulger in his later days was such as to justify the verdict, and hence proof of his death could not be prejudicial, even if erroneous, as to which we express no opinion. [3] 4. Instruction No. 12 is attacked be cause it withdrew from the jury the evidence that had been received as to whether there was a valid ordinance in force at the time the licenses were issued. We are of opinion that when a surety company has entered into the bond which is necessary to procure a saloon license for its principal, and the principal has received the license and become liable for damages to individuals by reason of the traffic, the surety is estopped to plead that there was no valid ordinance in force at the time the license was issued. If such was the fact, the sureties should have ascertained it before their undertaking put the principal in a position to engage in the traffic and cause the damages complained of. [4] 5. In the same instruction the jury were told that they should consider the bonds as valid and binding for the period covered. In this connection the defendants complain that there was no evidence of the execution of the bonds, and that the instruction was erroneous. The original bonds were not introduced in evidence, but certified copies of the originals on file in the office of [6] 7. Defendants complain that their demurrers on the ground of misjoinder of causes of action should have been sustained, and that defendants, although they answered over, have preserved the point by setting it up in the answer. The petition charged that the damages were caused and contributed to by sales of liquor furnished by these defendants between December 1, 1907, and May 1, 1908. It is said that neither Prenica nor Schneider nor their sureties would be liable for sales in Schneider's saloon after May 1, 1908, yet the petition charged that Bulger became intoxicated in Schneider's saloon in November, 1909. Prenica was not in business after May 1, 1908, nor was the same surety on Schneider's bond after that date. The petition, however, fairly construed, pleads that Prenica and Schneider by sales between December 1, 1907, and May 1, 1908, caused Bulger to become an habitual drunkard, and that he continued from about December 1, 1907, to drink and become intoxicated, and on the 22d of November, 1909, became drunk in Schneider's saloon. If defendants "induced habitual drunkenness in a previously sober and industrious man, they are liable for a consequent thriftless and dissipated career, followed by him, after they have ceased to furnish him with liquor." Stahnka v. Kreitle, 66 Neb. 829, 92 N. W. 1042. 8. Complaint is made as to the giving of certain instructions and as to the refusal to give others. The law in such cases is well settled in this state. Taking the charge of the court as a whole, we find it not to be subject to misapprehension and can find nothing in it of which defendants are entitled to complain. [7] 9. An attack is again made on the constitutionality of the act of 1881, known as |